Front Page Titles (by Subject) § 38.: Accused entitled to counsel.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1
§ 38.: Accused entitled to counsel.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
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- Preface to the Second Edition.
- State and Federal Control of Persons and Property. Vol. I.
- Chapter I.: Scope of the Government Control and Regulation of Personal Rights.
- § 1.: Police Power—defined and Explained.—
- § 2.: The Legal Limitations Upon Police Power.—
- § 3.: Construction of Constitutional Limitations.—
- § 4.: The Principal Constitutional Limitations.—
- § 5.: Table of Private Rights.—
- Chapter II.: Government Regulation of Personal Security.
- § 10.: Security to Life.—
- § 11.: Capital Punishment, When Cruel and Unusual.—
- § 12.: Security to Limb and Body—general Statement.—
- § 13.: Corporal Punishment—when a Cruel and Unusual Punishment.—
- § 14.: Personal Chastisement In Certain Relations.—
- § 15.: Battery In Self-defense.—
- § 16.: Abortion.—
- § 17.: Compulsory Submission to Surgical and Medical Treatment.—
- § 18.: Security to Health—legalized Nuisance.—
- § 19.: Security to Reputation—privileged Communications. 3 —
- § 20.: Privilege of Legislators.—
- § 21.: Privilege In Judicial Proceedings.—
- § 22.: Criticism of Officers and Candidates For Office.—
- § 23.: Publications Through the Press.—
- § 24.: Security to Reputation—malicious Prosecution.—
- § 25.: Advice of Counsel, How Far a Defense.—
- Chapter III.: Personal Liberty.
- § 26.: Personal Liberty—how Guaranteed.—
- Chapter IV.: Government Control of Criminal Classes.
- § 27.: The Effect of Crime On the Rights of the Criminal—power of State to Declare What Is a Crime.—
- § 28.: Due Process of Law.—
- § 29.: Bills of Attainder.—
- § 30.: Ex Post Facto Laws.—
- § 31.: Cruel and Unusual Punishment In Forfeiture of Personal Liberty and Rights of Property.—
- § 32.: Preliminary Confinement to Answer For a Crime—commitment of Witnesses.—
- § 33.: What Constitutes a Lawful Arrest.—
- § 34.: Arrests Without a Warrant.—
- § 35.: The Trial of the Accused.—
- § 36.: The Trial Must Be Speedy.—
- § 37.: Trials Must Be Public.—
- § 38.: Accused Entitled to Counsel.—
- § 39.: Indictment By Grand Jury Or By Information.—
- § 40.: The Plea of Defendant.—
- § 41.: Trial By Jury—legal Jeopardy.—
- § 42.: Right of Appeal.—
- § 43.: Imprisonment For Crime—hard Labor—control of Convicts In Prison.—
- § 43 A.: Convict Lease System.—
- Chapter V.: The Control of Dangerous Classes, Otherwise Than By Criminal Prosecution.
- § 44.: Confinement For Infectious and Contagious Diseases.—
- § 45.: The Confinement of the Insane.—
- § 46.: Control of the Insane In the Asylum.—
- § 47.: Punishment of the Criminal Insane.—
- § 48.: Confinement of Habitual Drunkards.—
- § 49.: Police Control of Vagrants.—
- § 50.: Police Regulation of Mendicancy.—
- § 51.: Police Supervision of Habitual Criminals.—
- § 52.: State Control of Minors.—
- Chapter VI.: Regulations of the Rights of Citizenship and Domicile.
- § 53.: Citizenship and Domicile Distinguished.—
- § 54.: Expatriation.—
- § 55.: Naturalization.—
- § 56.: Prohibition of Emigration.—
- § 57.: Compulsory Emigration.—
- § 58.: Prohibition of Immigration.—
- § 59.: The Public Duties of a Citizen.—
- Chapter VII.: State Regulation of Morality and Religion.
- § 60.: Crime and Vice Distinguished—their Relation to Police Power.—
- § 61.: Sumptuary Laws.—
- § 62.: Church and State—historical Synopsis.—
- § 63.: Police Regulation of Religion—constitutional Restrictions.—
- § 64.: State Control of Churches and Congregations.—
- § 65.: Religious Criticism and Blasphemy Distinguished.—
- § 66.: Permissible Limitations Upon Religious Worship.—
- § 67.: Religious Discrimination In Respect to Admissibility of Testimony.—
- § 68.: Sunday Laws.—
- Chapter VIII.: Freedom of Speech and Liberty of the Press.
