The Right to Counsel in American Courts

By William M. Beaney | Go to book overview
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CHAPTER II
RIGHT TO COUNSEL IN ENGLISH AND EARLY AMERICAN LAW

RIGHT TO COUNSEL IN ENGLAND BEFORE 1836

SINCE SO many elements of our substantive and procedural law have an English ancestry, it is natural to assume that there were precedents in early English law concerning the right to appear with counsel in criminal cases. Although Parliament and the courts threw their protection around the right to trial by jury, which dated from the period of Bracton in the mid- thirteenth century and attained its more modern form by the middle of the fifteenth century,1 they showed little interest in extending the statutory right to retain counsel to all criminal proceedings until 1836.

Illogically, in the least serious cases, English law had granted recognition of the accused's right to retain counsel and to make a defense with his assistance.2 In these minor cases, or misdemeanors, examples of which were libel, perjury, battery, and conspiracy,3 the state's interest was apparently deemed so slight that it could afford to be considerate toward defendants.4

In addition, there was a group of misdemeanors for which the common law did not provide any punishment, or provided punishment that was regarded as insufficient. Such acts (frequently of a political nature) which the Crown chose to notice, although less serious than sedition or treason, were triable before the court of Star Chamber. Here the presence of counsel was

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1
Sir James F. Stephen, A History of the Criminal Law of England ( London: Macmillan, 1883), I, 260-265.
2
Ibid., p. 341.
3
William Blackstone, Commentaries on the Laws of England, 12th ed. ( London: T. Cadell, 1795), IV, 5n(2).
4
Stephen, op. cit., I, 397-399, stresses the advantages which the Crown claimed in other criminal trials.

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