But a far more important requirement is, that the proceeding to establish guilt shall not be inquisitorial. A peculiar excellence of the common-law system of trial over that which has prevailed in other civilized countries consists in the fact that the accused is never compelled to give evidence against himself. Much as there was in that system that was heartless and cruel, it was not subject to the reproach that it gave judgment upon extorted confessions, than which, as all experience shows, nothing can be more dangerous or more utterly untrustworthy.1

It is the law in some of the States, that, when a person is charged with crime, and is brought before an examining magistrate, and the witnesses in support of the charge have been heard, the prisoner may also make a statement concerning the transaction charged against him, and that this may be used against him on the trial if it is believed to have a tendency to establish guilt. But the prisoner is to be first cautioned that he is under no obligation to answer any question put to him unless he chooses, and whatever he says and does must be entirely voluntary. He is also to be allowed the presence and advice of counsel; and if that privilege is denied him, it may be sufficient reason for discrediting any statements that he may have made. When, however, the statute has been complied with, and no species of coercion appears to have been employed, the statement the prisoner may have made is evidence which may be used against him on his trial, and is entitled to great weight. And in any other case,

1 See Lieber's paper on Inquisitorial Trials, Appendix to Civil Liberty and SelfGovernment. See also article on Criminal Procedure in Scotland and England, Edinb. Rev., Oct. 1858. Judge Foster relates, from Whitelocke, that the Bishop of London, having said to Felton, who had assassinated the Duke of Buckingham, "It you will not confess, you must go to the rack," the man replied, "If it must be so, I know not whom I may accuse, in the extremity of my torture, Bishop Laud, perhaps, or any lord of this board." "Sound sense," adds Foster, "in the mouth of an enthusiast and ruffian." Laud, having proposed the rack, the matter was shortly debated at the board, and it ended in a reference to the judges, who unanimously resolved that the rack could not be legally used. De Lolme on Constitution of England (ed. of 1807), p. 181, note.

2 See Rev. Stat. of New York, part 4, ch. 2, tit. 2, § 14-16.

3 Rex v. Ellis, Ry. & Mood. 432. There is no absolute right to the presence of counsel, or to publicity in these preliminary examinations, unless given by statute. Cox v. Coleridge, 1 B. & C. 37.

It should not, however, be taken on oath, and if it is, that will be sufficient reason for rejecting it. Rex v. Smith, 1 Stark. 242; Rex v. Webb, 4 C. & P. 564;

except treason, the confession of the accused may be received in evidence against him, provided no circumstance accompanies the making of it which should detract from its weight in producing conviction on the minds of the hearer.

But to make it admissible in any case, it ought to appear that it was made voluntarily, and that no motives of hope or fear were employed to induce the accused to make it. The evidence ought to be clear and satisfactory that the prisoner was neither threatened nor cajoled into confessing what very possibly was untrue. Under the excitement of a charge of crime, coolness and selfpossession are to be looked for in very few persons; and however strongly we may reason with ourselves that no one will confess a heinous offence of which he is not guilty, the records of criminal courts bear abundant testimony to the contrary. If confessions could prove a crime beyond doubt, no act which was ever punished criminally would be better established than witchcraft;1 and the judicial murders which have been based on such confessions ought to be a warning against the ready admission of confessions in proof of guilt in any case. As "Mr. Justice Parke several times observed" while holding one of his circuits, "too great weight ought not be attached to evidence of what a party has been supposed to have said, as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say." And when the admission is full and positive, it perhaps quite as often happens that it has been made under the influence of the terrible fear caused by the charge, and in the hope that confession may ward

Rex v. Lewis, 6 C. & P. 161; Rex v. Rivers, 7 C. & P. 177; Regina v. Pikesley, 9 C. & P. 124. "The view of the English judges, that an oath, even where a party is informed he need answer no questions unless he pleases, would, with most persons, overcome that caution, is, I think, founded on good reason and experience. I think there is no country, certainly there is none from which any of our legal notions are borrowed, where a prisoner is ever examined on oath." People v. Thomas, 9 Mich. 318, per Campbell, J.

