or elsewhere. It is probably for these reasons, that Lord Hale has laid down a different rule, viz. that because it may be unreasonable to take these examinations presently, or possibly it may take longer time, the prisoner may be continued in the custody of the officer, or may be detained in the justice's house, or committed to some near safe place of custody, till the examinations can be taken.* And in another place he says, that the prisoner may be committed, by word of mouth, to a constable, to detain him in custody till the next day, if upon a reasonable occasion the justice cannot, at the return of the warrant, take the examination.† If, when the party is brought before the justice, he finds that it is necessary to inquire further into the case before he discharges or commits him, he may from time to time verbally remand him into custody, and a written warrant or authority is not necessary; but it is usual, when the party is detained for examination till another day, or for several days, to make out a written warrant for that purpose. This course is convenient, and generally liable to no objection, when the examination takes place in the town or vicinity where the county gaol is situated. But when the gaol is at an inconvenient distance from the place of examination, the prisoner may be ordered into and kept in the custody of the officer, in any other safe and convenient place. The written warrant, in cases of commitment for further examination, need not state the crime of which the party is accused; for it is observed, that it may not always be safe or proper to let the peace officer know the crime for which he is detained. And after the magistrate has determined on committing the party, he may verbally authorize the officer to detain him till he can make out the mittimus.|| By the late statute of Massachusetts, of 1821, chap. 98, a very convenient and proper provision is made, by which justices of the peace are authorized to take the recognisance of a party * 2 Hale, 120. 1 Chit. C. L. 73. Part 2. † 1 Hale, 585.J See the form of commitment for further examination, post, § Bac. Abr. tit. Trespas, D. 3. || 1 Chit. C. L. 73; 7 East, 533. for his appearance before such justices for further examination. This statute enacts, that "any justice of the peace, before whom any person is brought on a complaint for any crime, misdemeanor, or other offence, may take the recognisance of such person, with surety or sureties, in a reasonable sum, for his appearance before said justice, for further examination at a future time, not exceeding ten days;" and by the second section of the statute it is further enacted, "that if the person thus recognised shall not appear before said justice, at the time appointed for further examination, as set forth in the recognisance, it shall be the duty of said justice, to note his default upon the record, and certify the same recognisance with the record of the default in the performance of the condition thereof, to the Court of Common Pleas, that a scire facias may issue thereon, or an action of debt be brought for the recovery of the penalty." It will be the duty of justices of the peace in carrying this statute into effect, to observe all the directions and cautions, which are hereafter recommended, as to taking recognisances for the appearance of parties at court, both as it respects the amount of the penalty of the recognisance taken for the appearance of the party for further examination, and as to the sufficiency of the sureties in point of property; otherwise this statute may furnish a very convenient mode of escape or avoidance to the criminal. The magistrate, having authority to examine into the nature and circumstances of a criminal charge against an offender, has also a power as incident to his authority, to bring before him all persons who appear from the oath of the complainant, or from the magistrate's own knowledge, to be material witnesses for the prosecution; and for this purpose may issue his summons, directed to a proper officer, requiring him to cause such witnesses to come before him, and give evidence; or he may (which is the usual course) insert an order to summon the witnesses, naming each of them, at the conclusion of the warrant against the party to be arrested.* And upon the reasonable request of the defendant, the magistrate has a similar power to bring before him any witnesses, whose testimony may be material on his behalf.† Mass. Laws, 1783, ch. 51. * See form, post, Part 2d. 66 But by the statute of Massachusetts, 1791, chap. 53, sec. 6, no justice of the peace shall hereafter have power to issue summonses for witnesses to appear at any court, or before any justice of the peace, except on complaint brought before himself, to give evidence on behalf of the commonwealth upon any criminal suit, unless it be by the request of the attorney general, or person acting as state's attorney in the county where such justice dwells; and no witness, summoned without such request, shall be allowed any pay for his travel and attendance. And when any justice of the peace shall issue any summons at the request of the party prosecuted, it shall be so expressed in the summons; and the witness shall therein be required to appear and give evidence, upon condition such person prosecuted, pays him his legal fees, but not otherwise." It is the practice in the Supreme Court of Massachusetts for the counsel of prisoners, charged with a capital offence, to move the court for a summons to issue for the prisoner's witnesses, which is always granted, and ordered to be served at the expense of