Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 38.: Accused entitled to counsel.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 38.: Accused entitled to counsel.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 38.

Accused entitled to counsel.—

The State, in all criminal prosecutions, is represented by a solicitor, learned in the law, and unless the accused was likewise represented by legal counsel, he would usually be at the mercy of the court and of the prosecuting attorney. The prosecution might very easily be converted into a persecution. It was one of the most horrible features of the early common law of England, that persons accused of felonies were denied the right of counsel, the very cases in which the aid of counsel was most needed; and it was not until the present century that in England the right of counsel was guaranteed to all persons charged with crime.1 But in America the constitutional guaranty of the right of counsel in all cases, both criminal and civil, is universal, and this has been the practice back to an early day. Not only is it provided that prisoners are entitled to counsel of their own appointment, but it is now within the power of any judge of a criminal court, and in most States it is held to be his imperative duty, to appoint counsel to defend those who are too poor to employ counsel; and no attorney can refuse to act in that capacity, although he may be excused by the court on the presentation of sufficient reasons.1

On the continent of Europe, the prisoner is allowed the aid of counsel during the trial, but until the prosecuting attorney is through with his inquisitorial investigation of the prisoner, and has, by alternately threatening, coaxing, and entrapping the accused into damaging admissions, procured all the attainable evidence for the State, he is denied the privilege of counsel. The counsel gains access to his client when the prosecuting attorney is satisfied that he can get nothing more out of the poor prisoner, who finding himself perhaps for the first time in the clutches of the law, and unable to act or to speak rationally of the charge against him, will make his innocence appear to be a crime. Not so with the English and American law. From the very apprehension of the prisoner, he is entitled to the aid of counsel, and while his admissions, freely and voluntarily made, are proper evidence to establish the charge against him, it is made the duty of all the officers of the law, with whom he may come into contact, to inform him that he need not under any circumstances say anything that might criminate him. Confessions of the accused, procured by promises or threats, are not legal testimony, and cannot be introduced in support of the case for the State.1

[1]In 1836, by Stat. 6 and 7 Will. IV., ch. 114. Before this date, English jurists indulged in the pleasing fiction that the judge will be counsel for the prisoner. “It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, undoubtedly, they were, as far as they could be, to prevent undue prejudice, to guard against improper influence being excited against prisoners; but it was impossible for them to go further than this, for they could not suggest the course of defense prisoners ought to pursue; for judges only saw the deposition so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity.” Baron Garrow in a charge to a grand jury, quoted in Cooley Const. Lim. *332, n. 2.

[1]Wayne Co. v. Waller, 60 Pa. St. 99 (35 Am. Rep. 636); Bacon v. Wayne Co., 1 Mich. 461; Vise v. Hamilton Co., 19 Ill. 18.

[1]Commonwealth v. Taylor, 5 Cush. 605; Commonwealth v. Curtis, 97 Mass. 574; Commonwealth v. Sturtivant, 117 Mass. 122; Commonwealth v. Mitchell, 117 Mass. 431; People v. Phillips, 42 N. Y. 200; People v. McMahon, 15 N. Y. 385; State v. Guild, 10 N. J. 163 (18 Am. Dec. 404); Commonwealth v. Harman, 4 Pa. St. 269; State v. Bostick, 4 Harr. 563; Thompson v. Commonwealth, 20 Gratt. 724; State v. Roberts, 1 Dev. 259; State v. Lowhorne, 66 N. C. 538; State v. Vaigneur, 5 Rich. 391; Frain v. State, 40 Ga. 529; State v. Garvey, 28 La. Ann. 955 (26 Am. Rep. 123); Boyd v. State, 2 Humph. 655; Morehead v. State, 9 Humph. 635; Austine v. State, 51 Ill. 236; State v. Brockman, 46 Mo. 566; State v. Staley, 14 Minn. 105.