Thе relator, George Burgess, has been committed by a magistrate of the county of Ulster in default
The sheriff of Ulster county, in whose custody as the keeper of the common jail the relator is, acting in good faith and under advice which he believes to be correct, refuses to his counsel William D. Brinnier a private interview with him. 'The relator asks for an order allowing such an interview.
The constitution of the state (art. 1, sec. 6) provides that, “ in any trial, in any court whatever, the party accused shall be allowed to appear and defend in рerson and with counsel, as in civil actions.”
In People ex rel. Garling agt. Van Allen et al. (55 N. Y., 31), the provision of the constitution just quoted was held aрplicable to a court-martial.
Perhaps the literal letter of the constitutional provision would be complied witli by allowing to the accused the benefit of counsel upon the “ triаl,” but such a construction would illustrate the truth of that part of the old legal maxim which declares: “ The letter killeth,” and disregard its conclusion, “ while the spirit giveth life.” Undoubtedly the clause of the constitutiоn under consideration was adopted to secure to the accused person all thе benefits which could flow from the ^employment of counsel to conduct his defense; and to give him those it is essential that he should be allowed to consult with his counsel not only during the actual trial, but prior thereto, in order to prepare for his defense. Where a right is conferred by law, everything necessary for its protection is also conferred, although not directly provided for. Thе privilege of the presence of counsel upon the trial would be a poor cоncession to the accused if the right of consultation with such counsel prior to the trial was dеnied. To give life and effect, therefore, to the provision of the constitution under considеration, it must be held to. confer upon the relator every privi
It is said, however, that there is no indictment as yet against the relator, and that, thеrefore, the constitutional provision does not apply. This is also, it seems to me, a narrоw interpretation of the fundamental law. The relator is in jail and adjudged probably guilty of a grave crime. • He has rights even before indictment. He may claim, perhaps, that his detention is illegal; thаt the evidence taken before the magistrate was insufficient, and may desire, through counsel, to obtain a writ of habeas corpus, or some other process to inquire into the legality of his imprisonment. He needs for all this counsel competent to advise, and a private interview for consultation. Is he to be deprived of this because the letter of the fundamental law does not give it ? Or shall the spirit which procured the adoption of the provision be invoked to give it life ? What was that spirit ? Manifestly it was a recognition of the great doctrine that, “ with us it is a universal principle of constitutional law, that the prisoner shall be allowed a defense by counsel” (Cooley's Const. Lim., 335.)
Ho good reason can be assigned why the word trial, occurring in the constitution, should be construed to mean the final inquiry upon the accusation only, "and not any and every step whiсh may be taken to inquire into the imprisonment. It should, to give force and effect to the spirit which рrompted it, be so construed as to give to every one accused of or arrested fоr crime the benefit of counsel at every step and stage of the proceeding.
This construction is demanded by every consideration of humanity; and the enlightened views of personal rights rеsulting from Christian civilization.
Whilst holding these views, no censure is imposed either upon the sheriff or district attоrney. They have both acted in good faith and with due regard for the public interests, their care аnd vigilance having been aroused by what they