The Safeguards of the Sixth Amendment

IBERTY CAN NOT LONG EXIST under any government that is not effectively forbidden to take unfair advantages of an accused. The controls of government are always more difficult than government controls. Government powers must be divided and subdivided and limited in order that citizens may have safety and happiness, which is the primary end of all governments. The Fifth, Sixth and Eighth Amendments of the federal Bill of Rights were designed to seize the heavy hands of federal power, to catalogue and to put beyond the reach of government the most essential rights of those accused by the federal government.

The rights shielded by the Bill of Rights are readily understood by those familiar with the trials of English and American and other martyrs to human liberty and dignity such as John Lilburne, Algernon Sidney, Sir Henry Vane, Lord Russell, William Penn, Peter Zenger and the Man of Galilee. To many others they are taken for granted or depreciated. The Bill of Rights does not purport to create or establish rights. It shields pre-existing rights. These rights are the gift of God not governments. Each separate provision is a little foxhole of liberty ground into the hard cold face of history by helpless men in an effort to shield their naked bodies from the lash of tyrants.

In order to preserve liberty, we must know its history, analyze it, find its roots and sacrifice to retain it. The arithmetician proves his multiplication by division, and his subtraction by addition. Those who love liberty and wish to preserve it should carefully observe the methods used by those who wish to suppress it. Every liberty catalogued in the federal Bill of Rights could be the subject of a long historical commentary showing that each in its turn has been attacked and suppressed by those who have wanted to exercise unrestrained power.

The Sixth Amendment preserves the rights of an accused: (1) to a speedy and public trial; (2) by an impartial jury of the area wherein the crime shall have been committed; (3) to be informed of the nature and cause of the accusation; (4) to be confronted with the witnesses against him; (5) to have compulsory process for bringing his witnesses to court, and (6) to have the assistance of counsel for his defense.

The history of each of these safeguards is an appendix to the history of despotism. Each is the unwanted child of tyranny. As one reviews them history seems to pass in review. We are reminded of years spent in dungeons by martyrs to our liberty; of secret trials by servile judges, or partial juries sometimes called from afar and often called from the very household of the tyrant who headed the state; of those accused being put on trial without being informed as to the nature and cause of the accusation against them; of whispered and groundless gossip that was often the cause of the accusation; of witnesses for the accused frightened away or intimidated, leaving the accused helpless and devoid of means to compel their attendance; of a friendless accused trying to defend himself against a trained tool of arbitrary power before a judge whose daily bread depended upon the smiles of his sovereign without the assistance of counsel for his defense.

For brief illustrative treatment, let us consider the command of the Sixth Amendment that all trials of an accused be by an impartial jury: That right is often sneered at now. Yet every great constitutional document from Magna Charta to the federal Bill of Rights reaffirmed the right of the people to be tried by impartial juries of their peers. A principal cause of the Puritan Revolution and the Glorious Revolution in England, and of the American Revolution was that those in power had poisoned the streams of justice. The Declaration of Independence indicted George III

History teaches that essential justice may be obtained between man and man under almost any judicial system. The stream of justice runs clear in Russia in cases between private parties. It is in cases between governments and men where a helpless accused cries for impartial judges and impartial juries, both in Russia and in America.

The very first step toward despotism is to establish courts that can be rigged and juries that can be stacked by those in power to effectuate their will and policies, which they always affirm to be "best for the country."

One jury may give an unjust verdict, but since jurors are drawn at random from the body of the people, unjust verdicts cannot become a habit. We still hear an accused put himself "on the country." That means that he puts his case and fate in the hands of a jury. Jurors were justly known to the common law as "the country." A jury represents country not government. A jury judges facts with the feelings of men who must live under government not with the impatience and passion of those who seek to administer government as if they own it. Impartial juries are essential to freedom, just as partial judges or juries are essentials to despotism.

The other safeguards of the Sixth Amendment attained constitutional status in America long before the federal Bill of Rights. The Sixth Amendment, like practically all of the other provisions of the federal Bill of Rights was written by George Mason, neighbor and mentor of George Washington in the last days of May 1776, more than a month before the Declaration of Independence. It was embodied, with few changes, in the official Virginia Declaration of Rights adopted on June 12, 1776, three weeks before the Declaration of Independence. As originally written it embodied in its paragraph 10 every provision of the Sixth Amendment except that relating to assistance by counsel.

Mason proposed a Bill of Rights in the Federal Constitutional Convention of 1787. The rejection of his proposal by the unanimous votes of the states represented embittered him and his bitterness embittered others against him and thus the one who preserved for us the fruits of martyrdoms became a martyr himself in the same cause.

A few untold details as to the genesis of the Sixth Amendment, not heretofore revealed, may interest someone. The original of George Washington's famous letter to James Madison, dated October 10, 1787, recently uncovered in New England and not yet published, differs materially from the Letter Book copy which is the only one ever published. When it is published and when the Jasper Yeates Notes of Debates in the Pennsylvania Ratifying Convention, recently uncovered, are published it will appear, in those new lights that Mason prepared essential parts of the draft of a Bill of Rights proposed by a minority in the Pennsylvania Ratifying Convention a few weeks after the Federal Convention adjourned. Those provisions shielding an accused from the crushing power of the new and untried government were written in the same words used by Mason in Williamsburg in May, 1776.

After Mason returned to Virginia he was chosen a delegate to the Virginia Ratifying Convention. Early in that Convention he was circulating a proposed federal Bill of Rights which was subsequently adopted with slight changes for proposal to the First Congress by the Virginia Ratifying Convention in late June 1788. Copies of Mason's proposals were sent to New York on June 9, 1788, and to North Carolina and to Rhode Island also. The conventions of all four states adopted Mason's draft with only slight changes. (The New York Historical Society recently acquired Mason's original letter of transmittal of the copy which became the basis for New York's proposals. The copy sent by Mason to General John Lamb with the letter was also discovered in the Society Archives only recently.)*

That in all capital or criminal Prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for Evidence and be admitted counsel in his Favor, and to a fair and speedy Trial by an impartial Jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the Government of the land and naval Forces in Time of actual war, Invasion or Rebellion) nor can he be compelled to give Evidence against himself.

Mason's draft of proposals with which the First Congress was bombarded by Virginia, New York, North Carolina and Rhode Island in 1789 became the matrix of the federal Bill of Rights adopted on December 15, 1791. Every element of the Sixth Amendment was copied almost verbatim from Mason's 8th proposal. They constitute an iron curtain between the liberty of the individual and the arbitrary power of rulers acting in the name of the state.