The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors

Abstract

English criminal procedure was for centuries organised on the principle that a person accused of a serious crime should not be represented by counsel at trial. When the surviving sources first allow us to see something of how criminal trials in cases of treason and felony were conducted, we see the judges insistently enforcing the prohibition on defence counsel. Into the eighteenth century, the leading treatise on criminal procedure, Serjeant William Hawkins' Pleas of the Crown, endorsed the rule against defence counsel. Since any defendant "of Common Understanding may as properly [defend himself] as if he were the best Lawyer", Hawkins explained in 1721, "it requires no manner of Skill to make a plain and honest Defence .. " The notion that criminal defence was a suitable do-it-yourself activity arose at a time when the whole of the criminal trial was expected to transpire as a lawyer-free contest of amateurs. The prosecution was also unrepresented. The victim of the crime usually served as the prosecutor, aided by other witnesses and sometimes by the lay constable. A lay magistrate, the justice of the peace, organised the prosecution witnesses for trial at a pretrial committal proceeding. Sir Thomas Smith's celebrated tract, which depicts a trial for robbery conducted in a county assize court in the middle of the sixteenth century, epitomises the criminal trial as an "altercation" between citizen accuser and citizen accused.