far be it from any advocate of law reform to urge a recurrence to it; whether it be the Bavarian plan, now or lately in force, of giving only bread and water to an accused who refuses to make a statement, or the more downright English methods of rack and thumb-screw, fine and imprisonment, discarded two centuries ago.

But between forbidding physical or moral compulsion, and inviting, or even urging a frank disclosure, the difference is wide. We have construed a prohibition to compel as a prohibition to request.

We assume a burden of proof unknown except where the English tongue is spoken; we demand an unanimity in the verdict equally unknown elsewhere; we often permit the jury-a thing unheard of in any other land-to go to their homes and mingle with the friends of the prisoner, while they are deliberating upon his guilt,—and yet we reject the aid of the simple expedient which would occur first of all to any child, of asking the accused what he has to say about the charge against him.

They are still jealous of their government in Great Britain. It is still a royal government, supported by an idle aristocracy; two of the estates of the realm ruling by no other right than that of birth. In prosecutions for political offenses, the interests of these two estates are directly involved, and to one of them the bench itself, in its highest places, belongs.

It is not strange, therefore, that, while not surrendering the procedure of preliminary examinations, close upon the arrest, they have been sedulous to require the magistrate to warn the prisoner that he need not answer, and that, if he does, his words may be used against him.

But with us, government has no other office or end than to order and protect the peace of society. The prisoner is tried before judges, and by prosecuting officers, who were,

directly or indirectly, of his own choosing. The jury is made up of his neighbors; the law is one, directly or indirectly, again, of his own making. He has been, probably, educated at the expense of the state, for the very purpose of giving him the intelligence necessary to govern his conduct as becomes a good citizen. No private prosecutor, as in most countries, is pushing the case against him, for revenge or restitution. He has to contend only with the public, and the public have no interest except to discover the truth, whichever way it lies.

If, then, we would make the punishment of crime, as certain here as it is in Europe-I might almost say, as it is in Mexico or China-let us abandon our attempt to fight it without the use of the ordinary weapons that lie at hand; without asking the man who, of all the world, knows best what the facts are, to tell us about them; and without asking him in such a way as to facilitate, rather than to prevent, an honest statement. Let him be brought before the examining magistrate, as he is abroad, before he has time to fabricate an explanation, before he has seen counsel, when the proofs of guilt are fresh. Let him be confronted with these proofs, and asked how he can meet them. If he refuse to say anything, let it be so recorded. If he does speak, let all be written down in his presence, read to him, and signed by him, if he will. And let all be done, not as a matter of favor from him, but of right to the state. Let there be no caution that he need not answer, and no warning that he may be making evidence against himself.

Do you say that an innocent man, under such an examination, may become confused, and answer confusedly or incorrectly? He will certainly be less liable to do so than if questioned unofficially by a wheedling detective or incredulous policeman, and such questioning is as sure to come as it is to be but half remembered.

A fair report, made at the time, in writing, by an impartial magistrate, proves often the best evidence for the accused, and results, in his immediate discharge.

To advocate examination of the accused before the committing magistrate is, of course, a very different thing from advocating his examination by the court on his trial to the jury. Both of these examinations form a part of the general continental system, but it is that from the bench which becomes often and justly a matter of reproach.

In France, for instance, the preliminary examination is conducted by the prosecuting officer, in order to determine whether there is or is not ground to prosecute; but when the accused is once informed against and put on trial, the judge is apt to presume his guilt, and exercise all his ingenuity to twist some admission out of him, or perhaps to distort what is said, so that the jury may receive a false impression from it.

The embarrassment of the defendant when actually on trial, and confronting a charge of crime laid against him by the authority of the state, is naturally and necessarily greater than when, at an earlier stage of the proceedings, the state is simply inquiring whether it ought to be put to the expense of a prosecution. The very nearness of the final decision, by a verdict which may convict and may set free, must intensify the excitement of his feelings.

If the prosecutor is allowed to question him now, the interrogation is sure to be unfriendly; it may be, it is even likely to be, if conducted by the judge. Under such circumstances the contest between the questioner and the questioned is too unequal, and innocence may well seem guilt. A learned member of this Association, in his elementary work on Constitutional Law,* has not hesitated to say that the rule "that no person shall be compelled to be a witness * Pomeroy's Const. Law, p. 155.

against himself, can only be supported by that intense reverence for the past which is so difficult to be overcome," and that "there can be no doubt that the states will gradually abandon this provision, and reject it from their constitutions.”

I doubt if the prediction comes true; I doubt if it would be well that it should. There may yet come a revolution in social forces, which would make even the use of torture tolerated in courts, were there no fundamental law to forbid. The highest refinement in civilization has, in former ages, not been found incompatible with the highest refinement in cruelty; and the nature of man changes little, beneath the surface, from generation to generation. Lynch-law, within our own borders and among our own people, has been no stranger to the arts of interrogation, aided even by torture, at the foot of the gallows.

Let us keep our constitutional guaranties as they are, but let us read them and apply them like reasonable men. It is enough to reject the use of force, without also refusing even to ask the defendant to speak for himself. It is enough passively to submit to his refusal to answer, without also forbidding judge and jury to draw from it the natural conclusion.

We heard this morning the playful humor with which a distinguished jurist of long service, both at the bar and on the bench, professed his pleasure at listening here so often to young men eager to proclaim the new light which they saw breaking upon the mountain-tops of jurisprudence, and which had not yet been revealed to the dimmer vision of their elder brethren. I can no longer claim the privilege of youth, but let me not be accused of bringing before you any novel speculations, any fancied discoveries of my own. I stand here the advocate of no new, no untried method of procedure. It is our present method which is the innova

tion on the practice of all lands and all times. It is against experience, against nature; I believe, against reason.

It is no mean distinction to New Jersey that it is the only American state that has steadfastly adhered to the ancient plan. It shows the same spirit of independent judgment and sound conservatism which, under the lead of Patterson, made her influence so great and so healthful in the Constitutional Convention of 1787. And more, perhaps, than anything else in her system of criminal administration, it has made "Jersey justice" proverbial along the Atlantic coast, to signify swift and certain retribution to wrong-doers, at the hands of the law.

America has tried many experiments in the art of government. She has tried none more hazardous than that which has been the subject of our consideration to-night. Is it not true that there are parts of the United States where more criminals are yearly put to death by lynch-law, or by the hand of some private avenger of blood, than by judicial warrant? And is it not true that, in those communities, public sentiment justifies such deeds of violence, because the courts afford too uncertain a remedy; not because they are corrupt, but because they are inefficient?

If we would make American justice as sure as American liberty; if we would banish pleas of temporary insanity from our court-rooms, and mob-violence from our frontiers, let us begin by going back-back to the ancient ways from which a false humanitarianism has led us off. Leaving our constitutions as they are, let us interpret them in their true spirit, and give the state, in its judicial contests with those whom it charges with crime, once more an equal chance.