Washington sentinel., 1854-07-11


would cease indeed to be a privilege. The jury
had, therefore, no right 20 presume the guilt of
these parties. Their refusal to answer is not
sufficient basis on which to found presump-
ton, nor is it a sufficient ground for the courts
to order them to enter into recognigances. i
did not come prepared to discuss this subject,
or to offer authorities, but the law appears to
me so plain that it scarcely needs to be argued
1t is perfectly evident to my mind that this
privilege is intended as protection to the citi
zen, and that if he refuse to answer, it cannot
be considered presumption of his guilt, or
used against him.
Judge Campbell-As understand the Grim
inal law of this State, it is based on the com
mon law of England.
Mr.. Waul-That is true. But by the COM
mon law, before person can be compelled to
enter into recognizances there must be some
reasonable ground of suspicion against him.
There must be something that can be brought
before the court-something that can be con-
strued into showing of intention to commit
violation of law. In England a party cannot
be forced to enter into recognizances without
a direct showing, by the officer of the crown of
a criminal intent The only exceptions are in
cases of breaches of the peace. This is true
in regard to all crimes, from treason down.
AS have said, have not yet had time to pro-
cure authorities on those points, but could do
SO in short time.
I Judge Campbell-I will give time to counsel
to examine authorities and prepare arguments.
Imust state that the privilege was claimed by
those parties. This was before the court.
The court understood what was meant by the
privilege claimed by the witnesses and by the
term "Cuban bonds" The same matter is
stated with great distinctness in the report of
the grand jury. do not understand that a
person cannot be compelled to enter into re-
cognizances except there is absolute proof
That is not the doctrine of the law. Black
stone says on this subject:
This preventive justice consists in obliging
those persons, whom there is probable ground
to suspect of future misbehavior, to stipulate
with, and to give full assurance to the public
that such offence as is apprehended shall not
happen, by finding pledges or security for keep
requisition of securities has been several times
mentioned before, as part of the penalty in
ficted upon such as have been guilty of GER
tain gross misdemeanors but then also it
must be understood rather as q caution against
a repetition of the offence, than any immediate
punishment. And, indeed, if we consider all
human pnnishments in large and extended
view, we shall find them all rather calculated
to prevent future crimes than to expiate the
past; since, as was observed in former
chapter, all punishnents inflicted by temporal
laws may be cassed under three heads-such
as tend to the amendment of the offender him
self, or to deprive him of any power to do flu.
ture mischief, or to deter others by his exam
pie all of which conduce to one and the same
end, of preventing future crimes whether that
can be effected by amendment, disability or ex-
ample. But the caution which we speak of at
present, is such as is intended merely for pre-
vention, without any crime actually committed
by the party, but arising only from probable
suspicion that some crime is intended or likely
to happen and consequently it is not meant
as any degree of punishment, unless, perhaps.
for mans imprudence in giving just ground
of apprehension"
Mr.. Waul-Of that law was ignorant But
when it says probable cause it means that there
must be some reasonable ground which must
come before the court. This position frequently
relieves the court itself from difficulty. it
might be much worse for party to be com.
PEELED to give bond than to stand a trial at
once.
Judge Campbell. Except in cases of hus-
band and wife, and lawyer and client, which
Of government because this is government
case--is entitled to the testimony Of every one
of its citizens, and if a person should refuse to
testify, he would be liable to instant punish
ment by the court The Constitution says that
no man shall be compelled to give testimony
against himself That is, when he would there
by render himself liable to criminal prosecu-
tion. But when the person would not be liable
10 prosecution, he may be forced to answer,
even though by his testimony he may subject
himself to all the obloquy and moral conse-
quences of guilt. A person in such position,
has no right to come before jury engaged in
investigating supposed violation or intended
violation Of law, and refuse to give testimony.
If a witness refuse TO answer on the ground
that be would be subjected to prosecution, it
becomes evident that some crime has been
committed or is intended 10 be committed, and
that he has connection with it to such an ex.
tent, as to be prescribed from giving testimony.
He thus stands separate from the mass of cti-
zens, since, because he is implicated in an ille-
gal enterprise, he is incapable Of performing
civil duties. The grand jury states its belief
that such an illegal enterprise is in progress
not perhaps to such an extent as to involve the
probability of evil or dangerous consequences,
but Notwithstanding this it is going on. This
Is stated on oatn Dy the grand lury-not on the
oath of one man, but on the oath of a number
Of respectable citizens who have been engaged
in the investigation Of the subject If there
can be any case coming within the doctrine of
the law which have just quoted, this is one.
II is evidently case in which there may be
fair presumption of intended crime. would
remark that recognizance is not intended as
a punishment of crime committed because the
law does not say so. II is intended to prevent
crime, by exacting security for good behavior
Mr.. Waul.-These parties do not wish to
make an admission of guilt. They simply de-
sired to avail themselves of privilege which
the law extends to them. The law says that
the refusal of witness to answer on the ground
that he might criminate himself, shall not be
used against him, or construed into an evi.
dence or presumption Of guilt To take such
refusal as ground for raising presumption
of guilt, and on that to compel him to enter
into recognizances, is to destroy the value of
that privilege which the law guantees to him,
and to deprive II of its character as shield
and protection. The jury had, therefore, no
right to presume that an expedition is on foot,
or that violation of law is intended because