United States Circuit Court, Eastern District of Missouri, March after argument, submitted to the court, March 23, 1875. The Term, 1875.

jurisdiction of the circuit court of the appeal was conceded by counsel.

William Patrick, United States District Attorney, for the United

1. Libels in District of Columbia.-For a libel composed and published in the States; James O. Broadhead, for Buell.

District of Columbia, the author and publisher may be there indicted and punished as for an offence against the United States.

2. Fugitives from Justice-Crimes Committed in District of Columbia.Under 2014 of the revised statutes of the United States, "for any crime or offence against the United States," committed in the District of Columbia, the offender may be

arrested in any of the states, and removed to the District of Columbia for trial.

3.-. Judge may Look into Indictment.-In such a case the district judge before whom the application for the removal of the alleged offender is made, may properly look into the indictment against him, and if it fail to disclose, by necessary averments, an offence against the laws of the United States triable in the District of Columbia, it is his duty to refuse to issue the warrant for his removal.

United States, in the District of Columbia, and the decisions of the Supreme Court of the United States concerning the effect of the above mentioned act of February 27, 1801. Rhodes v. Bell, 2 How. 397; United States v. Simms, 1 Cranch, 258; Stelle v. Carroll, 12 Peters, 205; Kendall v. United States, 12 Peters, 524; ex parte Watkins, 7 Peters, 575.

By the act of 1801, says Chief Justice Taney, "the common law in civil and criminal cases, as it existed in Maryland at the date of this act of Congress (February 27, 1801), became the law of the District of Columbia, on the Maryland side of the Potomac." The Virginia portion was retroceded in 1846.9 Statutes at Large,

33.

It will therefore be assumed that the offence of libel in the District of Columbia is an offence against the United States, for which the offender may be there indicted as at common law and punished.

This being so, and Mr. Buell having been there indicted for such an offence, our enquiry is, whether there is any law authorizing the removal of persons found beyond the District of Columbia to to that district for trial, for offences committed therein. In this respect there is no difference between libel and other offences, and the question is a general one, whether for any offence committed in the District of Columbia, against the laws of the United States, the offender found elsewhere can be removed there for trial. On this point, under the law as it stands, I have no doubt. The authority is ample and the language of the revised statutes (sec. 1,014) in connection with the act of June 22, 1874, removes the doubts arising on the words "such court of the United States as by this act (the judiciary act of 1789), has cognizance of the offence."

The District of Columbia is not a sanctuary to which persons committing offences against the United States may fly and be beyond the reach of justice, nor is the law so defective that persons there committing such of ences and escaping or found elsewhere, can not be taken back there for trial. I agree to the views in general of the district judge on this point, as expressed in his opinion, which accompanied the record in the case, and do not think it necessary to enlarge upon it.

The statute provides that United States commissioners and certain magistrates "for any crime or offence against the United States," may "arrest and imprison, or bail the offender for trial before such court of the United States as by law has cognizance of the offence." Rev. Stats. sec. 1,014. An information was filed before Commissioner Clarke, who committed the prisoner to the custody of the marshal. In such a case the further provision is that "where any offender is committed in any district, other than that where the offence is to be tried, it shall be the duty of the judge of the district where such offender is imprisoned, seasonably to issue, and the marshal to execute a warrant for his removal to the district where the trial is to be had." Rev. Stats. sec. 1,014. On the proceedings before him the district judge refused to issue the warrant of removal and discharged the prisoner; and the question is whether his action in this case ought to be reversed. The district judge, in making this order, proceeded upon the ground that he might properly look into the indictment, and if it was fatally defective in essential averments to constitute an offence triable in the District of Columbia, he might refuse to issue the warrant for the prisoner's removal. It is argued that the question of the sufficiency of the indictment is for the court in which it was found, and not for the district judge on such an application. Re Clarke, 2 Benedict, 540. I can not agree to this proposition in the breadth claimed for it in the present case. This provision devolves on a high judicial officer of the government, a useful and important duty. In a country of such vast extent as ours it is no light matter to arrest a supposed offender, and on the mere order of an inferior magistrate remove him hundreds, it may be thousands of miles, for trial. The law wisely requires the previous sanction of

the district judge to such a removal. Mere technical defects in an indictment should not be regarded; but a district judge who should order the removal of a prisoner when the only probable cause relied on or shown was an indictment, and that indictment failed to show any offence against the laws of the United States, or showed an offence not committed or triable in the district to which the removal is sought, would misconceive his duty and fail to protect the liberty of the citizen. It is the constitutional right of the citizen to be tried in the district in which the offence imputed to him is alleged to have been committed, and not elsewhere. Article 2, section 2.

