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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 without 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.

§ 190. 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

days in all, unless by consent or on motion of the defendant.

§ 191. If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody, upon the deposite of money as provided in this code, as security for his appearance at the time to which the examination is adjourned.

If the examination be for any cause adjourned, the magistrate has now no power to admit the defendant to bail Some power should exist, to relieve the defendant from actual custody, during the progress of the examination. The Commissioners propose that this may be done upon the deposite of a sum to be fixed by the magistrate. Bail could not well be taken, according to the system prescribed on that subject, which requires a full opportunity for examination into the sufficiency of the proposed bail; a proceeding which would occupy nearly all the time fixed by section 190, for the examination of the charge.

192. The commitment for examination is by an endorsement signed by the magistrate, on the warrant of arrest, to the following effect: "The within named A. B., having been brought before me under this warrant, is committed for examination, to the sheriff of the county of or, in the city and county of NewYork, "to the keeper of the city prison of the city ef New-York."

§ 193. At the examination, the magistrate must, in the first place, read to the defendant the depositions of the witnesses examined on the taking of the information, and if the defendant request it, must summon the

witnesses so examined, if they be in the county. He must also issue subpoenas for additional witnesses rcquired by the prosecutor or the defendant.

More full and explicit than the existing provision, 2 R. S, 3d. ed., 794, sec. 14, but not variant in principle.

§ 194. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.

Same as provided in 2 R. S., 3d. ed., 794, sec. 15.

§ 195. When the examination of the witnesses on the part of the people is closed, the magistrate must distinctly inform the defendant, that it is his right to make a statement in relation to the charge against him, (stating to him the nature thereof;) that the statement is designed to enable him, if he see fit, to answer the charge and to explain the facts alleged against him, that he is at liberty to waive making a statement, and that his waiver cannot be used against him on the trial.

§ 196. If the defendant waive his right to make a statement, the magistrate must make a note thereof, immediately following the depositions of the witnesses against the defendant; but the fact of his waiver cannot be used against the defendant on the trial.

§ 197. If the defendant choose to make a statement, the magistrate must proceed to take it in writing, without oath, and must put to the defendant the following questions only:

What is your name and age ?

Where were you born?

Where do you reside, and how long have you resided there?

What is your business or profession?

Give any explanation you may think proper, of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation.

§ 198. The answer of the defendant to each of the questions must be distinctly read to him, as it is taken down. He may thereupon correct or add to his answer, and it must be corrected until it is made conformable to what he declares is the truth.

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According to the present practice, after the examination of the witnesses for the people is closed before the magistrate, the next stage of the proceedings is what is called the examination" of the defendant. This examination must be taken in all cases of felony, and in cases of misdemeanor, if the defendant require it, or the magistrate think it necessary. Before taking it, the defendant is to be informed of the charge against him, and is to be allowed a reasonable time to send for counsel, who may examine and cross-examine the witnesses. This, however, it is to be observed, is not to be done until the witnesses on the part of the prosecution are examined. 2 R. S., 3d ed. 794, sec. 14, 15. At the commencement of the examination, the defendant is to be informed by the magistrate that he is at liberty to refuse to answer any question which may be put to him; but no restriction is placed upon the magistrate, in regard to the questions which may be put. The answers of the defendant are to be reduced to writing and read to him, with the right on his part to correct them; and when made conformable to what he declares to be the truth, are to be authenticated by the magistrate.