Johnson v. Whiteside County.

• Decision Date: 19 May 1884
• Citation: 1884 WL 9839,110 Ill. 22
• Parties: CHARLES J. JOHNSON et al.v.WHITESIDE COUNTY.
• Court: Illinois Supreme Court

110 Ill. 22

1884 WL 9839 (Ill.)

CHARLES J. JOHNSON et al.

v.WHITESIDE COUNTY.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on writ of error to the Circuit Court of Whiteside county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Mr. C. C. JOHNSON, for the plaintiffs in error.

Mr. WALTER STAGER, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

At the August term, 1882, of the Whiteside circuit court, seven indictments were returned against four persons, for forgery. The accused were unable to employ counsel, and plaintiffs in error were, without their consent, appointed by the court to make their defence. The case against two of the accused was tried, plaintiffs in error appearing for them, and they were convicted, and the others pleaded guilty, and all were sentenced to the penitentiary. The judge who appointed plaintiffs in error to defend, gave them a writing requesting the board of supervisors to allow and pay them $100, as compensation for such service. The board refused to make the allowance, and plaintiffs sued the county. On the trial of the case in the circuit court, judgment was rendered in favor of the county. The case was removed to the Appellate Court for the Second District. The judgment of the circuit court was affirmed, and the case is brought to this court, and a reversal is urged.

The only question presented by this record is, whether the county is liable for compensation to attorneys appointed by the court to defend persons indicted for crime, and who are unable to employ counsel for their defence. Under the ancient common law, persons accused of treason or felony were not permitted to defend, under the plea of not guilty, by counsel. The practice was, not to permit counsel to be heard on questions of fact, but the court would assign counsel to discuss questions of law arising on or after the trial. In such cases the prisoner proposed the point, and if the court supposed it would bear discussion, it assigned him counsel to argue it. (2 Hawkins' Pleas of the Crown, chap. 39, sec. 4, p. 555; 1 Chitty on Crim. Law, 407.) Thus it appears that at the common law the court exercised the power of assigning counsel to argue legal questions, and it seems counsel could only appear for that purpose after being assigned by the court. The Bill of Rights (or article 8, section 9,) of the constitution of 1818, provided, “that in all criminal prosecutions the accused hath a right to be heard by himself and counsel,” and the constitution of the United States contains a similar provision regulating the practice in the Federal courts. This constitutional provision is retained in the present organic law, and modified the rigor of the common law by extending the privilege of the accused to be heard by counsel on both the facts and the law; but it still left the common law in force as to the power of the court to assign counsel, and is the present chapter 28 of the Revised Statutes of 1874, which has been in force since September 17, 1807. This State was then a part of Indiana Territory, the legislature of which adopted the provisions of chapter 28, adopting the common law in substantially the same language of the present law. In 1809 the Governor and judges of the Illinois Territory adopted the laws of Indiana, so far as they were not local to that territory. That law appears in Pope's Revision of 1815. The State legislature, in 1819, reënacted the law as it now stands, and it has so remained ever since.

Thus it is seen, under the common law, and the 9th section of article 8 of the constitution of 1818, the courts had the power, and it was their duty, to assign counsel to defend persons charged with crime, who were unable to employ counsel, and such has ever been the practice in this State. Nor has the power ever been questioned. Our criminal codes, from the earliest period of legislative history, have provided that trials for criminal offences shall be according to the course of the common law, except as otherwise provided. It then follows, that it was by express enactment that the common law should be in force as to this power, and was as binding as is the 422d section of the act of 1874, Rev. Stat. page 410. That section conferred no new power, nor did it impose...