In this case the district judge discharged the prisoner, on the ground that the indictment failed to show that the alleged libel was published in the District of Columbia, but showed rather that the offence charged therein was an offence, if at all, against the laws of Michigan. If this is a proper view of the indictment, his action was unquestionably proper. The language of the indictment is peculiar. It was only necessary for the pleader to have averred that the defendant did not compose and publish the libellous matter, setting it out, within the District of Columbia. Such are the that the precedents. Why is it alleged out of the ordinary course, libel was composed and written in the form of a newspaper article, and printed in the Detroit Free Press, in the state of Michigan, and afterwards, to wit, on the day and year aforesaid, published in the District of Columbia?

The district attorney, notwitstanding some old English cases, very properly admitted that publication by the defendant in the District of Columbia was essential to the offence, and that if this libel was published in Michigan, by the procurement of the defendant, he could be there indicted for it. But he contended that if the paper containing the libellous article was afterwards published (in the legal sense) by the defendant in the District of Columbia, he could also be there indicted for it as an offence against the United States, and he claimed that in this aspect of the question, the indictment was sufficient to charge such an offence. Whatever may be the correctness of the contention of counsel in these respects, it seems to me quite doubtful whether the indictment intended to charge a substantive publication by the defendant in the District of Columbia, or any publication in that district, except so far as composing a libel there for publication in a newspaper elsewhere, is in law a publication in the district. This without more would not be a publication in the district. Upon the authorities it seems clear that if the defendant composed a libel in the District of Columbia, with intent to have it published in a newspaper in Michigan, and it was there published by the defendant's procurement or consent, he would be liable to indictment in the latter state. 1 Russell on Crimes, 258 and cases cited; 3 Chitty Cr. Law, 872; Rex v. Johnson, 7 East, 68; Commonwealth v. Blanding 3 Pick. 304. But the indictment would then be for an offence against the laws of the state of Michigan, and not of the United States. Therefore the present indictment states facts which show a violation of the laws of Michigan. But is contended that it also shows an offence against the laws of the United States in the District of Columbia. Merely composing the libel in the district would not be sufficient, as the whole corpus delicti which includes publication in the district, is essential. If it had been intended to charge that the defendant not only wrote the libel in the District of Columbia, but after its publication in the Detroit Free Press he had also published it in the District of Columbia, in any manner which in law constitutes a publication, the pleader should either have followed the precedents and omitted all reference to the publication in Michigan, or if he alleged such publication, he should have made a positive and plain allegation of a substantive and distinct publication by the defendant of the libel, in the District of Colum

bia.

As above remarked, the most natural construction of the indictment, is that it is framed upon the erroneous legal notion that if a

leave of court. Prior to the term, complaint on oath had been made before a United States commissioner, charging the defendant with the said offences against the revenue laws, and the defendant was arrested upon a warrant issued by the commissioner, and held to answer to the United States District Court, and required to give bail in the sum of $500, which he did. At the term, the dis

moved the court for leave to file criminal information against the defendant, charging him with the said offences, which leave was granted, and the information accordingly filed. The defendant appeared and pleaded guilty. Afterwards his counsel made a motion in arrest of judgment, upon the ground that the defendant can only be prosecuted and punished criminally upon the presentment or indictment of a grand jury, and not upon an information.

libel is composed within the District of Columbia for publication elsewhere, and it is accordingly published, this, without more, is a publication in the district, and makes the offence complete. But suppose that it can be deduced that the pleader intended to charge a distinct, substantive publication of the libel by the defendant, in the District of Columbia, it can hardly be expected that the wellknown requirements of certainty in the allegations of an indict-trict attorney, upon the said complaint, warrant and recognizance, ment can be disregarded, and that the court will supply by inference and argument the defects or omissions in the indictment. The most essential ingredient of libel is the publication; and the all-essential element of the offence charged in the present in dictment is the publication by the defendant within the District of Columbia. The uncertainty of the indictment in the latter respect is sufficient to vitiate it. As the grand jury have not plainly said that the defendant published the article in the District of Columbia, in addition to the publication in Michigan, the court can not intend that they meant to say it. It is a fundamental doctrine in English and American law, that there can be no constructive offences; that before a man can be punished, his case must be clearly within the law; the charge is to be unmistakably set forth in the indictment, and if there be uncertainty or fair doubt, whether the law embraces the act, or the indictment sufficiently charges the offence, the doubt is to be resolved in favor of the accused. United States v. Morris, 14 Pet. 464. United States v. Wiltberger, 5 Wheat. 76.

