a witness subsequently deceased; that is, if the accused on one trial is confronted by a witness duly sworn and properly crossexamined, and by reason of the failure of the jury to agree or in case a verdict of guilty has been set aside and a new trial granted, the accused has again been put on trial under the same indictment and the witness testifying on the former trial is dead (or perhaps if he has gone beyond the reach of a subpœna) those who heard his evidence on the former trial may testify what it was and thus make it available against the accused. In such case the accused has in fact once been confronted with the witness who has been required to testify under oath and been subjected to a cross-examination, and there is no good reason why the prosecution should be deprived of the benefit of such testimony by the accident of death or by other casualty not due to any fault or negligence on its part (Mattox v. United States).

238. Compulsory Process for Witnesses.

By Amendment VI and similar provisions in the state constitutions the accused has the privilege of compulsory process for obtaining witnesses in his favor, that is, to have the machinery of the law employed in his behalf, as it may be employed in behalf of the prosecution, for the purpose of bringing witnesses into court and compelling them to testify. There is nothing exceptional, however, in this requirement, for in all cases tried in a judicial tribunal the parties are generally entitled to have compulsory process for securing the attendance and testimony of witnesses. In civil cases the party desiring the attendance of a witness may be compelled to pay or tender his legal fees, and perhaps in the absence of statutory provision this is true also as to the accused in a criminal prosecution, but it is generally provided by statute in the interest of justice that witnesses may be subpoenaed for the accused at the expense of the county, upon approval by the court, so that the accused in a proper case may secure the attendance of witnesses in his behalf without advancing or tendering their fees.

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239. Right to Assistance of Counsel.

327

The guaranty of the right of the accused to the assistance of counsel in making his defence, found in Amendment VI, and in the state constitutions, is intended as an assurance against the recognition in the courts of a practice which at one time prevailed in the criminal courts of England by which a person put on trial for treason or felony was not allowed to be represented by counsel in his behalf. The general rules of procedure in common-law courts allow in civil cases and in prosecutions for lesser crimes that a defendant may have the assistance of counsel if he sees fit, and the exception in prosecutions for treason or felony was unreasonable.

The constitutional right of the accused to be represented by counsel does not necessarily involve the employment of counsel for him at the expense of the state; but it is usually provided by statute that if the accused is unable by reason of poverty to secure the assistance of an attorney such assistance shall be furnished at the state's expense.

240. Excessive Bail; Cruel and Unusual Punishments. One of the beneficent rules of criminal procedure in courts of common law is that a person accused of and arrested for a crime but not yet proven guilty in a judicial trial shall not, save in cases of the gravest character, be deprived of his liberty while awaiting trial, provided he can give reasonable assurance that he will appear when his case is brought on for trial and submit to the punishment imposed, should he be found guilty; and he is allowed to give this assurance by the execution of a bond with a money penalty signed by persons who are financially responsible and who undertake that he shall be present when required, and submit to the punishment imposed. The term "bail" is in common parlance used indiscriminately to indicate either the bond which is furnished or the persons who bind themselves under penalty to see that the accused appears when required. In prosecutions for the graver crimes the accused must be arrested and brought before the court or

voluntarily appear and subject himself to arrest; the court cannot proceed if the prisoner by escaping either before or after arrest prevents the prosecution from having him actually in the presence of the court. Therefore, release on bail after arrest may properly be refused in cases of treason or murder or other crime which may be punished capitally, for it is not to be supposed that any pecuniary consideration or any consideration for bondsmen would be adequate to restrain the escape of one who feared a conviction that would result in the loss of his life. In some state constitutions there are specific provisions as to the cases in which bail may be allowed, but in the absence of such specific provisions it is to be allowed in the general discretion of the court, subject to such statutory regulations as may have been adopted. Release on bail is the rule and the refusal of bail is the exception; but the amount of bail, that is, the penalty to be fixed in the bail bond and exacted from the sureties in case the accused does not appear for trial or render himself for punishment in case he is found guilty, is to be fixed by the judge or court. The accused who has been released on bail is supposed to be in the custody of or under the supervision of his sureties, who are authorized to surrender him to the proper officers in case they wish to relieve themselves from further responsibility. The provision of Amendment VIII, that excessive bail shall not be required, is by implication a direction that bail shall not be refused in a proper case; but it is directory rather than mandatory, for there must be authority somewhere to determine whether the charge is one of such nature that bail should not be allowed, or if bail is allowed the amount of bail which should be required.

