sion, if they choose to employ them, and they are too often careless and indifferent to the suffering they cause to the accused, and too frequently ignore his legal right to a speedy trial.1 § 37. Trials must be public. The next constitutional requirement is that the trial must be public. The object of this provision is to prevent the establishment of secret tribunals of justice, which can be made effective instruments for the oppression of the people. But there is a difficulty in determining what amount of publicity in criminal trials would satisfy this requirement of the constitution. It would not do to say that every person has a constitutional right to attend every criminal trial, whether he had an interest in the prosecution or not, for that would necessitate the construction for judicial purposes of a much larger building than is really needed for the ordinary conduct of the courts. Then, too, since this constitutional requirement was established for the protection of the accused, it would not be violating any rights of his, if the courts should be closed, in the trial of causes in which great moral turpitude is displayed, to those who are drawn thither by no real interest in the prosecution or the accused, or for the performance of a public duty, but merely for the gratification of a prurient curiosity. The admission of such persons may justly be considered injurious to the public morals, and not at all required as a protection against the oppression of star chambers. But, while it is undoubtedly true that this constitutional requirement could be satisfied, notwithstanding the public generally is excluded from attendance upon trials, where 1 While I am writing, an account of a most flagrant case of official disrespect of private rights of this character has come to my ears. In my neighborhood a man has been allowed to linger in jail on the charge of burglary, for many days, awaiting his preliminary examination, because the prosecuting attorney was in attendance upon political picnics. on account of the nature of the case public morals would likely be corrupted by an unnecessary exposure of human depravity, still it must be conceded that the present public sentiment in America is opposed to any exclusion of the public from attendance upon the sessions of the criminal courts, and an attempt of that kind, even if the court possessed the power under the constitution and laws, and that seems questionable, would raise a most dangerous storm of public indignation against the offending judge. It is only through the action of the legislature that it would be possible to impose effectively the limitations proposed. In framing these limitations, numerous difficulties would present themselves; and it would finally be ascertained that but two methods were feasible, viz.: either to leave it to the discretion of the court who shall be admitted to witness the trial, or to exclude the public altogether, and admit only the officers of the court, including members of the bar and jurors, the parties to the suit, witnesses, and others who are personally interested in the accused or the subject of the suit, and those whose presence is requested by the parties to the cause. Such is believed to be the law prevailing in Germany.1 Such a provision would seem to make the trial sufficiently public in order to protect the individual against unjust and tyrannical prosecutions, and likewise furnish the community with abundant means for enforcing a proper administration of the courts. In the same connection, it would be well, in carrying out the same object, to exclude the reporters of the ordinary newspapers. While, as a matter of course, the preserva 1 The writer remembers how, on one occasion, while he was a student of the law at the University of Gottingen, he was bidden to leave the criminal court, because the case about to be tried was one involving deep moral turpitude. This has now become a rather common practice in this country; especially in large cities like New York, in order to exclude minors and women, who are drawn thither by a prurient curiosity. tion and publication of criminal trials and statistics are necessary to the public good, it is not only unnecessary as a protection of personal liberty, that they should appear in the ordinary public print, but it is highly injurious to the public morals, as well as revolting to the sensibilities of any one possessing a fair degree of refinement. The most enterprising of the American journals of the larger cities present daily to their reading public a full history of the criminal doings of the previous day, and the length of the reports increases with the nastiness of the details. amount of moral filth, that is published in the form of reports of judicial proceedings, renders the daily paper unfit to be brought into a household of youths and maidens. There is greater danger of the corruption of the public morals through the publication of the proceedings of our criminal courts, than through the permission of attendance upon the sessions of the court. Only a few will or can avail themselves of that privilege, whereas thousands get to learn through the press of the disgusting details of crime. The § 38. Accused entitled to counsel. The State, in all criminal prosecutions, is represented