I have no hesitation in applying these liberal and just principles to the present case, because if libel in the District of Columbia be an indictable offence against the United States, it is an exception, curiously brought about, to the general rule that there are no common law offences against the general government, and because the defect in the present indictment is not merely formal or technical, but goes to the gist of the offence for which the prisoner is sought to be removed.

The provision (Rev. Stats., Sec. 731) that when any offence is

commenced in one district and terminated in another, the trial may be had in either, and the offence may be deemed to have been committed in both, although urged by the district attorney, has, in my judgment, no application to this case. The argument is, that if the defendant composed the libel in Washington, and sent it to Michigan for publication, and it was there published, he may be tried in either place in the courts of the United States. Such an extension of the law of libel can hardly be said to have the sanction of the English courts, where prosecutions for libel have been carried very far, and it can not be very seriously expected that a court in this country will assert any such alarming and dangerous doctrine.

Not to mention other fatal objections to the argument, it is sufficient to advert to the fact that, in the case supposed, there is no law in the state of Michigan where the offence is said to have been “terminated," making libel an offence against the United States. The order of the district court is affirmed and the prisoner discharged. ORDERED ACCORDINGLY.

Mode of Criminal Prosecutions in the Federal

Court.

UNITED STATES v. WILLIAM R. MAXWELL.

It is upon this motion that the case is before the court.

James S. Botsford, District Attorney for the United States; Mack 7. Leaming, for the defendant.

DILLON, Circuit Judge :-The offence charged in the information is a misdemeanor, and not a "capital or otherwise infamous crime." The defendant was originally arrested by virtue of a warrant issued by a commissioner of the United States, upon a complaint duly made to him under oath showing probable cause. There is, therefore, no ground to claim that the guarantees of personal liberty secured by the fourth amendment to the constitution have been violated, which provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

The information was afterwards filed by leave of court, and the

defendant after pleading gulity, moved in arrest of judgment. This motion must be sustained if there is no authority of law for

the prosecution of such misdemeanors in the federal courts, by

"

criminal information.

The fifth amendment to the federal constitution provides that no person shall be held to answer for a capital or otherwise infamous crime, unless upon presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." capital or inThe offence charged against the defendant is not a famous crime." The words "infamous crime," have a fixed and settled meaning. In a legal sense they are descriptive of an offence that subjects a person to infamous punisment, or prevents his being

a witness. The fact that an offence may be, or must be, punished

it, in law, infamous.

by imprisonment in the penitentiary, does not necessarily make 1 Bish. Cr. Law, secs. 70, 644; Rex v. Hickman, I Moody, 34; Com'w. v. Shaver, 3 Watts and Serg. 338; Russell on Crimes, 126; 1 Greenl. Ev. secs. 372, 373; People v. Whipple, 8 Cowen, 707; United States v. Shepard, 1 Abb. U. S. Rep. 431, 439.

The constitutional provision, therefore, as to the mode of prosecuting capital and infamous offences has no application to the misdemeanor set forth in the information.

But the question remains, whether other than capital and infamous offences may be prosecuted in any other mode than upon presentment or indictment of a grand jury. In other words, must United States Circuit Court, Western District of Missouri, April all federal offences, of whatever character or grade, be prosecuted

Term, 1875.

upon an accusation made by a grand jury?

The constitutional provision above quoted does not say that all Before Hon. JOHN F. DILLON, Circuit Judge, and Hon. ARNOLD offences must be prosecuted with the sanction of a grand jury, but KREKEL, District Judge.

only that certain classes of offences must be. The fair implication is that offences other than those falling within the classes specific

Offences "not capital or otherwise infamous" may, by leave of court upon complaint ally described, may be prosecuted otherwise than through the

on oath, be prosecuted in the federal courts by criminal information.

