Becker, Marvin

Heidelbaugh, George E.

English

University of Miami School of Law

University of Miami Law Review Volume 7 Number 2 Article 4 2-1-1953 Blackstone's Use of Medieval Law in Criminal Cases Involving Benefit of Counsel George E. Heidelbaugh Marvin Becker Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation George E. Heidelbaugh and Marvin Becker, Blackstone's Use of Medieval Law in Criminal Cases Involving Benefit of Counsel, 7 U. Miami L. Rev. 184 (1953) Available at: https://repository.law.miami.edu/umlr/vol7/iss2/4 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. BLACKSTONE'S USE OF MEDIEVAL LAW IN CRIMINALCASES INVOLVING BENEFIT OF COUNSELGEORGE E. HEIDELBAUGH*ANDMARVIN BECKERThe current problem of benefit of counsel, in criminal cases, under thedue process clause of the United States Constitution dates back to thetwelfth century. It may well be that its origins run back into the earliestbeginnings of English Common Law. Jurists such as Christopher Saint Ger-main,' Sir William Stafford,2 Sir Edward Coke,3 Sir Matthew Hale4 andothers, in certain instances of felony, permitted the accused counsel.Mr. Justice Roberts in Betts v. Brady, 316 U.S. 445 (1942) explained andjustified the rule against appointing counsel in serious criminal cases bystating that at English common law, an individual charged with felony ortreason could not employ counsel, let alone have counsel assigned to him.Why, asks Mr. Justice Roberts, should one now be assigned counsel in casesof felony and treason as a part of due process, when the right to have counselof one's own engagement was not even allowed at common law?An examination of Britton on the question of benefit of counsel incriminal cases demonstrates that this observation regarding the Englishcommon law is some distance from the whole truth.5 A cursory reading ofthe Stuart and Hanoverian jurists shows that counsel was allowed and evenappointed in appeals of felony and treason; and in matters of law, althoughnot fact, counsel was appointed to aid one charged on indictment of felonyand treason. This was the rule in Hawkin's day.6Sir William Blackstone's description of the history of benefit of counselcontradicts Mr. Justice Roberts's contention. He was the first jurist to chal-lenge the rule against benefit of counsel in cases of felony or treason on his-torical grounds. He denied that counsel was prohibited those accused ofcapital crimes in the middle ages.Who was correct in his interpretation-Blackstone or Roberts? Usinghistory as the criteria, Blackstone appears to have been right. Many jurists,before Blackstone, had recognized the injustice of the rule prohibiting coun-*Formerly Associate Professor of Law at the University of Arkansas.**Assistant Professor of Medieval History at the University of Arkansas.I. SAINT CERMAIN, THE DOCTOR AND STUDENT OR DIALOGUE BETWEEN A DOCTOROF DIVINITY AND A STUDENT IN THE LAWS OF ENGLAND 256 ff. (Muchall rev. 1874).2. STANFORD, LES PLEES DEL CORONE 151 (1607).3. CoRE, TIE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND; CON-CERNING HIGH TREASON AND OTHER PLEAS OF THE, CROWN AND CRIMINAL CASES 29, 33-34, 136-137, 230 (Brooke ed. 1797).4. 11 HALE, THE HISTORY OF THE PLEAS OF THE CROWN 282 (1847).5. BRITTON 81 (Nichol's trans. 1901).6. II PLEAS OF THE CROWN 554 (1824).184BENEFIT OP COUNSELsel in cases of felony and treason. None, however, had challenged the his-torical basis of the rule until the time of Blackstone.7 This paper is con-cerned with the historical evidence which Sir William Blackstone used tosupport his thesis that the denial of benefit of counsel is not "strictly speak-ing a part of our ancient law."8Blackstone cites The Mirror of Justices as an authority on the subject.9This work, written about 1285, is "not a serious law book, but a legalromance."10 As Maitland says, "If at the present day a man wrote a lawbook, and said in it, law forbids that murderers should be hanged; . . . hewould be guilty of no extravagance for which a parallel might not be foundin the Mirror."" We would have to exhibit greater credulity than Coke ifwe accepted The Mirror as a valid source. And yet it might be profitableif we examined the use Sir William makes of that "incomprehensible