Ideological Origins of the Right to Counsel

Abstract

The defense counsel is a paramount actor in modern criminal trials, but this was not always the case. Indeed the allowance of counsel to felony defendants can be traced to only a few hundred years ago, a relatively modern innovation in the area of legal history. This essay examines the intellectual origins of the right to counsel, which it situates in the era of the English Revolution. Drawing on pamphlet literature, cases, and statutes from the Seventeenth-Century in both England and North America it argues that the right originated from a fear of unfairness brought on by a mistrust of the law among puritan reformers who worried that without the guiding hand of counsel defendants would be wrongly convicted. The right to assistance of counsel is found in nascent form in the Body of Liberties of Massachusetts Bay, which is the first Anglo-American legal code to remove the prohibition on defense counsel. Although initially opposed by the colony’s leaders the code reflected their desire to reform the Common Law and their attempt to blend religious law with English law. The intellectual origin of the right to counsel thus also represents the transatlantic circulation of legal ideas.