An information charging the defendant with several violations of the internal revenue laws was filed by the district attorney by

intervention of a grand jury. And certainly as respects offences not capital and not infamous, there is no restriction upon Congress as to the mode of procedure; and as to such offences it is entirely

competent for Congress to provide that they shall be prosecuted upon indictment or information, or in either mode. But there is no act of Congress prescribing in terms that such offences shall be proceeded against by indictment, or by information, or otherwise. Of course they may be prosecuted by indictment. This is admitted; and it is clear from the fifth constitutional amendment, and from various provisions of acts of Congress in relation to grand juries, etc., that it is contemplated that crimes of all grades may be prosecuted upon the presentment or indictment of a grand jury. But is it contemplated that all offences, although not infamous, must be thus prosecuted? There is no act of Congress to that effect; and no specific declaration of its will, for or against prosecutions by criminal information.

are capital or infamous, and there is no enactment of Congress preventing a resort to this mode of procedure. On the contrary, there are provisions in several acts of Congress which imply that informations may be filed for criminal offences. I Stats. at Large, p. 98, sec. 7-32; 2 Stats. at Large, p. 290, sec. 3; 3 Stats. at Large, p. 305, sec. 179; 14 Stats. at Large, p. 145, sec. 179.

And it has been several times expressly adjudged that offences not capital or otherwise infamous may be prosecuted in the federal courts by information. United States v. Waller, I Sawyer, C. C. 701 (Field & Sawyer, JJ.); United States v. Shephard; Abb. U. S. Rep. 431 (Withey, J.); United States v. Ebert, I CENT. LAW J. 205 (Krekel, J). And such seems to have been the opinion of Justice Story. United States v. Mann., I Gall. C. C. 3; 1 Ib. 552, 554. And see Walsh v. Urited States, 3 Wood & M. 341; Bishop Crim. Proc., secs. 604-611; contra, United States v. Joe, 4 Chi. Legal News, 105. In The United States v. Isham, 17 Wall. 496 ; The United States v. Buzzo, 18 Wall. 125, the proceeding by criminal information does not seem to have been questioned in either court. See also Territory of Nebraska, ex rel., etc. v. Lockwood, 3 Wall. 532; Stockwell v. United States, 17 Wall. 236.

Criminal prosecution for misdemeanors was a familiar mode of procedure in England, "as ancient," says Blackstone (4 Com. 309), "as the common law itself," and was the only existing mode of prosecution, it seems, except by indictment or presentment of a grand jury. Ib. 308. It was a mode in daily and constant use in England at the time of the American revolution, as well as in the American colonies. This was well known when the fifth amendment of the constitution was adopted, which provided only for the previous action of a grand jury in capital or otherwise infamous offences. If it had been intended wholly to prohibit prosecution by information, language expressive of such intention would have been used. Congress has never enacted a code of criminal procedure, and the states have no power to prescribe either modes of proceedings or rules of evidence in prosecutions for fed-issue. But with these safeguards there is no more reason to fear eral offences. In a general way the federal courts must be governed in these respects by the common law, with the modifications pointed out by the supreme court. United States v. Reid, 12 How. 361.

Congress, nevertheless, created federal offences, and clothed the federal courts with jurisdiction over such offences, and no legal reason exists, in the absence of express legislation, why such of fences must be prosecuted in only one of the two well known common law methods.

Owing to causes not necessary here to notice (4 Blacks. Com. 309, 310), the proceeding by information was unpopular in England, and doubtless also in the colonies, and it has, in many of the states from a very early day, been either restricted or prohibited. In the law lectures of Joseph Wilson, one of the justices of the Supreme Court of the United States, which were delivered in 1790, he recognizes an information in the name of the state as one mode of prosecuting crimes and offences, and after referring to the two kinds (one strictly public, and the other at the instance of a private person or informer) says: "Restraints have, in England, been imposed upon the last species; but the first-those at the king's own suit, filed by his attorney-general-are still unrestrained." 4 Bl. Com. 3c7. By the constitution of Pennsylvania, both kinds are effectually removed. By that constitution, however, informations are still suffered to live, but they are bound and gagged. They are confined to official misdemeanors; and even against those they can not be slipt but by leave of the court. By that constitution "no person shall, for any indictable offence, be proceeded against criminally by information, unless by leave of the court, for oppression and misdemeanor in office." 3 Wilson's Works, 144, 145. See also 4 Wend., Bl. Com. 309, note as to bill of rights and decisions in New York; Wharton's Crim. Law (7th Ed.), sec. 213.