- § 81.: Police Supervision Prohibited By the Constitutions.—
- Chapter IX.: Regulation of Trades and Occupations.
- § 85.: General Propositions.—
- § 86.: Prohibition As to Certain Classes.—
- § 87.: Police Regulation of Skilled Trades and Learned Professions.—
- § 88.: Regulation of Practice In the Learned Professions.—
- § 89.: Regulation of Sale of Certain Articles of Merchandise.—
- § 90.: Regulations to Prevent Fraud.—
- § 91.: Legal Tender and Regulation of Currency.—
- § 92.: Free Coinage of Silver and the Legal Tender Decisions.—
- § 93.: Legislative Restraint of Importations—protective Tariffs.—
- § 94.: Liberty of Contract, a Constitutional Right.—
- § 95.: Compulsory Formation of Business Relations—common Carriers and Innkeepers Exceptions to the Rule—theaters and Other Places of Amusement.—
- § 96.: Regulation of Prices and Charges.—
- § 97.: Later Cases On Regulating Prices and Charges—regulations Must Be Reasonable—what Is a Reasonable Regulation, a Judicial Question.—
- § 98.: Police Regulation of the Labor Contract.—
- § 99.: Regulation of Wages of Workmen—mode of Measuring Payment—compulsory Insurance and Membership In Benefit Societies—release From Liability For Injuries to Employees.—
- § 100.: Regulation of Wages of Workmen, Continued—time of Payment—medium of Payment—fines and Deductions For Imperfect Work—mechanics’ Lien and Exemption of Wages.—
- § 101.: Prohibition of Employment of Aliens—exportation of Laborers—importation of Alien Laborers Under Contract—chinese Labor—employers Compelling Workmen to Leave Unions.—
- § 102.: Regulating Hours of Labor.—
- § 103.: Regulations of Factories, Mines and Workshops—sweatshops. 1 —
- § 104.: Period of Hiring—breach Or Termination of Labor Contract—compulsory Performance of Labor Contract—requirement of Notice of Discharge—employers Required to Give Statement of Reasons For Discharge.—
- § 105.: Regulations of the Business of Insurance.—
- § 106.: Usury and Interest Laws.—
- § 107.: Prevention of Speculation.—
- § 108.: Prevention of Combinations In Restraint of Trade.—
- § 109.: A Combination to “corner” the Market.—
- § 109a.: Contracts Against Liability For Negligence Prohibited.—
- § 110.: Common Law Prohibition of Combinations In Restraint of Trade Restated.—
- § 111.: Industrial and Corporate Trusts, As Combinations In Restraint of Trade.—
- § 112.: Modern Statutory Legislation Against Trade Combinations, Virtual Monopolies, and Contracts In Restraint of Trade.—
- § 113.: Different Phases of the Application of Anti-trust Statutes—factor’s System—control of Patents—combinations Against Dishonest Debtors—agreements to Sell Only to Regular Dealers—combinations of Employers to Resist Combinations of Employees—departmen
- § 114.: Labor Combinations—trades Unions—strikes.—
- § 115.: Strikes, Continued, and Boycotts.—
- § 116.: Wagering Contracts Prohibited.—
- § 117.: Option Contracts, When Illegal.—
- § 118.: General Prohibition of Contracts On the Ground of Public Policy.—
- § 119.: Licenses.—
- § 120.: Prohibition of Occupations In General. 5 —
- § 121.: Prohibition of Trade In Vice—social Evil, Gambling, Horse-racing.—
- § 122.: Prohibition of Trades For the Prevention of Fraud—adulterations of Goods—harmful Or Dangerous Goods—prohibition of Sale of Oleomargarine.—
- § 123.: Prohibition of Ticket-brokerage—ticket-scalping Prohibited and Punished.—
- § 124.: Prohibition of Sale of Game Out of Season—prohibition of Export of Game.—
- § 125.: Prohibition of the Liquor Trade.—
- § 126.: Police Control of Employments In Respect to Locality. 3 —
- § 127.: Monopolies—general Propositions.—
- § 128.: Monopolies and Exclusive Franchises In the Cases of Railroads, Bridges, Ferries, Street Railways, Gas, Water, Lighting, Telephone and Telegraph Companies.—
- § 129.: Patents and Copyrights, How Far Monopolies.—
- § 130.: When Ordinary Occupations May Be Made Exclusive Monopolies—saloons—banking—insurance—peddling—building and Loan Associations—restriction of Certain Trades to Certain Localities—slaughterhouses—markets.—
