The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-08-23
INSTRUMENTATION.
Protest Against the Proposed Adolf.
ton Of q Constitutional Safeguard.

Protest Az Ainst the Proposed AbOlts
ttcp OF q Constitutional safeguard.
| - r. c.. e. A.
TIE Ip,IVh or ihh ouNno"
Mchssihe ie,. ., AuA ,',. ,,,s.
my .no oVns.,.u'rohai provisio" asan LIT,
.,' si ,.,is s.,,s.
pro'vke uissusn' vii.Iesn ,,, ,o,o"
,ne INES 0! Una, OF Irvlcsso, Wso
~ n's 1880 vi n'ue'o ASsso
Wishores theor,es on .hIs suoJee. nave
ior sonne u'ine oeen ssnins vosue, iafsey
III consequence vi ,he nioi,eIe hoo anu
CONSERVATISM OF niefnoers Oh the par' WIZ
w iio. appieoi. d., .ow easy =. 20 !" 49,
impor,ant vohstuu.lohal cnanses' so,"e-
~. IT, ~ a,..,a,,. ,n.,,,,,s,
w. uanse a na ~, az" ,!,o., e,,s,,',
,'s ~ sun W We 'he y. ~. .o,' .n
~. ~ ~ oViio''' s,,, -
.ons yus WI. MelIvaine, ioiio"'"s if'
ieeso' "is"oie' aSsei'' '"a.
There 10 nothing very sacred In this con-
Nhutionai provision nor 10 IL very ancient
II does not date from Magma ch"ta nor
other great puiwark OF bnshsh priheip'es,
Students OF English legal history Will.
think. easily convince themselves that
the contrary s the fact. They Will re.
member that English legal processes and
procedure were never arbitrary or i'm
provised. but followed prescribed formu-
las. We know how sometimes the ancient
lawyers were baffled when situation
arose where no existing writ or process
was appropriate. The adaptation Of old
methods or the invention Of new onos was
then a matter OF extreme difficulty. IL
there had been Mt common law any proc
ess by which testimony could @ dragged
from the accused there would certainly
be a record OF IL In the reports. but so far
were the tribunals from being able to
e&tort their testimony that they did not
for a long time even have the machinery
TO compel from the accused the prelim-
mary plea of guilty or not guilty. Nell
Their Professor Wigmore nor Mr.. Nell
va!ne has produced evidence OF his his
torical contention.
The extension of royal authority under
the Tudors and Stuarts made Il neces-
sary for them to devise, especially In po-
liticd cases. a weapon by which the tes
timony of the accused could be COM
PEELED. They found II In the civilian prac-
tioe. and this flourished exceedingly until
the Rebellion. Their ruthless disregard
Of common law procedure was one OF the
causes of the Rebellion, for IL arrayed
against the Government all the common
lawyers. who formed the strongest ele-
ment In Parliament. After the revolu-
ton OF 1858 no more la heard OF the COM
pulsofy INSTRUMENTATION. When Mr..
Mcllvaine speaks OF the doctrine" of
privilege as being modern he Is right. In
ancient times there was no common law
doctrine OF privilege. There was either
legal maohinery by which mans liberties
could be invaded or there was not. IL
no such machinery existed his liberty was
secure and lawyers did not philosophizc
about II.
SO much FOR the history OF the privi-
lege. For the policy there was never
more need OF It's protection than now
indeed the example given by Mr.. Nell
a,ie vi 'ne ual.5 pracuce OF evasion oy
pun. vli'oiais vi this cohstitutionei saie-
s, 10 pruoI enough OF this. DOCS ne
,,llnk ,na' our district attorneys ana po-
nee oi'ciais are persons 10 whom can he
' sa'ey i",ruseu tne immense powers
Wnlcn ne proposes TO give! Their zeal
aItnou 1,t u, the cause OF puplc oruer ana
.'ioIals, 10 no iess uanserous 10 the
cohlthuhlty IMAM that OF the shady law
yers Oh whonl ne speaks. lie repeats the
e." wv, aIsulheht that the only erect
VI '",s P!'Nhese ~ 10 sniein the dlshon-
est mat can ne SAID also OF other con-
s.i'utIoha, saiesuarus, such as me right
vi 'ne nun iuuai 10 freedom from search
s s,' selAuIe OF ms DOCKS ana papers, The
supreme court OF tne United states had
sonetnIns 10 say ABOUT this analogous
p'lvhese'
The tendency OF those who executs the
criminal laws Of the country to obtain con-
viction by means OF unlawful seizure and
enforced confessions. the latter often OBJ
.sIheu aVer suoleetins accused persons TO
the unwarranted practice destructive of