The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-05-24


decisioa be made aud declared againft him on
the law siiiing in his cafe, and alto, that flch
council Mould exercife their profeaonal rights
in making his defence, according TO the known
and eftabhhcd laws and uiages Of the nation,
free from any arbitrary controui or reitrittion
whatever.
Secondly, that in the trial of Fries for treafon,
the Judge did, by delivering an opinion in wri-
ting on the law arihng in the cafe, before coun-
Eel were permitted to be heard in his defence,
efie9nally deprive the defendant CT any benefit
from the afIiRance of council.
THRILL, that he mpofed the council
engaged for the defendant, arbitrary retricti-
ons and controul, in the exercife of their pre-
fefiiona rights, unknown to, and unauthorized
BY the laws ard uiages of the nation, which
compelled them to relinquiih the defence OF the
prifoncr.
Fontliy, / will then iuGft that this conduct
was filch aagraut violation of his duty, rs
could only fpring from corrupt motives, and
n difpotiton to opprefs thofe who became the
otiects of his recruitment.
With regard to the irft petition, that council
ought to be permitted to be heard for defen
dan. before deci6on fioud be declared againh
him and alto that the counfrl ought TO be
protected in the exercife OF their profeiionsl
rights, according to the ufages and practice of
courts, it appearsto me fubitantially Imported
by the constitutional proviGon already noticed,
A icCuIillC 10 tuS duiitduSS Vi Sou"-
fr, end 20 be necenary cotieQucnce OF that
proviiion; and enental, in order to give it eff
feet. For in the hrh place, as to the law, of
what ufc would the afliltance of council be to
the defendant, ifa decilion of the law ariig in
his cafe ko,:!d be deliberately made up by the
court. committed to writing to give it more TO-
Flemnity and effect, and delivered, or made
known, before fuch council were permitted to
be heard in his defence? What hopes could
the council entertain of being able to convince
a court, that IN opinion, thus deliberately for
med, and fo!emnly made known, was incorrect
and ought not to have been given? Surely IT
the right to the afIifance of council, fecured to
a defendant, means any thing, it mutt mean
| that he Ghould have an opportunity through his
council, to make his cafe known TO the court,
l to explain the law arfng thereon, and fhew,
as far as it could be done, that according to the
true contribution of the law applying to his cafe,
<pF'under which he is charged, he is not fubject
TO its penalties; before their opinion be declar-
ed on the fnbe6t, while the mind of the court
is unbiafed, open to conviction, and capable
of duly weighing the arguments that may be
advanced on either fide. But when an opinion
is deliberately declared, or made known, againft
Il defendant before he is permitted to be heard
by council, his cafe is prejudged, the character
of the court is committed in very great degree
TO fupport iuch opinion, the arguments of
(counfel cannot be expected to be heard by fuch
to prove fuch opinion TO be erroneous and un-
der fuch circumstances, the aid of council is a
mere name without benefit form without
G,bnanCe. But again, if fuch connfcl were
iubje9 to the arbitrary controul and retri6ton
of a court, of every capricious and irritable
Judge If they were not protected in the per-
Torrance of their profe 1ional duties, 70 long
as they a6e,i within the laws of their country
and the known ufages and practice of courts,
of what ufe wOald their afIiftance be to the ac-
cufcd, or what fubftantial aid could they afford
kbim in making his defence The council
(culd have rule to direct them in ihapns
eeir clients defence. When they had prepar.
e8sto examine his caufe in the manner hereto
fore nfual in courts, and upon grounds, which
they conceived NOT likelyto efab.h his inno-
cence and procure his acquittal, they might
be Popped at the very treAihold of the defence,
furprifed with new and unheard of mode of
of proceeding prefented with a digefted and
formal opinion upon the very points they in
ended to conte0: and informed that in the re-
marks they might be permitted to make TO the
court, to thew that fuch opinion was not cor
rect, they mutt oonfne tlemielves in their en-
beavers to eftahiilh the doctrine they might adj
vance, TO the producing of authorities of
certain defcripton and mutt not extend their
fearches after deci6ons, on 6Inilar cafes, be-
pnd certain prefcribed limits, as TO time and
kind of decifions. Under fuch circumltan-
IS no cOuniei could render any lubttantI3l fer
&C 70 the accufed none would be found to
bnit to the tyranny of fuch practice.
Further, it is conceived an universal rule of
Eonfruetion, that when right is fecured to a.
w Perfon, by a law, the means of acquiring
he benefit of that right thereby alto fecur-
d to him. The contribution fecures TO the de-
-rdart in all criminal cafes the aililtance of
ounfe in bis defence the only means by
ghch the benefits of that right can be obtain
by fuch defendant, i. is conceived, mutt be,
permitting council TO be heard in his behalf,
fore his cafe is decided againf him, and by
Io.cGting fuch council in the due performance
f their profefiional duties. Thefe rights are
ecured TO council for the benefit Of thofe for
Fhom they are concerned; and whole interefts
hey advocate and not for their own advan-
lge. And here it may be proper TO obferve,
BAT though council may be confdered in fome
fpcGs as officers CT the court, and in GER
lin degree fibie6t totheir controul and direei-
D /; yet, it is certain, while they ACT within
ie IiDe of their duty, and the known fphere of
ler action as council, their rights are as f1cred
;hofe Of the court; and they are, in perform
- = I'm !. A.