As advocates seek recognition of a civil right to counsel it is worth noting the extraordinarily ancient roots of the concept. Clause 40 of the Magna Carta guarantees that “[t]o none will we sell, to none deny or delay, right or justice.” A Tudor statute, 11 Hen. 7, c. 12 (1494) established a right to counsel for indigent civil plaintiffs with meritorious causes of action, requiring a court to “assign to the same poor person or persons, Counsel learned by their discretions which shall give their Counsels nothing taking for the same ….” The right later expanded to include civil defendants.

Some state constitutions incorporated provisions of English common law that were not included in the U.S. Constitution. The Maryland Declaration of Rights is one of these, and the plaintiff in Frase v. Barnhart relied on this argument. For more detail on the historical perspective see the appellant’s brief in the Maryland Court of Appeals.