necessary delay, take him before a magistrate, or deliver him to a peace officer.

CHAPTER VI.

RE-TAKING, AFTER AN ESCAPE OR RESCUE.

SECTION 185. May be at any time, or in any place in the state.

186. May break open a door or window, if admittance refused.

§ 185. If a person arrested, escape or be rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him, at any time, and in any place in the state.

§ 186. To retake the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a dwelling house.

CAAPTER VII.

EXAMINATION OF THE CASE, AND DISCHARGE

OR HOLDING HIM TO ANSWER.

OF THE DEFENDANT

SECTION 187. Magistrate to inform defendant of the charge, and his right to

counsel.

188. Time to send, and sending for counsel.

189. On appearance of counsel, or waiting for him a reasonable time,

examination to proceed.

190. When to be completed. Adjournment.

191. On adjournment, defendant to he committed, or discharged on de

posit of money.

192. Form of commitment.

193. Depositions, to be read on examination, and witnesses examined. 191. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf.

195. Defendant to be informed of his right to make a statement.

196. Waiver of his right, and its effect.

197, 198. Statement, how taken.

199. How reduced to writing, and authenticated.

200. After statement or waiver, defendant's witnesses to be examined. 201. Witnesses to be kept apart.

202. Who may be present at examination.

203. Testimony, how taken and authenticated.

204. Depositions and statement, how and by whom kept.

205. Violation of last section, a misdemeanor.

206. Defendant entitled to copies of depositions and statement. 207. Defendant, when and how to be discharged.

208. When and how to be committed.

209. Order for commitment.

210. Certificate of bail being taken.

211. Order for bail, on commitment.

214. Undertaking of witnesses to appear, when and how taken. 215. Security for appearance of witnesses, when and how required. 216. Infants and married women may be required to give security for

appearance as witnesses.

217. Witness to be committed, on refusal to give security for ap

peurance.

218. Witness, unable to give security, may be conditionally examined. 219. Last section not applicable to prosecutor or accomplice.

220. Magistrate to return depositions, statement and undertakings of witnesses, to the court.

The subject embraced in this chapter has engaged the most anxious attention of the Commissioners. The existing practice in relation to it admits of great and essential improvement, not merely in its details, but in is principles. By that practice, the magistrate is required, upon the defendant being brought before him, to summon the witnesses on whose oath the warrant is founded, and to proceed to examine them in the presence of the defendant. He is then to take the examination of the defendant, after cautioning him that he is not bound to answer; and after the examination, he is to take the testimony of any witnesses whom the defendant may produce. Upon the completion of this proceeding, he is to decide whether there is sufficient cause to hold the defendant to answer, and to commit or discharge accordingly. 2 R. S. 793795, Sec. 2-22.

An examination of the statutory provisions upon this subject, now in force, and a close observation of the course of practice under them, have convinced the commissioners of the necessity of some safeguards, which the law has not yet provided, being thrown around the rights of the defendant. While they are aware that many undue means have been afforded by the technicalities of the law, and in some instances by the laxness with which it has been administered,-evils for which they have endeavored to provide an adequate remedy,-they have resolved in this, as in other respects, to recommend the adoption of such proivsions as will protect the substantial rights

of a party accused of crime. It is one of the proudest attributes of the system under which we live, and of the constitution by which the blessings of life, liberty and property are guaranteed, that no matter what may be the enormity of his crime, no matter how great the intensity of public excitement against him, no matter how abject or degraded he may be, the life and liberty of the citizen are protected until they are forfeited by due process of law. It is no less true, that punishment derives its moral force, not so much from its severity, as from the certainty that it has been inflicted in compliance with the spirit of those institutions, and after every opportunity has been afforded to the accused, of defending himself by those means which the law has given for the protection of the innocent. The theory of our law is, that every man is presumed innocent until the contrary is established; and any portion of our system which assumes a contrary principle, demands prompt and immediate correction.

To no portion of the subjects referred to in this report, do these remarks apply with greater force, than to the initiatory proceedings for the ascertainment of the defendant's guilt. In the proceedings after his commitment, and upon his trial, his instincts teach him to seek the aid of those whose profession and experience may ensure the protection of his rights. But in the early stages of the accusation,—when he is hurried before a magistrate upon a charge of which he may be innocent, and of which, even if it be otherwise, the law has not yet adjudged him guilty, the first dictate of duty seems to be, to inform him of his rights, and to afford him. every opportunity to throw around himself the protection of the law. And yet, according to the existing system of practice, upon the idle fiction that every man is presumed to know the law, he is supposed to be informed of the first right securred to him by the constitution, that of appearing and defending himself by counsel. If he happen to be ignorant of this, the examination of the case proceeds, and testimony is taken against him, which may be illegal in its character, or which, without the substantial opportunity for a cross examination, may in some contingencies be used against him on his trial.

Against this prejudice the Commissioners propose to guard, by requiring the magistrate to inform the defendant of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had, to allow the de

fendant a reasonable time to procure counsel, and to send for such counsel in the city or town, as the defendant may name. Sec. 187, 188.

By the existing practice, when the defendant is brought before a magistrate, no time is limited, within which the case must be examined, preliminarily to the discharge or commitment of the defendant. This state of things leads to an abuse which the Commissioners have reason to believe has not unfrequently existed, namely, the arrest of a person upon testimony which would be insufficient to hold him, and his detention until evidence can be hunted up, upon which the magistrate might be warranted in committing him. If the Commissioners had had power to collect the facts, in support of this and other statements which they will have occasion to submit, they do not doubt that they would have been able to lay before the legislature, the most conclusive evidence of the existence of this abuse. Nor has it stopped here. Cases have existed, where the defendant, after a long detention, in what is termed the discretion of the magistrate, has been discharged, for want of proof sufficient to hold him; or when he could be no longer held, has been committed as a vagrant, as the only device by which time could be obtained for procuring testimony against him.

The Commisssoners do not, in these remarks, intend to undervalue the importance of great vigilance, on the part of public officers, in the detection and prosecution of crime; but they are entirely at a loss to perceive the justice of a system, by the practical operation of which, the liberty of a citizen, be he who he may, is to be placed entirely at the discretion of the magistrate. When a man is charged with an offence, no one will deny that he should not be deprived of his liberty, for a moment, unless upon such proof as furnishes reasonable cause to believe him guilty of the crime. Or if he may be arrested without such proof, it will hardly be contended that he should, for any purpose, be unlimitedly held in custody as discretion or caprice may dictate. Yet such is the operation of the present system. "As soon as may be," is the uncertain limit now fixed for the examination of the defendant:-a limit too indefinite, where the liberty of a citizen is involved, unless he is to be presumed guilty of an offence, upon the charge of which there is not evidence sufficient even to warrant his examination.

To obviate this injustice, the Commissioners propose that the examination must be completed at one sitting, unless the magistrate, for good cause shown by affidavit, adjourn it; the adjournment to be for not more than two days at each time, nor more than six days in all, unless by consent or on motion of the defendant. Sec. 190.

§ 187. When the defendant is brought before a magistrate upon an arrest either with or without warrant on a charge of having committed a public offence, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had.

188. He must also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the town or city, as the defendant may name. The officer must without delay and with

out fee, perform that duty.

§ 189. The magistrate must, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, after waiting a reasonable time therefor, proceed to examine the case.

§ 199. The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, adjourn it. The adjournment cannot be for more than two days at each time, nor more than six