press the same text to opposite tenets? How then comes it to pass, that two persons may not apprehend, with reason and honesty, what a witness, or many, say, to prove in the understanding of one, plainly one thing, but in the apprehension of the other, clearly the contrary thing? Must therefore one of these merit fine and imprisonment, because he doth that which he cannot otherwise do, preserving his oath and integrity? And this often is the case of the judge and jury." Another, and perhaps one of the most important privileges of the accused, and not only a privilege but a right, a constitutional right, is, that he shall be allowed a defence by counsel on the trial, when so accused. When we compare the humanity of this right, with the barbarity of the ancient criminal law of England, which denied to persons accused of the crimes of treason or felony, the aid of counsel, it should inspire a feeling of pride in the American citizen, that he lives under the protection of such a government. "When an ignorant person, unaccustomed to public assemblies, and perhaps feeble in body or in intellect, was put on trial on a charge of which, whether true or false, might speedily consign him to an ignominious death; with able counsel on the part of the government, arrayed against him; and all the machinery of the law ready to be employed to produce the evidence of circumstances indicating guilt, it is painful to contemplate the barbarity which could deny him professional aid; especially, when in most cases he would be imprisoned immediately on being apprehended, and would thereby be prevented from making even the feeble preparations for defence, that otherwise might have been within his power." a This horrible practice continued in England until the year 1695, the seventh of William III, when a statute was passed allowing counsel to persons indicted for treason. A notable case, (in this day it would be called infamously barbarous), is reported in the sixth volume of the English state trials, which occurred on the day before this statute took effect, but after its passage, William Parkins was indicted for treason. On his arraignment and pleading not guilty, he asked permission "To speak a word; if your lordship pleases." Lord Chief Justice. "Aye sir, what say you." Parkins. "My lord, I a Cooley on Const. Lim. 331. Note. nave been kept in hard prison ever since I was committed; nobody has been permitted to come to see me till Friday last-then my counsel came to me; and being charged with many facts as I see in this indictment, it will be necessary to have divers witnesses to clear myself of these particulars; they are dispersed up and down, and I have had no time to look after them, and therefore, I beg your lordship to put off my trial till another day." Lord Ch. J. "When had you first notice of your trial?" Parkins. "The first notice of my trial was on Wednesday last, in the afternoon." Lord Ch. J. "That is a sufficient time of notice; sure you might have provided your witnesses and prepared for it by this time?" Parkins. "But, my Lord, being kept so close prisoner, I had no opportunity for it, for it was not possible for me to get any body to come to me, till Friday noon, not so much as my counsel, and then, there was but two days, Saturday and Monday, (for Sunday is no day of business,) and it is impossible for me to be ready in the manner that I ought to be. It is a perfect distress and hardship upon me to be put so soon upon my trial without my witnesses, and, what should enable me to make my defence; therefore, I humbly intreat your lordship, to put it off till another day.” After various other interlocutions, immaterial. Lord Ch. J. "Truly, we do not see any reason to put off the trial upon these suggestions." Parkins. "My Lord, it is very hard; then I humbly beg that I may have the favor; that I may have counsel allowed me; I have no skill in indictments." Lord Ch. J. "We cannot allow counsel." Parkins. "My Lord, if I have no counsel, I do not understand these matters, nor what advantage it may be proper for me to take in these cases.' Lord Ch. J. "You are not ignorant, that counsel has always been refused when desired." Parkins. "My Lord there is a new act of parliament that is lately made, that allows counsel." Lord Ch. J. "But that does not commence yet sir." Parkins. "My Lord, it wants but one day." Lord Ch. J. "That is as much as if it were for a much longer time. We are to proceed according to what the law is, and not what it will be." Sufficient of the temper and spirit of English judges of that day, appears in the report of this case, where it is shown, that they were removed from all sympathy with the people, and unrestrained by constitution or statute. The want of common humanity in a judge, manifest by his refusal to postpone this case for even one day, when the law would have allowed counsel to the prisoner; deprived of power to defend himself: needs only the history of the sequel to complete the tyrrany of the act of which we have given the prelude. Parkins was of course convicted, and executed the following day, but the sentence of his lordship, should be appended to make the tragedy complete, which was as follows: "That you go back to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, where you shall be hanged up by the neck, and cut down alive; your body shall be ript open; your privy member be cut off; your bowels taken out, and burnt before your face; your hands shall be severed from your