by a solicitor, learned in the law, and unless the accused was likewise represented by legal counsel, he would usually be at the mercy of the court and of the prosecuting attorney. The prosecution might very easily be converted into a persecution. It was one of the most horrible features of the early common law of England, that persons accused of felonies were denied the right of counsel, the very cases in which the aid of counsel was most needed; and it was not until the present century that in England the right of counsel was guaranteed to all persons charged with crime. But in America the 1 In 1836, by Stat. 6 and 7 Will. IV., ch. 114. Before this date, English jurists indulged in the pleasing fiction that the judge will be counsel for the prisoner. "It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, undoubtedly, they were, as far as constitutional guaranty of the right of counsel in all cases, both criminal and civil, is universal, and this has been the practice back to an early day. Not only is it provided that prisoners are entitled to counsel of their own appointment, but it is now within the power of any judge of a criminal court, and in most States it is held to be his imperative duty, to appoint counsel to defend those who are too poor to employ counsel; and no attorney can refuse to act in that capacity, although he may be excused by the court on the presentation of sufficient reasons.1 On the continent of Europe, the prisoner is allowed the aid of counsel during the trial, but until the prosecuting attorney is through with his inquisitorial investigation of the prisoner, and has, by alternately threatening, coaxing, and entrapping the accused into damaging admissions, procured all the attainable evidence for the State, he is denied the privilege of counsel. The counsel gains access to his client when the prosecuting attorney is satisfied that he can get nothing more out of the poor prisoner, who finding himself perhaps for the first time in the clutches of the law, and unable to act or to speak rationally of the charge against him, will make his innocence appear to be a crime. Not so with the English and American law. From the very apprehension of the prisoner, he is entitled to the aid of counsel, and while his admissions, freely and voluntarily made, are proper evidence to establish the charge against him, it is made the duty of all the officers of the law, with they could be, to prevent undue prejudice, to guard against improper influence being excited against prisoners; but it was impossible for them to go further than this, for they could not suggest the course of defense prisoners ought to pursue; for judges only saw the deposition so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity." Baron Garrow in a charge to a grand jury, quoted in Cooley Const. Lim. *332, n. 2. 1 Wayne Co. v. Waller, 60 Pa. St. 99 (35 Am. Rep. 636); Bacon v. Wayne Co., 1 Mich. 461; Vise v. Hamilton Co., 19 Ill. 18. whom he may come into contact, to inform him that he need not under any circumstances say anything that might criminate him. Confessions of the accused, procured by promises or threats, are not legal testimony, and cannot be introduced in support of the case for the State.1 - § 39. Indictment by grand jury or by information. The prevailing criminal procedure, throughout the United States, with perhaps a few exceptions, provides in cases of felony for accusations to be made by an indictment by a grand jury. But these are matters of criminal procedure that are subject to constant change by the legislature, and it cannot be doubted that no constitutional limitation would be violated, if the grand jury system were abolished. So, also, the form of the indictment may be very minutely regulated by statute, without infringing any constitutional provision.1 1 Commonwealth v. Taylor, 5 Cush. 605; Commonwealth v. Curtis, 97 Mass. 574; Commonwealth v. Sturtivant, 117 Mass. 122; Commonwealth v. Mitchell, 117 Mass. 431; People v. Phillips, 42 N. Y. 200; People v. McMahon, 15 N. Y. 385; State v. Guild, 10 N. J. 163 (18 Am. Dec. 404); Commonwealth v. Harman, 4 Pa. St. 269; State v. Bostick, 4 Harr. 563; Thompson v. Commonwealth, 20 Gratt. 724; State v. Roberts, 1 Dev. 259; State v. Lowhorne, 66 N. C. 538; State v. Vaigneur, 5 Rich. 391; Frain v. State, 40 Ga. 529; State v. Garvey, 28 La. Ann. 955 (26 Am. Rep. 123); Boyd v. State, 2 Humph. 655; Morehead v. State, 9 Humph. 635; Austine v. State, 51 Ill. 236; State v. Brockman, 46 Mo. 566; State v. Staley, 14 Minn. 105. 2 In some of the States all accusations are now made by information filed by the prosecuting attorney, and probably in all of the States prosecutions for minor misdemeanors are begun by information. 3 Kallock v. Superior Court, 56 Cal, 229. State v. Sureties of Krohne (Wyo.), 34 P. 3; In re Boulter (Wyo.), 40 P. 520; State v. Bates (Utah), 47 P. 78; State v. Carrington (Utah), 50 P. 526; Hurtado v. People of California, 110 U. S. 516; McNulty v. People of California, 149 U. S. 645; Vincent v. People of California, 149 U. S. 648. But the United States Constitution requires indictment by grand jury in those cases in which it was required at common law. See United States Const., Amend., art. V.; Eilenbecker v. Dist. Court, 134 U. S. 31. In re Krug, 79 Fed. 308. 7 |