private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers. § 934. The other article in declaring, that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state or district, wherein the crime shall have been committed, (which district shall be previously ascertained by law,) and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes. The trial is always public; the witnesses are sworn, and give in their testimony (at least in capital cases) in the presence of the accused; the nature and cause of the accusation is accurately laid down in the indictment; and the trial is at once speedy, impartial, and in the district of the offence. Without in any measure impugning the propriety of these provisions, it may be suggested, that there seems to have been an undue solicitude to introduce into the constitution some of the general guards and proceedings of the common law in criminal trials, (truly admirable in themselves) without sufficiently adverting to the consideration, that unless the whole system is incorporated, and especially the law of evidence, a corrupt legislature, or a debased and servile people, may ren der the whole little more, than a solemn pageantry. If, on the other hand, the people are enlightened, and honest, and zealous in defence of their rights and liberties, it will be impossible to surprise them into a surrender of a single valuable appendage of the trial by jury. § 935. The remaining clauses are of more direct significance, and necessity. The accused is entitled to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel. A very short review of the state of the common law, on these points, will put their propriety beyond question. In the first place, it was an anciently and commonly received practice, derived from the civil law, and which Mr. Justice Blackstone says, in his day, still obtained in France, though since the revolution it has been swept away, not to suffer the party accused in capital cases to exculpate himself by the testimony of any witnesses. Of this practice the courts grew so heartily ashamed from its unreasonable and oppressive character, that another practice was gradually introduced, of examining witnesses for the accused, but not upon oath; the consequence of which was, that the jury gave less credit to this latter evidence, than to that produced by the government. Sir Edward Coke denounced the practice as tyrannical and unjust; and contended, that, in criminal cases, the party accused was entitled to have witnesses sworn for him. The house of commons, soon after the accession of the house of Stuart to the throne of England, insisted, in a particular bill, then pending, and, against the efforts both of the crown and the house of lords, carried a clause affirming the right, in cases tried under that act, of witnesses being sworn for, as well as against, the accused. By the statute of 7 Will. 3, ch. 3, the same measure of justice was established throughout the realm, in cases of treason; and afterwards, in the reign of Queen Anne, the like rule was extended to all cases of treason and felony. The right seems never to have been doubted, or denied, in cases of mere misdemeanors. For what causes, and upon what grounds this distinction was maintained, or even excused, it is impossible to assign any satisfactory, or even plausible reasoning. Surely, a man's life must be of infinitely more value, than any subordinate punishment; and if he might protect himself against the latter by proofs of his innocence, there would seem to be irresistible reasons for permitting him to do the same in capital offences. The common suggestion has been, that in capital cases no man could, or rather ought, to be convicted, unless upon evidence so conclusive and satisfactory, as to be above contradiction or doubt. But who can say, whether it be in any case so high, until all the proofs in favour, as well as against, the party have been heard? Witnesses for the government may swear falsely, and directly to the matter in charge; and, until opposing testimony is heard, there may not be the slightest ground to doubt its truth; and yet, when such is heard, it may be incontestible, that it is wholly unworthy of belief. The real fact seems to be, that the practice was early adopted into the criminal law in capital cases, in which the crown was supposed to take a peculiar interest, in base subserviency to the wishes of the latter. It is a reproach to the criminal jurisprudence of England, which the state trials, antecedently to the revolution of 1688, but too strongly sustain. They are crimsoned with the blood of persons, who were condemned to death, not only against law, but against the clearest rules of evidence. § 936. Another anomaly in the common law is, that in capital cases the prisoner is not, upon his trial upon the general issue, entitled to have counsel, unless some matter of law shall arise, proper to be debated. That is, in other words, that he shall not have the benefit of the talents and assistance of counsel in examining the witnesses, or making his defence before the jury. Mr. Justice Blackstone, with all his habitual reverence for the institutions of English jurisprudence, as they actually exist, speaks out upon this subject with the free spirit of a patriot and a jurist. This, he says, is "a rule, which, however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see, that the proceedings against him are legal, and strictly regular, seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which is yet allowed him in prosecutions for every petty trespass." The defect has indeed been cured in England in cases of treason; but it still remains unprovided for in all other cases, to (what one can hardly help deeming) the discredit of the free genius of the English constitution. 937. The wisdom of both of these provisions is, therefore, manifest, since they make matter of constitutional right, what the common law had left in a most imperfect and questionable state. The right to have witnesses sworn, and counsel employed for the prisoner, are scarcely less important privileges, than the right of a trial by jury. The omission of them in the constitution is a matter of surprise; and their present incorporation is matter of honest congratulation among all the friends of rational liberty. |