body, to be divided into four quarters and your head and quarters to be at the disposal of the King." The mind that could utter this sentence, surely needed some relief at its close, &c. This was doubtless obtained by his most devout and pious conclusion; "and may the Lord have mercy upon your soul." We have given this extract from the trial of a case under another government, and another system of administering the criminal law, to show the striking contrast between it, and the system under a constitutionally free government; and while, even in England, now, more liberal views and practice obtains, the same humanity in this respect does not exist, as with us. A liberal view of construction given to our own constitution, is, that the prisoner is not only allowed counsel, but when he is poor and unable to provide counsel for himself, it is the duty of the court to designate appropriate counsel for him, to be paid by the gov ernment. Such counsel are not at liberty to decline the duty, but are bound to put forth their best exertions of professional skill to that end, and are bound by all the obligations of duty to their clients, as is required in any other case. This provision, in general and undefined terms, leaves the amount of punishment, much the subject of discretion by the courts; but statutes, enacted under the spirit of these provisions are to be found, not only passed by the national legislature, but also by the legislatures of the states, which fix and limit the amount of punishment that may be inflicted, for nearly each and every offence known to the law to be offences. These provisions would hardly seem to be necessary in a free government, since it is scarcely possible, that any department of such a government should authorize or justify conduct of judges whose action should be ranked as worthy such terms as we have applied to the English judges. They were doubtless adopted by us as an admonition, as well as caution to all departments of government, against such violent proceedings as had taken place in England in the arbitrary reigns of some of the Stuarts. a "In those times, demand of excessive bail was often made against persons who were odious to the court, and its favorites; and on failing to procure it, were committed to prison. Enormous fines and amercements were also sometimes. imposed, and cruel and vindictive punishments inflicted."b Blackstone also informs us, "that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the twelve tables of the Decemviri, were full of cruel punishments. The Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished. Under the Emperor's, severe laws were revived, and then the empire fell." c While even some of the states of the union, to their disgrace be it said, still continue those disgraceful institutions, the whipping post, the pillory and the stocks; the progress of public sentiment, and the advancing and more gentle and benign influences of the christian religion, are rapidly creating and working out a more humane spirit, in regard to public punishments; and these instruments are now viewed, not only as "cruel and unusual," but as absolutely barbarous. a 2 Lloyd's Debate, 345. The right of the people peaceably to assemble and to petition the government for a redress of grievances, is a necessary result of the right of being a free citizen. It is a simple, primitive and natural right. a "It is a right, (says Judge Story) which would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structure and institutions."b It is impossible that it should be practically denied, until the spirit of liberty had wholly disappeared; and the people had become so servile and debased, as to be unfit to exercise any of the privileges of freemen. "But it has not been thought unimportant to protect this right by statutory enactments, even in England, and indeed it will be remembered, that one of the most memorable attempts to crush out the liberty of the subject, in that country, made the right of petition the point of attack; and collected for its contemplated victims, the chief officers in the Episcopal hierarchy. The trial and acquittal of the seven bishops under James II, constituted one of the decisive battles in English constitutional history; and the right which was then vindicated, is a 'sacred right,' which, in difficult times, shows itself in its full magnitude; frequently serves as a safety valve, if judiciously treated by the recipients; and may give to the representatives, or other bodies, the most valuable information. It may right many a wrong, and the deprivation of it, would at once be felt by every freeman as a degradation." c But despotism is the same in all human governments or institutions, where power is unrestrained. This right of petition was resisted even in our own republican form of government in the congress of the United States, when offered by the friends of freedom on the subject of the slave trade; of the fugitive slave law and of slavery; and to the struggles in that body upon these sub jects, we may indirectly trace one of the leading causes of the lat rebellion, by that portion of the states, with whom the institution of slavery was a favored institution. d The history of this strug gle belongs not to this work. It is only referred to, as being illus a Cooley on Const. Limits, 349. 5 Story on Const. § 1894. c Cooley, 349. d Benton's Abr of Debates, Vol. 2, 57-60, 182-188, 436-444; Vol 12, 660-679, 705-743; Vol. 13, 5-28, 266-280, 557-562. |