It is usually provided that even after conviction, save in cases where bail may properly be denied on account of the nature of the crime, the accused may be released on bail pending an appeal from his conviction to the proper appellate court.

Amendment VIII also prohibits the infliction of cruel and unusual punishments. The common law as administered in England in earlier times authorized barbarous punishments such as being drawn and quartered or maimed or branded or

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329 disfigured; and while the death penalty for very grave crimes, such as treason and murder, has been retained, the infliction of such penalty in any barbarous or unusual manner would be in violation of the guaranties of the federal and state constitutions. Hanging as a means of inflicting the death penalty has been continuously practised as a proper method, and perhaps decapitation would not be an improper method, although it is unusual. Execution by electricity has been held not to be such a cruel method of inflicting capital punishment as to be open to constitutional objection (In re Kemmler). Whipping as a punishment for certain offences is authorized by the laws in some of the states. It may be announced as a safe rule that whatever forms of punishment were usual at the time of the adoption of the state constitutions would still be authorized.

241. Writ of Habeas Corpus.

A legal remedy against unlawful deprivation of personal liberty which is peculiarly applicable as to criminal prosecutions, although it is not expressly limited to such cases, is the writ of habeas corpus, which is granted by a court or judge on an application under oath alleging that some person named is illegally imprisoned or restrained of his liberty, and asking that the person exercising such imprisonment or restraint be required to come before the court or judge to show under what authority his power is being exercised. If the person against whom the proceeding is brought can show lawful authority, as where a parent is restraining his child, or a guardian his ward, or where an officer is imprisoning one accused or convicted of crime under legal process of arrest or by way of punishment lawfully imposed, then the proceeding will be dismissed; but if no lawful authority can be shown for the imprisonment or restraint, the court or judge hearing the case may order the person found to be illegally restrained set at liberty.

As applicable to criminal prosecutions, the proceeding by habeas corpus enables the court or judge before whom it is brought to inquire into the legality of the arrest of a person

complaining of unlawful detention. If the accused has been refused bail, a proper method of securing the release on bail, if the offence is a bailable one, is by use of this writ. But the proceeding is not a method for revising or reviewing the action of the court which has jurisdiction to hold the case for trial, or for freeing him from restraint under arrest or commitment for an offence charged so long as the court is proceeding lawfully and without violation of constitutional guaranties.

As a general rule one court will not by writ of habeas corpus interfere with restraint or imprisonment by virtue of the authority of another court; and the fact that the federal courts while acting within the scope of their authority are superior to the state courts, and are given ultimate power to determine the extent of their authority, renders it impossible for a state court to exercise jurisdiction by writ of habeas corpus to determine the legality of imprisonment or restraint under the authority of a federal court (Tarble's Case). One who is unlawfully impris oned or restrained under the pretended authority of a federal court is not without redress, but he should seek it by application to a federal court or judge. On the other hand the federal judiciary in affording the protection guaranteed in the federal constitution as against state authority in particular classes of cases has the power to inquire into the legality of the proceed. ings of a state court if it is contended that under such authority a person is being deprived of some right guaranteed to him by the federal constitution. Therefore, a federal court or judge may in a habeas corpus proceeding determine the validity of proceedings under the authority of a state court (In re Neagle). But as the person who is unlawfully proceeded against in a state court has usually other remedies for the protection of his rights under the federal constitution, such as an appeal to the highest court of the state, and on denial there, an appeal to the Supreme Court of the United States, the federal courts will interfere by habeas corpus with proceedings under the authority of a state court only in a case of peculiar urgency, and will usually leave the complaining party to his remedy by appeal (Whitten v. Tomlinson).