gamblers, beggars, who are found violating the laws in the public thoroughfares.1

SECTION 34. The trial of the accused.

34a. Trial must be speedy.

356. Trial must be public.

84c. Accused entitled to counsel.

34d. Indictment by grand jury or by information.

34e. The plea of defendant.

34f. Trial by jury - Legal jeopardy.

§ 34. The trial of the accused. "No man shall be deprived of his life, liberty, or property except by the judgment of his peers or the law of the land." One who has committed a crime can be punished by man, not because he has violated the law of God, or the law of nature (if the two systems of law can be considered distinguishable), but because he has broken the law of man. In order that a man may be lawfully deprived of his life or liberty, he must be convicted of a breach of the human laws, and the conviction must be secured according to the provisions of these laws. If, according to the existing rules of the substantial and remedial law, one charged with a crime is not guilty or can not be convicted of it, he stands free before the law notwithstanding he has violated the God-given rights of others; and to take away his life or his liberty would be as much an infringement of his constitutional rights, as would a like deprivation be of a man who leads a strictly moral life, and scrupulously respects the natural rights of his fellow-men. A man's life, liberty, or property can not be taken away, except by due process of law. It is not proposed to explain all the rules of law governing the conduct and management of criminal prosecutions, since the

1 See Mitchell v. Lemon, 34 Md. 176, in which it was held that one may be arrested without a warrant, who was found violating the rules laid down by the city board of health for the preservation of the public health.

object of the present outline of the subject is simply to make a statement of the leading constitutional protections to personal liberty. The trial must be conducted in complete accordance with the rules of practice and the law of evidence, in order that a conviction may lawfully support an imprisonment for crime. But these rules of practice and pleading may be changed by the legislature to any extent, provided the constitutional limitations to be presently mentioned are not violated.

As already explained, a temporary confinement of one accused of crime is permissible, in fact necessary, for the purpose of insuring the presence of the alleged criminal at the trial; for in cases of felony no one can be tried and convicted in his absence, even though his absence is voluntary. But this confinement is only temporary, and can justifiably continue only for as long a time as is reasonably required by the prosecuting attorney to prepare the case of the State for trial.

34a. The trial must be speedy. It is, therefore, one of the constitutional limitations for the protection of personal liberty, that the trial be speedy. A man accused of a crime is entitled to a speedy trial, not merely because he is under a personal restraint, but also because his reputation is under a cloud, as long as the criminal accusation remains undisposed of. As a general proposition, the accused is entitled to a trial at the next term of the court after the commission of the crime, or after the accused has been apprehended; and if it should prove to be necessary for any cause, except the

1 Winchell v. State, 7 Cow. 525; Maurer v. People, 43 N. Y. 1; Jacobs v. Cone, 5 Serg. & R. 335; State v. Alman, 64 N. C. 364; Andrews v. State, 2 Sneed, 550; Jackson v. Commonwealth, 19 Gratt. 656. In capital cases, the record must show affirmatively that the accused was present throughout the trial, and particularly when the verdict is brought in and sentence pronounced. Dougherty v. Commonwealth, 69 Pa. St. 286. But it seems that the accused need not always be personally present at the trial for misdemeanors. Cooley Const. Lim. 390.

fault of the accused, to adjourn the court without bringing the prisoner to trial, in ordinary cases he would then be entitled to bail, although originally he was not. This is, however, largely a matter of discretion for the court.1 When the prisoner is ready for trial, the solicitor for the State is not entitled to delay, unless he satisfies the court that he has exercised due diligence, yet for some cause, the shortness of time, or the absence of material witnesses, etc., he is not prepared to proceed to trial. The continuance of cases must necessarily be largely left to the discretion and good faith of the prosecuting attorney, although it is the duty of the court to be watchful in behalf of the prisoners, who may through the carelessness or malice of the attorney for the State be kept in prison, indefinitely, awaiting a trial. The discretionary character of the duties of prosecuting attorneys furnishes them with powerful means of oppression, 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.'

§ 346. 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

1 See Ex parte Caplis, 58 Miss. 358.

2 Cooley Const. Lim. 311, 312.

3 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.

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 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

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presence is requested by the parties to the cause. believed to be the law prevailing in Germany. vision 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 preservation 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. The 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.

§ 34c. Accused entitled to counsel. The State, in all criminal prosecutions, is represented by a solicitor, learned

1 The writer remembers how on one occasion, while he was a student of the law at the University of Goettingen, he was bidden to leave the criminal court, because the case about to be tried was one involving deep moral turpitude.