1 See Mary Smith's case, 2 Howell's State Trials, 1049; Case of Essex witches, 4 Ibid. 817; Case of Suffolk witches, 6 Ibid. 647; Case of Devon witches, 8 Ibid. 1017.

2 Note to Earle v. Picken, 5 C. & P. 542. And see 1 Greenl. Ev. § 214, and

note.

off some of the consequences which would follow a conviction if guilt was persistently denied.

A confession alone ought not to be sufficient evidence of the corpus delicti. There should be other proof that a crime has been committed, and the confession should only be allowed for the purpose of connecting the defendant with the offence. Any solicitations employed to obtain it by working upon the party's hopes or fears will be sufficient to preclude its being received; and even saying to the prisoner that it will be better for him to confess has been decided to be such holding out of inducements to confession, especially when it is said by the person having him in custody, as should exclude the evidence.2 If, however, counter

1

1 Stringfellow v. State, 26 Miss. 157. In this case, it was held, that a confession of murder was not sufficient to warrant conviction, unless the death of the person supposed to be murdered was shown by other evidence. So, in People v. Hennessey, 15 Wend. 147, it was held, that a confession by a clerk, of embezzlement, would not warrant a conviction, where that constitutes the sole evidence that an embezzlement had been committed. See also State v. Guild, 5 Halst. 163; Long's case, 1 Hayw. 524; People v. Lambert, 5 Mich. 349. So in People v. Porter, 2 Park. Cr. R. 14, Walworth, Circuit Judge, held the admission, by the defendant, that he had spoken certain blasphemous words, was not sufficient evidence of the uttering.

Rex v. Enoch, 5 C. & P. 539; State v. Bostick, 4 Harr. 563; Commonwealth v. Taylor, 5 Cush. 605; Morehead v. State, 9 Humph. 635; Regina v. Garner, 1 Den. C. C. 329. Mr. Phillips states the rule thus: "A promise of benefit or favor, or threat or intimation of disfavor, connected with the subject of the charge, held out by a person having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducements, either of hope or fear. The prosecutor or prosecutor's wife or attorney, or the prisoner's master or mistress, or a constable, or a person assisting him in the apprehension or custody, or a magistrate acting in the business, or other magistrate, has been respectively looked upon as having authority in the matter; and the same principle applies, if the inducement has been held out by a person without authority, in the presence of a person who has such authority, and with his sanction, either express or implied." 1 Phil. Ev. by Cowen, Hill, & Edwards, 544, and cases cited. But we think the better reason is in favor of excluding confessions, where inducements have been held out by any person, whether acting by authority or not. King v. Simpson, 1 Mood. C. C. R. 410; State v. Guild, 5 Halst. 163; Spears v. State, 2 Ohio, N. S. 583; Commonwealth v. Knapp, 9 Pick. 496; Rex v. Clewes, 4 C. & P. 221; Rex v. Kingston, Ibid. 387; Rex v. Dunn, Ibid. 543; Rex v. Walkley, 6 C. & P. 175; Rex v. Thomas, 6 C. & P. 353. There are not wanting many opposing authorities, which proceed upon the idea, that "a promise made by an indifferent person, who interfered officiously, without any kind of authority, and promised without the means of performance, can scarcely be deemed sufficient to produce any effect, even on the weakest mind, as an inducement to confess." 1 Greenl.

statements have been made before the confession which were likely to do away with the effect of the inducements, so that the accused cannot be supposed to have acted under their influence, the confession may be received in evidence. But the evidence ought to be very satisfactory on this point, before the court should presume that the prisoner's hope did not still cling to, or his fears dwell upon, the first inducements.2

