The History of Right to Counsel
| Published date | 01 October 1976 |
| Date | 01 October 1976 |
| DOI | http://doi.org/10.1177/002201837604000411 |
| Subject Matter | Article |
The
History
of
Right to
Counsel
These reflections on
the
history
of
right
to
counsel in England
were
stimulated
by
the
editorial which
appeared
in
the
NLJ
of
13
February
1975. Most practising lawyers are
probably
familiar
with
the
broad
outlines
of
the
present
position,
which
I do
not
intend
to
explore
in
any
great
depth;
but
the
history
of
the
process
by which we
came
to be
whete
we are is
of
some
interest,
bringing
out
as it does
the
constant
interplay
of
care
for
the
rights
of
the
accused
and
consideration for
the
interests
of
justice
which
is
such
a
characteristic feature
of
English law.
To begin
at
the
beginning, we have
to
go
back
beyond
the
limit.of
legal
memory
(1189)
to
the
Leges Henrici Primi (Laws
of
Henry I) for
the
earliest
trace
of
alegislative
enactment
dealing
with
the
subject. In this source, which has
been
recently
dated
by
L.J.
Downer
to as early as 1120, we find it
stated
that
in capital cases
at
least, no
man
shall
consult
with
counsel (chapters 47
and
48).
But
the
passage has
been
interpreted
to
mean,
not
that
the
accused was
denied
counsel
during
the
trial,
but
only
before
he
had
made
his
plea:
"once
the
accused has
complied
with
the
law
by
making
denial
he
may
then
seek
the
advice
and
help
of
others"
(Downer,
p.356).
Moreover in a
twelfth-century
London
manuscript
edited
by
Bateson
(English Historical Review
vol.I
7,
1902)
it is
stated
that
"robbery
and
breach
of
the
peace
and
rape
and
felony
and
mayhem
and
arson
and foresteal, all these
and
similar pleas are
defended
both
before
and
after
the
taking
of
counsel."
Coming
to
the
year
1200,
we find Glanvill stating (ed. G.D.H.
Hall,
1965,
pp.132-3)
that
civil actions
at
least
may
be
tried
and
determined
either
in
person
or
by
counsel.
With
the
reign
of
Edward
I, we are
on
firmer
ground.
A
distinction
is
drawn
between
the
more
serious crimes, cognizable
by
the
King's
courts,
and
lesser offences,
which
we
knew
for
so
long
as
misdemeanours,
though
the
latter
term
did
not
properly
develop
until
the
sixteenth
century,
which
might be
tried
in
other
courts
(the
court
of
the
lord
of
the
manor,
and
so forth).
Of
course
the
distinction
may,
as we have seen, be earlier
than
this;
but
at
any
rate
in
the
Year Books
of
the
very early
fourteenth
century
we have
preserved for us a case which
not
only
illustrates
perfectly
the
pro-
cedure
of
the
period
but
was also,
for
many
centuries it seems, a
leading
authority
on
the
right
to
counsel.
Edited
by A.J.
Horwood
in
the
Rolls Series
(1863)
there
is a full
translation
of
the
original
Latin
at
pp. xliv-xlvii
of
the
preface.
It
concerned
a
knight;
we do
not
know
his full name,
but
he was called Sir Hugh,
who
was accused
of
rape.
He refused to plead
without
counsel,
but
was
informed
from
the
bench:
"you
ought
to
know,
that
the
king is
party
to
this
action
ex
officio, hence for this reason
of
law it does
not
appear
you
should
275
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