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his motion for a new trial, or on writ of error, or the judgment thereon been arrested;1 in any of these cases the accused may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection. But where the legal bar has once attached, the government cannot avoid it by varying the form of the charge in a new accusation; if the first indictment or information were such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached upon the first must constitute a protection against a trial on the second. And if a prisoner is acquitted on some of the counts in an indictment, and convicted on others, and a new trial is granted on his motion, he can only be put upon trial the second time on those counts on which he was before convicted, and is forever discharged from the others.3

Excessive Fines and Cruel and Unusual Punishments.

It is also a constitutional requirement that excessive fines shall not be imposed, nor cruel and unusual punishments inflicted.

Within such bounds as may be prescribed by law, the question what fine shall be imposed is one addressed to the discretion of the court. But it is a discretion to be judicially exercised, and it would be error in law to inflict a punishment clearly excessive.1 A fine should have some reference to the party's ability to pay it.

1 Casborus v. People, 13 Johns. 351. But where the indictment was good, and the judgment was erroneously arrested, the verdict was held to be a bar. State v. Norvell, 2 Yerg. 24. So, if the error was in the judgment, and not in the prior proceedings, if the judgment is reversed, the prisoner must be discharged. Lowenberg v. People, 27 N. Y. 336. But it is competent for the legislature to provide that, on reversing the erroneous judgment in such a case, the court, if the prior proceedings are regular, shall remand the case for the proper sentence. McKee v. People, 32 N. Y. 239.

State v. Cooper, 1 Green. 360; Commonwealth v. Roby, 12 Pick. 504; People v. McGowen, 17 Wend. 386; Price v. State, 19 Ohio, 423; State v. Benham, 7 Conn. 414.

3

Campbell v. State, 9 Yerg. 333; State v. Kittle, 2 Tyler, 471; Morris v. State, 8 S. & M. 762; Esmon v. State, 1 Swan, 14; Guenther v. People, 24 N. Y.

100.

See Barker v. People, 3 Cow. 686. cruel and unusual punishments generally.

See this case, on the subject of
See also Done v. People, 5 Parker,

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By Magna Charta a freeman was not to be amerced for a small fault, but according to the degree of the fault, and for a great crime in proportion to the heinousness of it, saving to him his contenement; and after the same manner a merchant, saving to him his merchandise. And a villein was to be amerced after the same manner, saving to him his wainage. The merciful spirit of these provisions addresses itself to the criminal courts of the American States through the provisions of their constitutions.

It has been decided by the Supreme Court of Connecticut that it was not competent, in the punishment of a common-law offence, to inflict fine and imprisonment without limitation. The precedent it was said, cited by counsel contending for the opposite doctrine, of a punishment for a libel published against the Lord Chancellor Bacon, was deprived of all force of authority by the circumstances attending it; the extravagance of the punishment was clearly referable to the temper of the times. "The common law can never require a fine to the extent of the offender's goods and chattels, or sentence of imprisonment for life. The punishment is both uncertain and unnecessary. It is no more difficult to limit the imprisonment of an atrocious offender to an adequate number of years than to prescribe a limited punishment for minor offences. And when there exists no firmly established practice, and public necessity or convenience does not imperiously demand the principle contended for, it cannot be justified by the common law, as it wants the main ingredients on which that law is founded. Indefinite punishments are fraught with danger, and ought not to be admitted unless the written law should authorize them."1

It is somewhat difficult to determine precisely what is meant by cruel and unusual punishments. Probably a punishment declared by statute for an offence which was punishable in the same way at the common law could not be regarded as cruel or unusual in the constitutional sense. And probably any new statutory offence may be made punishable to the extent permitted by the common law for similar offences. But those degrading punishments which in any State had become obsolete before its existing constitution was adopted, we think may well be held to be forbidden by it as cruel and unusual. We may well doubt the right to establish the whipping-post and the pillory in

1 State v. Danforth, 3 Conn. 115.

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States where they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, had forbidden cruel and unusual punishments. In such a case the public sentiment had condemned them as cruel, and they had not merely become unusual, . but altogether ceased to be inflicted.

A defendant, however, in any case, is entitled to have the precise measure of punishment meted out to him which the law provides, and no other. A different punishment cannot be substituted, on the ground of its being less in severity. Sentence to transportation for a capital offence is void, and the prisoner is entitled to his discharge, because, the error being in the judgment, he cannot be tried again. If, however, the legal punishment consists of two distinct and severable things, -as fine and imprisonment, the imposition of either is legal, and the defendant cannot be heard to complain that the other was not imposed also.2

The Right of Counsel.

Perhaps the most important privilege of the person accused of crime, connected with his trial, is to be defended by counsel. From very early days a class of men, who have made the laws of their country their special study, and who have been accepted for the confidence of the court in their learning and integrity, have been set apart as officers of the court, whose special duty it was to render aid to the parties and the court,3 in the application of the law to legal controversies. These persons, before entering upon their employment, were to take an oath of fidelity to the courts whose officers they were, and to their clients, and it was their special

1 Bourne v. The King, 7 Ad. & Ellis, 58. See also Whitebread v. Queen, 7 Q. B. 582; Rex v. Fletcher, Rus. & Ry. 58. In this case, the court was equally divided on the question, whether the omission, in a sentence to death, of the subsequent directions which the law provided for, rendered the sentence void. See Hartung v. People, 26 N. Y. 167; Elliott v. People, 13 Mich. 365. 2 See Kane v. People, 8 Wend. 203.