work.' 2He refers to the following section:When the declaration of the plaintiff has been heard, the ad-versary is concerned to make a good answer. And because folk donot generally know all the 'exceptions' which can be used by wayof answer, pleaders are necessary who know how to set forth causesand to defend them according to the rules of the law and theusages of the realm, and they are the more necessary for the defencein indictments and appeals of felony than in venial cases.13This quotation is from the third book entitled "Of Exceptions." Thislimits the meaning of the words of The Mirror. They are applicable toexceptions and not necessarily applicable to counsel for contesting issues offact on the general issue of guilty or not guilty. "An exception is somethingalleged by way of answer in order to delay or destroy an action." 1 A fullstatement of the common law rule provides counsel in questions of law, andthese may be taken to be exceptions. However, nothing is said in The Mir-ror allowing or denying counsel in indictments of felony or treason in ques-tions of fact. Blackstone would have us believe otherwise. He writes:c .. the Mirrour, having observed the necessity of counsel incivil suits, "who know how to forward and defend the cause, by 'therule of law and customs of the realm'," immediately afterwards sub-joins; "and more necessary are they for defence" upon indictmentsand appeals of felony, than upon other venial causes.... 5It is obvious that Blackstone recognized the validity of his authoritywas dubious. He quotes from a book entitled "Of Exceptions" withoutacknowledging the fact. His misuse of this source may be explained by hisdesire to find historical justification for the humanization of the law. He7. 4 BL. COMM. 355 (1830).8. Loc. cit.9. The Mirror of Justices 90-91 (Whittaker ed. 1895) (intro. by Maitland).10. HOLDSWORTH, NOURCES AND LITERATURE OF ENGLISH LAW 32.11. The Mirror of Justices, supra n. 9, p. xxxvii.12. HOLDSWORTH, 1C. Cit.13. THE MIRROR OF JUSTICES, supra n. 9, p. 90.14. THz MIRROR OF JUSTICES, supra n. 9, p. 91.15. BLACKSTONE, 10e. Cit.MIAMI LAW QUARTERLYbelieved that the denial of benefit of counsel was "not at all of a piece withthe rest of the humane treatment of prisoners by the English law." He con-tinues in the vein of righteous indignation: "For upon what face of reasoncan that assistance be denied to save the life of a man, which yet is allowedhim in prosecutions for every petty trespass?"16  It may be that his reasonfor misusing a source was a humanistic mistake. Are not all changes in thelaw extra-legal?If Blackstone is perhaps consciously unscholarly in his use of The Mir-ror, he demonstrates his exactitude in analysing Leges Henrici Primi (a pri-vate compilation of law made shortly before 1118). Most of the modemauthorities believe that the origin of the rule which denies benefit of counselto those accused of felony stems from this code of law. Pollock and Mait-land, Holdsworth, Cohen, Bigelow, Pulling and others interpret Leges Hen-rici to mean that this was the first statement prohibiting counsel." Black-tone denies that the Latin text says anything about prohibiting counsel.He writes:Father Parsons the jesuit, and after him bishop Ellys... haveimagined, that the benefit of counsel to plead for them was firstdenied to prisoners by a law of Hen. I. meaning (I presume) chap-ters 47 and 48 of the code which is usually attributed to that prince."De causis criminalibus vel capitalibus nemo quaerat consiliumquin implacitatis statim perneget, sine omni petitione consilii. Inaiis omnibus potest et debet uti consilio." But consilium, I con-ceive, signifies only an imparlance .... IThe confusion of the rule is based on the translation of consilium.Blackstone contends that the consilium sought is not counsel in court buta delay for a conference (imparlance) outside of court. The evidence appearsto support Blackstone's analysis. In the next paragraph of the Leges Henriciit is stated that consilium occurs outside of the courtroom. "If, namely, anaccused walks out from a King's court to the consilium, and does not answerthe accusation immediately, he forfeits a fine of fifty solidi."'9 It is evidentfrom this statement that consilium takes place outside of the courtroom.The modem commentators have confused consilium (advise) with advocatusand forespreca (counsel or pleader). Liebermann defines consilium as "thecircle of advisors; the friends' advice given a litigant in regard to answers tobe given in a litigation (words to be spoken) outside the room or circle ofthe court; their advice." 