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other states. These reasons never existed in New Hampshire. The decision is, therefore, authority for the proposition that the Constitution gave no party the right to a trial by jury where that would in fact have been impracticable. This decision has been repeatedly affirmed and, as many think, extended. In Wooster vs. Plymouth, a highway town case, the court followed the decision in Dunmore's Appeal, 52 Pa. St. 374, and held that neither party in a suit against a municipal corporation had a right, under the Constitution, to trial by jury. These decisions narrowed the pre-existing practice in a marked degree. Besides this, by agreement of the parties or counsel, a large share of the causes, where the parties are still entitled to a jury trial, are tried in the same way. These trials, as a rule, are had within ear-shot of the parties and their witnesses. They are speedy. A single judge is much more liberal in the admission of testimony than if the trial were by jury. They are less expensive. Many causes are tried at the entry term, which is practically open for trials, at the convenience of court and counsel, until a short time before the next term. The causes not disposed of at the entry term go upon the continued docket. In the opinion of one of the judges, who has given special attention to the matter, fully two-thirds of the entire calendar has been taken from the jury by the constitutional amendment. In the year 1882– 83, there were but seventy-five jury trials in the entire state. In my own, the central county, we have not averaged more than four or five jury trials a year for several years. The amount paid referees in 1879 was $15,674.40; in 1880, $16,711.57; in 1881, $17,191.19; and in 1882, $11,505.78. The salaries of the judges were increased in 1881; since then they have done a large share of the work formerly done by referees, and the amount paid the latter has necessarily been diminished.

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Physical causes, as suggested by Mr. Potter, undoubtedly had their effect both upon the people and the profession. Manufactures have utilized every stream, and railroads have gridironed the state. The people, and lawyers in particular, come and go at tick of wire or touch of bell. This has changed the old-time social character of the profession, as well as its methods. Oratory has passed away. Thorough preparation, and a statement, bristling with points like an auditor's report, has taken its place. What has been true with us may, from like causes, become so throughout the Union.

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PAPER

READ BY

SIMEON E. BALDWIN.

Preliminary Examinations in Criminal Proceedings.

There are but three of our states* in which the constitution does not declare that no person accused of crime shall be compelled to give evidence against himself; and a similar guaranty was grafted into the Constitution of the United States, at the instance of the first Congress. I ask you this evening to consider the reason of this rule, and the true limits of its application.

Our fathers, in the era of our early constitution-making, were not acting the part of political theorists. They undertook to deal with practical questions in a practical way. It was their business to gather in the hard-won fruits of Revolution. They had just struck off the hold of a government which had been always hard, and often hostile-a government administered in the interest of the great and the rich; a government which was suspicious, jealous, overpowering, when it wished to overpower.

Men were still living in whose boyhood torture had been applied on British soil, to wring confessions from unwilling lips; and the common law gave no sufficient warrant against

its future use, should public safety ever be deemed to de

mand it, by those in power.

Georgia, Iowa, and New Jersey. South Carolina did not introduce the provision till 1868, nor Michigan until 1850.

Britton, indeed, had said that felons must be brought into court without irons; "so that they may not be deprived of reason by pain, nor be constrained to answer by force, but of their own free will;" but Bracton puts this privilege as granted, so that they might not appear compelled to offer to undergo the trial by ordeal.†

Coke gravely tells us in his Institutes that "there is no one opinion in our books or judiciall records (that we have seen and remember) for the maintenance of torture or torments," and that Magna Charta forbids it; yet a few years before (1619) he had signed, as privy councilor, a warrant to put one charged with treason to the rack;§ and in his speech as attorney general (in 1600) in the prosecution of the earls of Essex and Southampton, he attributes to the queen "overmuch clemency to some" in the inquiry into the matter in hand, since, "out of her princely mercy, no man was racked, tortured, or pressed to speak anything farther than of their own accord and willing minds, for discharge of their consciences they uttered." || So in 1613, in the Countess of Shrewsbury's case, Coke, as chief justice, mentioned it as a special privilege of the peerage in legal proceedings that, "for the honor and reverence which the law gives to nobility, their bodies are not subject to torture in causa criminis laesae majestatis."

It took, in truth, Cromwell and the Civil War to root out torture from the English courts; nor was it given up in Scotland until the succeeding century.

The criminal code of England was a bloody and heartless one, when the Pilgrims sailed away for freer shores.

* Cap. v. 36.

Its

† Bracton, lib. iii. 137, “Ne videat coact' ad aliquam purgationem sus

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