thereof; and again, on the 23d of April, he was in the corridor leading to said court-room, and saw at least fifty persons who were peremptorily refused admission by the police-officer stationed at the door, there being not to exceed a half-dozen persons sitting upon the benches in the court-room.

W. C. Nash swears that he is a resident of the city of Detroit, and that he made application for admission to the courtroom during the progress of the trial of Thomas Murray, charged with the murder of Officer Shoemaker; that he was peremptorily refused admission by the police-officer stationed at the door of said court; that he had an opportunity to see into the court-room, and knows that the benches on the north side of said court-room provided for the public were practically vacant; and that at the time he made application for admission to said court he saw a number of persons in the corridor leading to said court who apparently desired to get in, but were not permitted to do so by the officer at the door.

To the writ of certiorari the presiding judge returns as follows: "I hereby certify and return that the following statement of what occurred is a true and correct statement of all that occurred, within my knowledge, during the said trial, while court was in regular session, in reference to the exclusion of the public from the court-room, as appears from the stenographic minutes:

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'Mr. Springer: My attention has been called to the fact that a large number of respectable citizens and tax-payers have been excluded from the court-room by the officer, who does not seem to be able to exercise any discretion whatever in that respect, and the talk around town is, that this trial is a sort of a star-chamber proceeding.

"The Court: You don't think so?

"Mr. Springer: I don't know, your honor. I don't know who has been excluded or who has not; but for the sake of saving the point, I desire an exception to be entered on the record.

"The Court: I cannot give you an exception to that. That is not in the order of trial. That is not the way to get it. There is nothing before the court on that subject. I want to say this: The orders to the officer were, that he should stand at the door, and see that the room is not overcrowded, but that all respectable citizens be admitted, and have an opportunity to get in when they shall apply.

"Mr. Springer: If your honor please, I understand

"The Court: If you can make any capital out of that, you can make it.

“Mr. Springer: I am not trying to make any capital out of it.

"The Court: It looks like it.

"Mr. Springer: In order to determine whether or not these things have been done, I think it would be well to call the officer to the stand to testify to what he has done.

"The Court: You propose to stop the trial now, and introduce extraneous matter. I do not propose to.

"Mr. Springer: Your honor, then I will take an exception to that.

"The Court: The officer has got his orders, and they are in accordance with the law, as I take it, and if you have any objection you will have to take it in some other way than by exception. Proceed with the trial.'

"And I hereby further certify and return that no order was ever made by me at or during the said trial excluding any person or persons from the court-room during the said trial; that the said trial was at all times during the same a public trial, within the meaning of the constitution; that the said court was every morning, while the same was had, regularly opened by an officer thereof, duly authorized, and declared open for the hearing and trial of causes, and there were several places of ingress and egress accessible to persons wishing to visit the said court at all times, and there were always present during said trial several persons, and at most times a very large assembly of persons, apparently listening to the trial."

We cannot accept the conclusion of the judge, "that the said trial was at all times during the same a public trial, within the meaning of the constitution." The first clause of section 28 of article 6 of the constitution reads as follows: "In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury."

The right to a public trial is one of the most important safeguards in the prosecution of persons accused of crime. In this case, when the accused is upon trial for a crime for which, if convicted, his punishment is that he must suffer a life impris onment, a civil death, an order is made by the court which violates the constitutional right of the accused, and the statute enacted to protect the rights of parties in both civil and criminal cases. The right of the accused to a public trial is included in the same section of the constitution with the right

to a trial by an impartial jury of twelve men; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. It is not necessary to review the history of the administration of the criminal law in England, or to call attention to the abuses in its administration, to show the reason why these important provisions were inserted in our constitution, which, in this respect, is but a reflection of similar provisions contained in all of the constitutions of the American states and of the United States. They are each and all enacted for the protection of rights of persons accused of criminal offenses, and each is a constant memorial of the great abuses practiced in England at one time and another prior to the American revolution, in conducting criminal prosecutions. In Hill v. People, 16 Mich. 351, it was held that the accused person could not waive his constitutional right to a trial by a jury of twelve men, guaranteed to him under this section of the constitution, and it was said by the court that "it is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated."

In this case it is apparent that the constitutional rights of Murray were violated in the order of the court to the policeofficer stationed at the door of the court-room, "that he should stand at the door, and see that the room is not overcrowded, but that all respectable citizens be admitted, and have an opportunity to get in when they shall apply."