We are of the opinion, therefore, that offences not capital or infamous, may, in the discretion of the court, be prosecuted by information. We can not recognize the right of the district attorney to proceed on his own motion, and shall require probable cause of guilt to appear by the oath of some credible person before we will allow an information to be filed and a warrant of arrest to

an oppressive use of information than there is reason to fear an abuse of the powers of a grand jury. Where the accusation is a grave one, or where the charge seems to be doubtful, the court will refuse leave to file an information and compel the district attorney to lay it before a grand jury. But it is well-known that the internal revenue laws have created a large number of minor offences, many of them involving no moral turpitude, and that the cost of proceeding by a grand jury, and the delay, are burdensome and inconvenient both to the government and the defendant.

In this class of cases, most of which are not defended, great and unnecessary expenses will be saved by proceeding by information, and we not only think the practice legal, but one which, in cases of this kind should, with the restrictions above mentioned, be adopted and encouraged rather than condemned. The courts in this county have never been made the instruments of power in oppressing the citizen, and it can, perhaps, further be safely affirmed that the government has yet to attempt to make use of the machinery of the law for that purpose; and if it should, it seems quite probable that it would be as easy to secure an indictment from a grand jury, as the consent of the court to the filing of an information. This line of observation is, however, scarcely called for, since the court is only concerned on the motion with the lawfulness of a prosecution by information, and is not obliged to vindicate the propriety or policy of this mode of procedure.

The motion in arrest of judgment is overruled.

1. Trial by Jury-General and Special Verdicts.-While one of the substantia elements of the right of trial by jury, is the right to give a general verdict on the merits a special verdict can not be held unauthorized.

2. Insane Murderers - Special Verdict of Insanity. If a jury agrees that a

But the constitutional provision (fifth amendment) leaves all offences open to prosecution by information, except those which prisoner charged with murder was insane, and would have been guilty if not so, they are

at liberty, though they can not be compelled, to find that fact specially. A general vordict of not guilty, if there is reasonable doubt of insanity, can not be prevented.

3. Non-Compotes-State Guardianship - Due Process of Law.-The state has an ultimate guardianship over non-compotes where it is necessary, and may provide

such protection and care for them as will prevent them from injuring or being injured, if they are dangerous or in need of seclusion. But private liberty can never be subject to the discretion of any one person, and they can not be deprived of liberty without due process of law.

Opinion of the court by CAMPBELL, J.

can be no reason to doubt the propriety of making provision to secure to such unfortunate persons protection and care, in such a way as to prevent them from injuring or being injured, if they are dangerous or in need of seclusion. The state has an ultimate guardianship over non-compotes, in cases where it is necessary. But, inasmuch as such authority can only exist over those who are thus disqualified, the power of determining their condition is one of great importance, and one which espcially involves judicial oversight. In this country, where all legislation must be within constitutional limits, and does not reach the full parliamentary range, private liberty can never be subjected to the mere discretion of any person. No one can be deprived of liberty without due process of law. Any involuntary control or seclusion is im

laws. Every person has a right at all times to resort to the courts to have the legality of restraint determined, unless he is imprisoned under a valid judgment, under proceedings where he had a regular trial or hearing.

