oner proves that he is poor, and unable to bear the expense himself.35

In United States v. Cooper,se the defendant asked the court to address a letter to various members of Congress, that body being then in session, requesting their attendance as witnesses in his behalf, and in support of his application cited a number of cases sustaining that practice in the State of Pennsylvania. Upon deciding his application, Chase, the presiding justice, said:

"The Constitution gives to every man, charged with an offence, the benefit of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of Congress from the service, or obligations, of a subpoena, in such cases. I will not sign any letter of the kind proposed. If upon service of a subpoena, the members of Congress do not attend, a different question may arise; and it will then be time enough to decide, whether an attachment ought, or ought not, to issue. It is not a necessary consequence of nonattendance, after service of a subpoena, that an attachment will issue. A satisfactory reason may appear to the court, to justify or excuse it."

And to have the Assistance of Counsel for his defence.

This provision, like the preceding one, was never a part of the common law. The history of this clause is interesting and instructive to the student of constitutional history. The privilege of the accused to be represented by counsel on his trial seems to have been adopted at different times in different countries. In the days of the Inquisition the accused was denied the right of counsel. In Spain, in the year 1480, Ferdinand and Isabella directed that counsel should be allowed to all who desired them, and that they should be furnished at the expense of the public to those who could not afford to employ them.87

35 United States v. Kennelly, 5 Bissell, 122, 123.

36 4 Dallas, 317.

37 Lea's Superstition and Force, 469.

The Inquisition was the court or tribunal for examination and punishment of heretics, called, also, the Holy Office. It was fully estab

Early in the eighteenth century similar privileges were granted in Germany. In England prisoners indicted for treason were first allowed counsel in 1696. The following account given by Macaulay is an interesting recital of an important incident in connection with the passage of the bill allowing counsel to the accused in cases of that character:

"The session had scarcely commenced when the Bill for regulating Trials in cases of High Treason was again laid on the table of the Commons. Of the debates which followed nothing is known except one interesting circumstance which has been preserved by tradition. Among those who supported the bill appeared conspicuous a young Whig of high rank, of ample fortune, and of great abilities which had been assiduously improved by study. This was Anthony Ashley Cooper, Lord Ashley, eldest son of the second Earl of Shaftesbury, and grandson of that renowned politician who had, in the days of Charles the Second, been at one time the most unprincipled of ministers, and at another the most unprincipled of demagogues. Ashley had just been returned to Parliament for the borough of Poole, and was in his twentyfifth year. In the course of his speech he faltered, stammered, and seemed to lose the thread of his reasoning. The House, then, as now, indulgent to novices, and then, as now, well aware that, on a first appearance, the hesitation which is the effect of modesty and sensibility is quite as promising a sign as volubility of utterance and ease of manner, encouraged him to proceed. 'How can I, Sir,' said the young orator, recovering himself, 'produce a stronger argument in favor of this bill than my own failure? My fortune, my character, my life are not at stake. I am speaking to an audience whose kindness might well inspire me with courage. And yet, from mere nervousness from mere want of practice in addressing large assemblies, I have lost my recollection; I am unable

lished by Pope Gregory about 1235 A. D., and was most active in Italy, Spain and Portugal and their dependencies. When found guilty and contumacious the culprit was handed over to the secular arm to be dealt with according to the laws of the country. It was suppressed in France in 1772, and in Spain finally in 1834. Standard Dictionary of English Language.

to go on with my argument. How helpless, then, must be a poor man who, never having opened his lips in public, is called upon to reply, without a moment's preparation, to the ablest and most experienced advocates in the kingdom, and whose faculties are paralyzed by the thought that, if he fails to convince his hearers, he will in a few hours die on the gallows, and leave beggary and infamy to those who are dearest to him."

"The bill, so often brought in and so often lost, went through the Commons without a division, and was carried up to the Lords. It soon came back with the long disputed clause altering the constitution of the Court of the Lord High Steward."

738

In the reign of William IV, from 1820 to 1830, Parliament passed an act permitting counsel to represent the accused in cases of felony. The delay on the part of so great, wise and generous a nation as England to grant this most humane and righteous privilege to one on trial for the commission of a crime is incomprehensible to the student of the English constitution and English history. But to the credit, let it be said, of that country, the failure to grant so reasonable a right was long criticized and even bitterly denounced by many of her lawyers, jurists and writers, and to their efforts was largely due the passage of the act which removed so deen a stain

38 Macaulay's History of England, vol. 7, 274-276.

"It may reasonably be suspected," continues Macaulay, "that Ashley's confusion and the ingenious use which he made of it had been carefully premeditated. His speech, however, made a great impression, and probably raised expectations which were not fulfilled. His health was delicate: his taste was refined even to fastidiousness; he soon left politics to men whose bodies and minds were of coarser texture than his own, gave himself up to mere intellectual luxury, lost himself in the mazes of the old Academic philosophy, and aspired to the glory of reviving the old Academic eloquence. His diction, affected and florid, but often singularly beautiful and melodious, fascinated many young enthusiasts. He had not merely disciples, but worshippers. His life was short: but he lived long enough to become the founder of a new sect of English freethinkers, diametrically opposed in opinions and feelings to that sect of freethinkers of which Hobbes was the oracle. During many years the Characteristics continued to be the Gospel of romantic and sentimental unbelievers, while the Gospel of cold-blooded and hardheaded unbelievers was the Leviathan." Macaulay's History of England, vol. 7, 275.

from the English people and so great a blight from English jurisprudence.

It is a satisfaction to the American student to know the provision was inserted in our Federal Constitution as an amendment long before it was passed as an act by the British Parliament.

CHAPTER LV.

SEVENTH AMENDMENT.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

That in the close of the eighteenth century, a convention of as wise and great men as ever met should have framed a written constitution for the government of a great and intelligent nation, and should have purposely denied in that instrument the right of trial by jury in civil cases, seems one of the most surprising things in the history of modern jurisprudence or constitutional government. And the surprise seems the greater, since some of those who refused to write it in the Constitution, assisted in writing it in the Declaration of Independence as one of the reasons why the Colonies should revolt against the King, "that he has deprived us, in many cases, of the benefits of trial by jury." That the Convention purposely denied the people such a right, is shown by its proceedings. It was moved in the Convention that "a trial by jury should be preserved in civil cases." This was unanimously defeated.2 The omission was not, therefore, an accident. It is no wonder the people at once demanded the adoption of an amendment which would correct the error. The wonder is that such a provision was omitted from the original instrument.

The amendment which Mr. Madison introduced in Congress on this subject provided: "But no appeal to such court shall be allowed where the value in controversy shall not amount to $: nor shall any fact triable by jury, according to the course of common law, be otherwise re1 Declaration of Independence.

2 Journal, 736.