It is shown beyond question that during the whole trial the court-room was not overcrowded, nor were the seats provided for spectators occupied to any great extent. This officer was under the control of the court, and when the court was informed that he was excluding citizens and tax-payers, he refused to take any notice of the complaint, and left the officer to exercise his discretion as to what respectable citizens he should admit. Is respectability of the citizen who desires to witness a trial to be made a test of the right of access to a public trial? and is that test to be left to the knowledge or discretion of a police-officer? Must a citizen who wishes to witness the trial of a person accused, whether he be a friend, an acquaintance, or a stranger to the accused, present to the police-officer stationed at the door of the temple of justice a certificate of his respectability? If so, by whom shall it be certified? By the mayor, the chief of police, or police com

missioners, or by his pastor or clergyman? Neither the constitution nor the law requires any such preposterous condition to the admission of a citizen to attend and witness a trial, either civil or criminal.

The order of the court stationing the policeman at the door, with directions to admit none but respectable citizens, was not only a violation of the constitution, but it was a direct violation of the public statutes of this state. Section 7244 of Howell's Statutes enacts: "The sittings of every court within this state shall be public, and every citizen may freely attend the same."

This statute has been in force since 1846. It voices the sentiment of the people at the time the constitution of 1850 was adopted. It gives expression to what is there meant by a public trial. Courts have no dispensing power when the legislature has spoken. The judge who presided at the trial of this case was as much bound by this provision of law as the humblest citizen. The trial may have been an impartial one; the respondent may have been justly convicted; but it still remains that it was accomplished in violation of his constitutional and statutory right to a public trial. Edmund Burke never expressed a more important truth than when, speaking respecting the suspension of habeas corpus at the time of the American revolution, he said: "It is the obnoxious and suspected who want the protection of the law." Courts of final resort cannot consider the question whether the respondent was justly convicted or not in passing upon questions of law presented for their consideration. It is for the protection of all persons accused of crime - the innocently accused, that they may not become the victim of an unjust prosecution, as well as the guilty, that they may be awarded a fair trial—that one rule must be observed and applied to all.

Since the case was submitted, we have been furnished with a brief by Allan H. Frazer, in behalf of the people, who is the prosecuting attorney who secured the conviction of Murray. The position taken by the learned prosecutor in support of the conviction of Murray is: 1. That the fact that Murray was not awarded a public trial cannot be raised or adjudicated upon certiorari; 2. That he did have a public trial, within the meaning of section 28, article 6, of the constitution.

We do not think that the errors brought up by the writ of certiorari could have been reached by a writ of error. Many

facts which are shown in the affidavits and petition for the writ would not appear in the return to a writ of error or in a bill of exceptions. The bill of exceptions only brings up such facts as appear in the course of the trial in the presence of the court. And during the trial in this case the court plainly told the counsel for the accused that he could not raise the question in the way in which he was seeking to do it, and charged him with an effort to make capital out of his objections. The bill of exceptions would not have shown that the court-room was not crowded; that most of the seats provided for spectators were vacant; that many different persons, and the particular persons showing themselves to be citizens of the state, had applied for admission, and had been refused; none of these things could have appeared in the bill of exceptions. We think that they were properly raised and brought before the court by the writ of certiorari.

Three authorities are cited in support of the action of the judge. One is the case of State v. Brooks, 92 Mo. 573. In that case, in the opinion handed down by the supreme court, it was said that an objection was taken that the defendant did not have a public trial, and the court said: "This claim is based upon the fact that during the early stages of impaneling the jury two men were stationed, on the afternoon of one day and the forenoon of the next day, at the door of the court-room, who refused to admit any one into the court-room except jurors, witnesses, or officers of the court, or those having business in court. It appears that when this matter was brought to the attention of the court, the court stated that no order had been made stationing men at said door, and announced that any one who wished to come into the court-room could do so, and made an order that all persons be admitted until all the seats were filled. Had the court either refused to make such an order, or if, after making it, had refused a request on the part of the defendant that the jurors who had been examined touching their qualifications while the men were stationed at the door should be re-examined, this might have afforded some ground for the complaint made; but no such a request was made."

This is not in any respect a parallel case to the one under consideration. In the Brooks case the exclusion of the public only continued through the afternoon of one day and the forenoon of the next. In Murray's case it lasted during the entire trial of two weeks. In the Brooks case, when the matter was