Before prisoners were allowed the benefit of assistance from counsel on trial for high crimes, it was customary for them to make such statements as they saw fit concerning the charge against them, during the progress of the trial, or after the evidence of the prosecution had been put in; and upon these statements the prosecuting officer or the court would sometimes ask questions, which the accused might answer or not at his option. And although this practice has now become obsolete, yet if the accused in any case should assist in his own defence, and should claim the right of addressing the jury, it would be difficult to confine him to "the record," as a counsel may be confined in his Ev. § 223. No supposition could be more fallacious; and, in point of fact, a case can scarcely occur in which some one, from age, superior wisdom, or experience, or from his relations to the accused, or to the prosecutor, would not be likely to exercise more influence upon his mind than some of the persons who are regarded as "in authority," under the rule as stated by Mr. Phillips. Mr. Greenleaf thinks that while, as a rule of law, all confessions made to persons in authority should be rejected, "promises and threats by private persons, not being found so uniform in their operation, perhaps may, with more propriety, be treated as mixed questions of law and fact; the principle of law, that a confession must be voluntary, being strictly adhered to, and the question, whether the promises or threats of the private individuals who employed them were sufficient to overcome the mind of the prisoner, being left to the discretion of the judge, under all the circumstances of the case." 1 Greenl. Ev. § 223. This is a more reasonable rule than that which admits such confessions under all circumstances; but it is impossible for a judge to say whether inducements, in a particular case, have influenced the mind or not; if their nature was such that they were calculated to have that effect, it is safer, and more in accordance with the humane principles of criminal law, to presume, in favor of life and liberty, that the confessions were “forced from the mind by the flattery of hope, or by the torture of fear" (per Eyre, C. B., Warickshall's case, 1 Leach, C. C. 299), and exclude them altogether. The whole subject of evidence of confession is very fully considered in note to 2 Leading Criminal Cases, 182. And see People v. McMahon, 15 N. Y. 383.

1 State v. Guild, 5 Halst. 163; Commonwealth v. Harman, 4 Penn. State, 269; State v. Vaigneur, 5 Rich. 391; Rex v. Cooper, 5 C. & P. 535; Rex v. Howes, 6 C. & P. 404; Rex v. Richards, 5 C. & P. 318.

* State v. Roberts, 1 Dev. 259; Rex v. Cooper, 5 C. & P. 535.

argument. A disposition has been manifested of late to allow the accused to give evidence on his own behalf; and statutes to that effect are in existence in some of the States, which are believed to have had a salutary operation. These statutes, however, cannot be so construed as to authorize compulsory process against an accused to compel him to disclose more than he chooses; they do not so far change the old system as to establish an inquisitorial process for obtaining evidence; they confer a privilege, which the defendant may use at his option; if he does not choose to avail himself of it, unfavorable inferences are not to be drawn against him from that circumstance; and if he does testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give to a statement which he declines to make a full one such weight as, under the circumstances, they think it entitled to; otherwise the statute must have overruled and overthrown the constitutional maxim, that an accused party is not compelled to testify against himself, and the privilege becomes a snare and a danger.1

1 The statute of Michigan of 1861, p. 169, removed the common-law disabilities of parties to testify, and added: "Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify; but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross-examined on any such statement." It has been held that this statement should not be under oath. People v. Thomas, 9 Mich. 314. That its purpose was to give every person on trial for crime an opportunity to make full explanation to the jury, in respect to the circumstances given in evidence which are supposed to have a bearing against him. Annis v. People, 13 Mich. 511. That the statement is evidence in the case, to which the jury can attach such weight as they think it entitled to. Maher v. People, 10 Mich. 212. That the court has no right to instruct the jury that, when it conflicts with the testimony of an unimpeached witness, they must believe the latter in preference. Durant v. People, 13 Mich. 351. And that the prisoner, while on the stand, is entitled to the assistance of counsel in directing his attention to any branch of the charge, that he may make explanations concerning it if he desires. Annis v. People, 13 Mich. 511. The prisoner does not cease to be a defendant by becoming a witness, or forfeit rights by accepting a privilege. And in People v. Thomas, Campbell, J., in speaking of the right which the statute gives to cross-examine a defendant who has made his statement, says: " And while his constitutional right of declining to answer questions cannot be removed, yet a refusal by a party to answer any fair question, not going outside of what he has offered to explain, would have its proper weight with the jury." 9 Mich. 321.

The statement in the text, that the fact that the prisoner does not avail himself of his privilege to make a statement is not to be the subject of comment before the jury, is borne out by a decision on an analogous point under the statute above