Making sense of Blackstone's puzzle: Why forbid defense counsel?

Abstract

There is a puzzle at the heart of the history of the English criminal trial. Defendants accused of serious crimes were denied counsel, but not defendants accused of minor crimes. Why? Sir William Blackstone could find no explanation and denounced the rule as contrary to the “face of reason.” This article proffers an answer. The rule is traced to the thirteenth century and a strong view of the royal prerogative. Royal interests were at stake, and counsel would not be permitted against the king acting ex officio. The rule seems to have been distinctly English; it does not appear to have been transplanted from the Roman-canon law. The rule continued in England, bolstered by new justifications, long after its original rationale had been forgotten.

Citation

Gallanis, T.P. (2010), "Making sense of Blackstone's puzzle: Why forbid defense counsel?", Sarat, A. (Ed.) Studies in Law, Politics and Society (Studies in Law, Politics, and Society, Vol. 53), Emerald Group Publishing Limited, Leeds, pp. 35-57. https://doi.org/10.1108/S1059-4337(2010)0000053005