In Commonwealth v. Knapp, 9 Pick. 498, the court refused, on the application of the defendant, to assign Mr. Rantoul as his counsel, because, though admitted to the Common Pleas, he was not yet an attorney of the Supreme Court, and that court, therefore, had not the usual control over him; and besides, counsel was to give aid to the court, as well as to the prisoner, and therefore it was proper that a person of more legal experience should be assigned.

4 แ Every countor is chargeable by the oath that he shall do no wrong nor

duty to see that no wrong was done their clients, by means of false or partial witnesses, or through the perversion or misapplication of law by the court. Strangely enough, however, the aid of this profession was denied in the very cases when it was needed most, and it has cost a long struggle, continuing even into the present century, to rid the English criminal law of one of its most horrible features. In civil causes and on charges for misdemeanor, the parties were entitled to the aid of counsel in eliciting the facts and in presenting both the facts and the law to the court and jury; but when the government charged a party with treason or felony, he was denied this privilege.1 Only such falsity, contrary to his knowledge, but shall plead for his client the best he can, according to his understanding." Mirror of Justices, ch. 2, § 5. The oath in Pennsylvania, on the admission of an attorney to the bar, " to behave himself in the office of an attorney, according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause, for lucre or malice," is said, by Mr. Sharswood, to present a comprehensive summary of his duties as a practitioner. Sharswood's Legal Ethics, p. 3. The advocate's oath, in Geneva, was as follows: "I solemnly swear, before Almighty God, to be faithful to the Republic, and to the canton of Geneva; never to depart from the respect due to the tribunals and authorities; never to counsel or maintain a cause which does not appear to be just or equitable, unless it be the defence of an accused person; never to employ, knowingly, for the purpose of maintaining the causes confided to me, any means contrary to truth, and never seek to mislead the judges by any artifice or false statement of facts or law; to abstain from all offensive personality, and to advance no fact contrary to the honor and reputation of the parties, if it be not indispensable to the cause with which I may be charged; not to encourage either the commencement or continuance of a suit from any motives of passion or interest; nor to reject, for any consideration personal to myself, the cause of the weak, the stranger, or the oppressed." In "The Lawyer's Oath, its Obligations, and some of the Duties springing out of them," by D. Bethune Duffield, Esq., a masterly analysis is given of this oath; and he well says of it: "Here you have the creed of an upright and honorable lawyer. The clear, terse, and lofty language in which it is expressed needs no argument to elucidate its principles, no eloquence to enforce its obligations. It has in it the sacred savor of divine inspiration, and sounds almost like a restored reading from Sinai's original, but broken, tablets."

1 When an ignorant person, unaccustomed to public assemblies, and perhaps feeble in body or in intellect, was put on trial on a charge which, whether true or false, might speedily consign him to an ignominious death, with able counsel 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

legal questions as he could suggest was counsel allowed to argue for him; and this is but a poor privilege to one who is himself unlearned in the law, and who, as he cannot fail to perceive the monstrous injustice of the whole proceeding, will be quite likely to accept any perversion of the law that occurs in the course of it as quite regular, because entirely in the spirit that denies him a defence. Only after the Revolution of 1688 was a full defence allowed on trials for treason,2 and not until 1836 was would thereby be prevented from making even the feeble preparations for defence that might otherwise have been within his power. A "trial" under such circumstances would frequently be only a judicial murder. The spirit in which the old law was administered may be judged by the case of Sir William Parkins, tried for high treason before Lord Holt and his associates in 1695, after the statute 7 William III. ch. 3, allowing counsel to prisoners indicted for treason, but one" day before it was to take effect. He prayed to be allowed counsel, and quoted the preamble to the statute, that such allowance was just and reasonable. His prayer was denied, Lord Holt declaring that he must administer the law as he found it, and could not anticipate the operation of an act of Parliament even by a single day. The accused was convicted and executed. See Lieber's Hermeneutics, ch. 4, § 15; Sedgwick on Stat. & Const. Law, 81.

1 Probably few prisoners were learned enough to suggest a question like the following:

On trial of Francis Francia, for high treason, in 1716, Sir Dennis Dutry was called as a juror, and challenged.

"Prisoner. His name is Dennis, and they have given me a panel with barbarous Latin. In my copy of the panel, he is returned by the name of Dyonisius. That is not the same name.

"Sir J. Jekyll, for the crown. to be put into English for him.

He is to have a copy of the panel, but it is not

"Lord Ch. Baron. You offer no cause for challenge.

"Prisoner. I hope I prove his name is returned, in the panel, Dyonisius. "Lord Ch. Baron. It is so, and that is the Latin for Dennis.

"Prisoner. No, it is not: Dennis is a saint in France, and Dyonisius is a saint in Italy. They are two different names, and of different countries. "Lord Ch. Baron. Dyonisius is the Latin for Dennis. If they don't challenge him peremptorily, he must be sworn.”

So the prisoner was compelled to challenge peremptorily. 6 Hargrave's State Trials, 59.

2 See an account of the final passage of this bill in Macaulay's "England," vol. 4, ch. 21. It is surprising, that the effort to extend the same right to all persons accused of felony was so strenuously resisted afterwards, and that, too, notwithstanding the best lawyers in the realm admitted its importance and justice. "I have myself," said Mr. Scarlett, " often seen persons I thought innocent convicted, and the guilty escape, for want of some acute and intelligent counsel to show the bearings of the different circumstances on the conduct and situation of the prisoner." House of Commons' Debates, April 25, 1826. "It has lately been

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