Underwood brings error upon a judgment of the Recorder's Court of Detroit, whereby he was committed to the State Prison Insane Hospital as a person charged with murder, and acquitted on the ground of insanity. He claimed that the statute is invalid. The statute in question, being act No. 168 of the laws of 1873, entitled an Act to Provide for the Custody and Safe-keeping of Per-prisonment, and that is only justifiable when enforced under valid sons who are Tried for Murder and other High Crimes, and are Acquitted by Reason of Insanity, provides in substance, that when the defence of insanity is set up in the cases provided for, the jury shall find specially whether the respondent was insane when the alleged crime was committed, and if acquitted on that ground, the The present statute requires the respondent to be confined until This reverdict shall so declare. In such case the court is to sentence him he is discharged in the manner pointed out by the act. to confinement in the insane hospital of the state prison, until dis- quires, first, the action of the prison inspectors, for whose accharged in the manner pointed out. This can only be done when tion the statute has made no provision unless they choose; second, the prison inspectors summon (as they are empowered to do) the the summoning of a circuit judge from any part of the state to the circuit judge of the circuit from which he is sent, and the medical state prison, and the summoning of the asylum surperintendent superintendent of the Kalamazoo Insane Asylum, who are there- from Kalamazoo to the same place; third, a joint examination an upon to examine into his condition, and if they certify that he is agreement, either being competent to balance the other, and their not insane, the governor is to discharge him. The finding of the disagreement turning the scale in favor of imprisonment. It was jury is confined to the prisoner's condition at the time of the com- held in People Ex Rel. Atty.-General v. Lawton, Judge of Probate, mission of the alleged criminal act. The indictment or informa- October Term, 1874, that a law was not enforceable unless it tion embraces, and can lawfully embrace,no issue except the prison- furnished adequate means to secure the purposes for which it was er's guilt as charged. The right of trial by jury is secured by constitu-enacted. See also People v. Smith, 9 Mich. 193. It would be attional provisions, and it would not be competent to make any tributing more than folly to the legislature to assume that they substantial changes in its character, as suggested in People v. would intentionally pass a law which would leave a sane man Marion, 29 Mich. 31. One of its substantial elements is the right liable to perpetual imprisonment, where he has been acquitted of of the jury to give a general verdict on the merits. Any collateral crime. There is nothing in this law or elsewhere, which could enquiry would be foreign to the issue. And as no insane person compel the performance of the functions necessary to release a is subject to be put on trial, a finding that they had been trying sane person committed to the insane asylum. The inspectors of such a person would be somewhat inconsistent with the notion the prison act, or not, as they see fit. Neither the prisoner nor his that the trial could have been proper. The statute has avoided this friends can compel action. No circuit judge can be compelled to error by confining their attention to the time of the offence; and perform functions not judicial in that capacity, and if he could, the while it is not competent to prevent an acquittal on a reasonable law points out no means of bringing him and the medical superdoubt of insanity, which would require a general verdict of not intendent away from their own counties at the command of a board guilty, yet if the jury agree that the prisoner was insane, and of inspectors. The law furnishes no means of summoning and that he would have been guilty if not so, they are undoubtedly at swearing witnesses, or securing the means of a fair examination, or liberty, though they can not be compelled, to find that fact of determining any rules of action. But the more serious difficulty specially. We can not hold a special verdict or finding unauthor- is in the nature of the proceedings themselves. In the first place, ized, as the common law furnishes abundant precedents to the con- the prisoner is sent into confinement without any legal investigatrary. 1 Hale, P. C. 38. tion into his condition at that time, when he may be perfectly sane, and when, having been acquitted, he is entitled to all the privileges There may be a very long interval between of any innocent man.

The questions to be considered must be determined on the assumption that the verdict itself is unauthorized. As insanity, when disthe offence and the trial. covered, was held at common law to bar any further steps against a prisoner, at whatever stage of the proceedings, it was always compeHaving been so secluded, he is excluded from the right, and all tent to institute an enquiry into his condition. This investigation was others are excluded from the power, of resorting to any effectual sometimes had by the court alone, and sometimes by aid of means, or any means whatever, of securing a judicial enquiry into a jury of inquest, which is regarded as the safest and his sanity. Neither judge nor expert has any power under our most regular practice. See 1 Hale P. C. 29 to 37 passim. constitution to select his own means and process of enquiry, and In England the detention is during her Majesty's pleas-pass ex parte upon the liberty of citizens. The proceedings conure, whether on an acquittal by reason of insanity, or upon an inquest. See Oxford's Case, 9 C. & P. 305; Regina v. Goode, 7 A. & E. 536; Reg. v. Hodges, 8 C. & P. 195; Rex v. Pritchard, 7 C. & P. 303; Rex v. Dyson, 7 C. & P. 305. In Oxford's case the jury evidently had doubts whether he had actually done the act charged, and subsequent events showed that it was not likely he was dangerous, if insane at all, yet he was never discharged. Our compiled laws, long before this statute, authorized the judge to conduct such an enquiry, when the jury render such a verdict (Comp. L., Sec. 7957), and this is a better course. There

templated by this statute, are not only inquisitorial and ex parte, but the officers selected, who are undoubtedly as fit as any one to conduct such enquiries, have no power to act until the inspectors choose to call them. It practically leaves the liberty of the person confined to depend upon the uncontrolled pleasure of the inspectors. A more dangerous scheme, and one more entirely opposed to the constitutional provision securing to every one the protection of due process of law, could hardly be devised.

It is a result of the dangers which have been multiplied by the absurd lengths to which the defence of insanity has been allowed