20  Leges Henrici Primi prohibits the obtaining ofadvice while outside the courtroom. It does not deny benefit of counsel tothose accused in cases of felony.16. Loc. sit.17. POLLOex AND MAITLAND, THE HISTORY OF ENGLISH LAW 211-212 (2d. ed.);I1 HOLDSWORTH, A HISTORY OF ENGLISH LAW 106-107 (1903-26); CoHEn, A HISTORY OFTHE BAR (1929); BIGELOW, HISTORY OF PROCEDURE IN ENGLAND 218 (1880); PULLING,Ta ORDER OF THE Con' 72 (1897).18. BLACKSTONE, IOC. at.19. LIBERRzN, DiE GESETZE DER ANCELSACHEN 570-571 (Halle, 1903-1916); 3 BL.Comm. 313.20. 2 BL. COMM. pt. I, p. 39.BENEFIT OF COUNSELThe evidence Blackstone draws from The Mirror of Justices is invalid.However, his analysis of Leges Henrici appears to be correct. There was noprohibition of counsel in the Twelfth Century, in English law. The declineof benefit of counsel occurred in subsequent centuries.21 Holdsworth sus-pects that the reason the accused was not permitted counsel after the thir-teenth century, in criminal cases involving felonies, was the gradual elimina-tion of appeals of felony during this period.22It appears that Blackstone was correct-denial of benefit of counsel isnot a part of the ancient law of England. Mr. Justice Roberts's observationsin Betts v. Brady, 316 U.S. 445 (1942) are some distance from the truth.Medieval common law did not deny counsel in serious criminal cases as hecontended. A reading of Britton, Saint Germain, Stanford, Pulton, Coke,Hale, Hawkins and other authorities challenges Mr. Justice Roberts's conten-tion that at English common law one charged with felony might not employcounsel, let alone have counsel assigned to him. Not only was the accusedpermitted counsel in appeals of felony at English law but counsel was evenappointed for him. The Betts v. Brady rule as applied does not even providecounsel in questions of law. The common law, inadequate as it was, wasbetter for the prisoner in this regard than the 14th Amendment due processclause which Mr. Roberts said does not guarantee the accused benefit ofcounsel.Blackstone ends his consideration of the problem with a statementwhich substantiates the conclusions of the legal historians. The humaniza-tion of English law in the Eighteenth century was a resultant, in part, ofthe increase of the number of humane and capable judges. 28And the judges themselves are so sensible of this defect, thatthey never scruple to allow a prisoner counsel to instruct him whatquestions to ask, or even to ask questions for him, with respect tomatters of fact; for as to matters of law, arising on the trial, theyare entitled to the assistance of counsel.24That Blackstone should have used medieval law to prove that accusedhas certain rights, is itself in keeping with the history of England after theGlorious Revolution. The triumph of the principles of medieval commonlaw over the forces of absolutism led to a liberalization of the law. It ishistorically logical that a humane judge should have found the medieval lawa handy tool in reasserting the doctrine of fairness to the accused.The first Vinerian professor of English law in the University of Oxfordhandled the Leges Henrici with more skill than some of the modem his-torians. He may well be the pedantic antiquarian whose "legal history wasoften at fault."'25 In this instance, however, he neglected historical considera-tions less than his more scholarly successors.21. Y.B. 9, EDw. IV, pl. 4.22. II HOLDSWORTH, op. cit. supra, 260 ff.23. I STEPHEn, HISTORY OF THE CRIMINAL LAW OF E cLAN 424-425 (1883).24. BLACSTONE, 10C. Cit.25. HOLDSWORTH, SOURCES AND LITERATURE OF ENGLISH LAW 157 (1925).

Blackstone\u27s Use of Medieval Law in Criminal Cases Involving Benefit of Counsel

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Blackstone\u27s Use of Medieval Law in Criminal Cases Involving Benefit of Counsel

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