The Kansas herald of freedom., 1859-08-27
ADsfsnss Of The +Modsr' consaiuaon.
LAWRENCE. Aug. %, '59.

LAWRENCE, Aug. Zz, %.
G. W. Brown, Esq, Ed. HERALD OF {
In the last number OF .
your paper notice q criticism on the
Wysndott Constitution, SO calculated to
mislead the public that am induced to
ask of you the favor Of q correction. I
The criticism occurs in an article head {
Cd "The Model Constitution" and, ignor- .
ant as / am of the authorship, ! regret
that you do not require Of persons having
access to your editorial columns, some
guaranty of fidelity to fact, if none is re-
quired Of impartiality of comment
Quoting the clause, mo person shall be
a witness against himself" the writer af-
firms that ''this provision applies to civil
prosecutions as well as criminal" and pro-
ceeds to comment at large upon its as
sumed hardships and sbsurdities.
Now, this Article, like all the others,
was carefully discussed in Convention, and
the lawyers there agreed, unhesitatingly,
in the assurance that the word "prosecu-
tions'' itself, as there used, clearly defined
the exclusively criminal character of all |
cases which could be affected by this sec
ton. To show that the entire text con-
veys the same idea, and that its operation |
is intended to be limited to criminal cases,
l quote the section entire, using italics to |
emphasize its meaning:
Sec. 10. In all prosecutions, the accused
shall be allowed to appear and defend, in
person or by counsel TO demand the na-
ture and cause of the accusation against
him to meet the witnesses face to face,
and to have compulsory process to COM
pei the attendance of witnesses in his be-
half; and speedy public trial BY an i'm
partial jury of the county or district in
which the ofense is alleged to have been
committed. No person shall be witness
against himself, or be twice put IN jeopardy
for the same ofense."
think the language itself clearly shows
that your critics statement is the reverse
of the truth; and that he, in his zeal
sgainst an instrument for the defeat of
which he seems to labor con ansore has
travelled for bis arguments far beyond the
region of fact. This case well exempli-
fes, also, most of the objections to the
Constitution which are so vehemently
urged in your paper and the Democratic
journals generally, in Kansas.
Is it asking too much of journalist,
claiming entire independence of party or
personal feeling, that he shall crilicise
with care and candor a document so i'm.
portant as the proposed fundamental char
ter of State ? or. of a reformer, that he
shall display zeal in defending its pro-
gressive principles, equal to that with
which he searches for and denounces its
faults =?
By giving this letter a place in your
columns, you will oblige. Yours very
truly, M. W.
We give place, cheerfully, to Mr.. WIN
cHELL's defense of the action of the Wy
andott Convention.
The intent of the Convention may be
clear enough to parties who participated
in its discussions, but the people, who
must examine and pass upon this instru.
strument, and the persons who may be
called upon to execute it hereafter, are
not at liberty to take Mr.. Winchsll's
statement as to that intention, unless it ID
so clearly expressed as to remove all am.
biguity.
The Wyandott Constitution is the first
instrument which has struck out the word
criminal, when speaking of the rights ol
the accused in criminal prosecutions
The FIRST sentence Of section 10, of the
Bill Of Rights, is guaranty of certain
rights to persons accused of crime, accord
ing to Mr.. Wirchell, yet the word "crim
inal" is erased, on the plea that the word
! prosecutions" itself, clearly refers tc
criminal cases. We point to the fact thai
other constitutions insert the word Grim.
inal before prosecutions, preferring to uss
word having an unambiguous meaning
rather than series of words which de.
scribe processes, some of which are com
mon to civil as we'll as criminal suits
Mr.. Winchell assumes that the word pros
ecutions refers exclusively to crimina
y cases, because terms follow in the samt
sentence, which refer to criminals, but hi
logic is not conclusive. While there may
> be no doubt about the legal meaning o
the words he italicises, there is seriou
question whether the elision of the worc
criminal does not enlarge the effect of tn,
whole sentence.
Nothing has been gained by the erasur,
Of the word criminal, but possible ambi
guilty and discussion in courts of justice
But should we grant to Mr.. Winchsll tina
the Convention deserve the hearty thank
of future constitutional conventions 70
this model changs, it by no means follow
y that the clause, "No person shall be
witness against himself" refers only t,
criminal cases.
1t will be remembered the Constitution
of Ohio was taken as q basis. Section
> 10 of the Bill of Rights of the Wyandot
Constitution, if drafted from section 10 o
= the Bill of Rights Of the Ohio Constitu
ton, is q material alteration. The frs
clause Of that section, in the Ohio Consti
: tuition, reads as follows: Except in case
Of impeachment, and cases arising in tn,
army and navy, or in the militia when il
actual service in time of war or publi
danger, and in cases of petit larceny snt
other inferior offsnses. no person shall b
held to answer for capital or otherwis,
Infamous crime, unless on presentmeut o
Indictment of grand jury" This i
erased altogether, thus virtually abolish
: ing the grand jury system, and neglsctiui
TO secure to the criminal the rights guar
anteed to him by the Constitution of tn,
United States. II the Convention did no
intend to abolish the grand jury system
a.