half-starved when they were committed, they would be when they were herded
into court on the first morning; and they were obliged to speak entirely for
themselves.
It was a rule in common law criminal trials for felonies in the late seventeenth
century (though not for misdemeanours) that defendants had no right to engage
counsel to put forward their case or to speak for them to the judge and jury. That
rule also applied in trials for treason against the king’s person until it was altered
by a statute in 1696 that allowed accused traitors to be fully represented in
court.^10 But it continued to apply in felony trials. If accused felons had a defence
to put forward, they had to offer it themselves and, if it was to be effective, to
support it by calling witnesses. Defendants were forced to be active participants
in their own trials not only because they were not allowed counsel but also be-
cause they could not rely on the judges’ instructions to juries to ensure that the
evidence against them would be properly evaluated. Not only were there few
safeguards against tainted evidence being introduced, there was as yet no gov-
erning notion that the defendant was to be regarded as innocent until proven
guilty beyond a reasonable doubt. In the late seventeenth century defendants
began with no such advantage. If the evidence given by the prosecution seemed
to implicate them, they would have to explain it away or to give the jury some
other reason to excuse them if they hoped to be acquitted.^11
Both the severe limitations on the ability of the accused to prepare for trial
and the rule prohibiting defence counsel in felony cases were defended by
William Hawkins in his influential treatise on the criminal law published in the
second decade of the eighteenth century.^12 Hawkins drew a distinction between
The Old Bailey in the Late Seventeenth Century 263(^10) The Treason Act ( 7 & 8 Wm III, c. 3 ). The statute grew out a concern for fairness in treason trials
that was raised after the Revolution because of the numerous trials in the last years of Charles II’s reign
in connection with the Popish and Rye House Plots. The fact that many of the defendants were gentle-
men—and some peers—clearly focused the attention of the political class on the issue. Fundamental ob-
jections were raised against a form of trial that was prepared and conducted by counsel for the Crown,
often led by the attorney-general, in which a large amount of evidence was given entirely orally, and to
which the accused was expected to reply without having had the benefit of prior knowledge of the pre-
cise charges to be faced, the evidence to be given, or who the witnesses would be, and to do this without
the help of counsel. The disadvantages under which the defendant laboured in such a trial became an
urgent issue in parliament after 1689 and resulted eventually in a statute granting defendants a range of
rights not hitherto available, including the right to counsel. For the Treason Act, see Samuel Rezneck,
‘The Statute of 1696 : A Pioneer Measure in theReform of Judicial Procedure in England’, Journal of
Modern History, 2 ( 1930 ), 5 – 26 ; James R. Phifer, ‘Law, Politics, and Violence: The Treason Trials Act of
1696 ’, Albion, 12 ( 1980 ), 235 – 56 ; and Alexander H. Shapiro, ‘Political Theory and the Growth of Defen-
sive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696 ’, Law and History
Review, 11 ( 1993 ). For its longer term implications, see Langbein, ‘The Prosecutorial Origins of Defence
Counsel’, 317, 360– 5 ; and see below, Ch. 8.
(^11) For the role of the defendant in felony trials in this period and the absence of controls on evidence,
see the sources cited in n. 1 above, and two further essays by John Langbein, ‘The Historical Origins of
the Privilege Against Self-Incrimination at Common Law’, Michigan Law Review, 92 ( 1993 – 4 ), 1,047– 85 ;
and ‘Historical Foundations of the Law of Evidence: A View from the Ryder Sources’, Columbia Law
Review, 96 ( 1996 ), 1,168–1,202.
(^12) William Hawkins, A Treatise of the Pleas of the Crown, 2 vols. ( 1716 – 21 ), ii. 400.