- § 131.: National, State and Municipal Monopolies.—
Accused entitled to counsel.—
The State, in all criminal prosecutions, is represented by a solicitor, learned in the law, and unless the accused was likewise represented by legal counsel, he would usually be at the mercy of the court and of the prosecuting attorney. The prosecution might very easily be converted into a persecution. It was one of the most horrible features of the early common law of England, that persons accused of felonies were denied the right of counsel, the very cases in which the aid of counsel was most needed; and it was not until the present century that in England the right of counsel was guaranteed to all persons charged with crime. But in America the constitutional guaranty of the right of counsel in all cases, both criminal and civil, is universal, and this has been the practice back to an early day. Not only is it provided that prisoners are entitled to counsel of their own appointment, but it is now within the power of any judge of a criminal court, and in most States it is held to be his imperative duty, to appoint counsel to defend those who are too poor to employ counsel; and no attorney can refuse to act in that capacity, although he may be excused by the court on the presentation of sufficient reasons.
On the continent of Europe, the prisoner is allowed the aid of counsel during the trial, but until the prosecuting attorney is through with his inquisitorial investigation of the prisoner, and has, by alternately threatening, coaxing, and entrapping the accused into damaging admissions, procured all the attainable evidence for the State, he is denied the privilege of counsel. The counsel gains access to his client when the prosecuting attorney is satisfied that he can get nothing more out of the poor prisoner, who finding himself perhaps for the first time in the clutches of the law, and unable to act or to speak rationally of the charge against him, will make his innocence appear to be a crime. Not so with the English and American law. From the very apprehension of the prisoner, he is entitled to the aid of counsel, and while his admissions, freely and voluntarily made, are proper evidence to establish the charge against him, it is made the duty of all the officers of the law, with whom he may come into contact, to inform him that he need not under any circumstances say anything that might criminate him. Confessions of the accused, procured by promises or threats, are not legal testimony, and cannot be introduced in support of the case for the State.
In 1836, by Stat. 6 and 7 Will. IV., ch. 114. Before this date, English jurists indulged in the pleasing fiction that the judge will be counsel for the prisoner. “It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, undoubtedly, they were, as far as they could be, to prevent undue prejudice, to guard against improper influence being excited against prisoners; but it was impossible for them to go further than this, for they could not suggest the course of defense prisoners ought to pursue; for judges only saw the deposition so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity.” Baron Garrow in a charge to a grand jury, quoted in Cooley Const. Lim. *332, n. 2.
Wayne Co. v. Waller, 60 Pa. St. 99 (35 Am. Rep. 636); Bacon v. Wayne Co., 1 Mich. 461; Vise v. Hamilton Co., 19 Ill. 18.
Commonwealth v. Taylor, 5 Cush. 605; Commonwealth v. Curtis, 97 Mass. 574; Commonwealth v. Sturtivant, 117 Mass. 122; Commonwealth v. Mitchell, 117 Mass. 431; People v. Phillips, 42 N. Y. 200; People v. McMahon, 15 N. Y. 385; State v. Guild, 10 N. J. 163 (18 Am. Dec. 404); Commonwealth v. Harman, 4 Pa. St. 269; State v. Bostick, 4 Harr. 563; Thompson v. Commonwealth, 20 Gratt. 724; State v. Roberts, 1 Dev. 259; State v. Lowhorne, 66 N. C. 538; State v. Vaigneur, 5 Rich. 391; Frain v. State, 40 Ga. 529; State v. Garvey, 28 La. Ann. 955 (26 Am. Rep. 123); Boyd v. State, 2 Humph. 655; Morehead v. State, 9 Humph. 635; Austine v. State, 51 Ill. 236; State v. Brockman, 46 Mo. 566; State v. Staley, 14 Minn. 105.