I am pleased to announce that my paper will be published in Volume 1 of the South Carolina Law Review. The paper's abstract is below:
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.
A previous version of this paper was presented at the Law, Culture, and Society Workshop, at The University of Chicago on 7 June 2010.
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