the state; and the legal fees of such witnesses are also paid by the government. When the accused party, and the witnesses to be examined, are duly brought before the magistrate, he is to proceed to examine them, and decide thereon, whether the party shall be discharged, or held for further examination, or committed, or bailed. This constitutes one of the most important duties of the magistrate, and is a power which may be abused and prostituted to base and unlawful purposes, or exercised for the necessary protection of the innocent, and for the great purposes of public justice. This duty ought therefore to be well explained and understood. The conviction and punishment of the guilty, very often depend upon the manner in which this duty is discharged by the magistrate. In some instances the confession of the party has been permitted to be erroneously obtained, or extorted; in others, compromises and compounding of the offence, and the suppression of the prosecution have been permitted or connived at; and many times the accused have been committed or held to bail, when it might have appeared from a thorough investigation, that there was no probable cause for the accusation. And it is apprehended that the practice, as to the mode of examining the witnesses, and of the defendant, is not only not uniform, but in many instances erroneous, or not warranted by law, and the just rights of the parties. In England the examination of the accuser, witnesses, and prisoner, in cases of felony and manslaughter, is principally regulated by the statutes of 1 & 2, and 2 & 3 Ph. & Mary. The provisions of these statutes have not been adopted in practice in this state. In cases of misdemeanor, they have no application; that is, examinations of witnesses, taken in writing as these statutes direct, cannot in any case, without the consent of the defendant, be given in evidence on an indictment for a misdemeanor.* One of the objects in passing these statutes was to enable the court and jury, before whom the prisoner was tried, to see whether the witnesses at the trial are consistent with the account given by them before the committing magistrate. And for that purpose they enact, that the examination of the prisoner, and information of the witnesses, shall be put in writing by the magistrate, and certified and sent up to the court before whom the prisoner is to be tried. It was necessary for a justice, when proceeding under the authority of these statutes, to attend with the most scrupulous exactness to their directions; for if their examinations were attended with the least informality, they could not be admitted in evidence, (as they might have been if taken correctly,) and received no additional sanction from the statutes under which they were taken. As it respects the prisoner, the operation of these statutes depends entirely upon his will and consent; for, although they authorize an examination, they are not compulsory on the prisoner; and, as it will presently appear, there is no mode of extorting a confession, or otherwise obtaining any statement from him, which is not perfectly voluntary. Indeed this examination has been considered rather as a privilege in favor of the party accused, afforded by law for the benefit of an inno 1 Chit. C. L. and cases there cited. † 2 Leach, 558. 1 Leach, 501, 502; 2 Leach, 561; 1 Chit. C. L. 77. cent man, who may by this opportunity have it in his power to clear himself from suspicion.* The complainant and his witnesses must be ready to confront the prisoner, on the examination; in whose presence the evidence must always be given. By the declaration of rights in the constitution of Massachusetts, "every subject shall have a right to meet the witnesses against him face to face."+ In those states where it may be the practice to take the examination of the witnesses and prisoner in writing, it may be advisable for the magistrate to hear their narrative, before he reduces it to writing; by which means he will be able to ascertain all the circumstances of the case, and perhaps to discover, by the manner of the parties, whether they are speaking truth, or combining in the assertion of falsehood. The complainant and his witnesses are then to be sworn; if Christians, either on the Evangelists, or by holding up the right hand, according to the custom and usage of the state in which the examination is had. If they are Jews, they may, if they require it, be sworn upon the Old Testament; and if of any other faith or religion, according to the ceremonies which it prescribes. An oath is not required of Quakers, and others, who decline taking an oath on account of their religious scruples. To these an affirmation is administered, in which the ceremony of holding up the hand is dispensed with. If the party is to be sworn upon the Evangelists, he is required to kiss the book, usually the New Testament, which supposes him to be a Christian. When the testimony of those who are not Christians is required, the law allows and sanctions those forms and ceremonies to be used, which are peculiar to their religion, and consequently most binding upon their consciences. Therefore Mahometans are sworn on the Alcoran, and all others according to the ceremony of their religion. But if they consent to be sworn according to the usage and ceremony in our courts, the oath is equally binding upon them, as if sworn according to the cere * 1 Chit. C. L. 84. † 12th article. Statute 1810, chap. 128; ante, p. 12. || Phil. Evid. 19; 1 Atk. 21; where the to a Gentoo is stated; ante, p. 13. § Statute 1824, chap. 9. ceremony of administering an oath |