The right of the accused to have the benefit of counsel for his defense was not always recognized in the common law; indeed, at one time it was denied in all but the most trivial cases. According to Blackstone’s 1769 Commentaries, in all capital crimes “it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial.” An exception was only granted when “some point of law shall arise proper to be debated,” but that exception could be interpreted with great latitude by the judge.
This was one “settled rule” in English common law that Blackstone vehemently criticized. He claimed that the rule effectively required the judge to act as “counsel for the prisoner,” and he opined that such a law “seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law.” It seemed nonsensical to Blackstone that a prisoner could procure legal counsel for petty crimes and civil trials, yet it was “denied to save the life of a man” in capital crimes.
Joseph Story condemned the slowness of England in abandoning this rule: “The defect has indeed been cured in England in cases of treason; but it still remains unprovided for in all other cases.” Story praised Blackstone’s forthright condemnation of this “anomaly in the common law,” and he added that denying the accused the benefit of counsel in most cases was to “the discredit of the free genius of the English constitution.”