I see your point but the common law at the time of the drafting varied (as it does today) between the many states and there was no unified federal level common law at the time of ratification. Some states had appointed counsel and some did not. But since you bring him up I would like to retract my early endorsment of Warren and put Clarence Thomas in his place. Particularly because I like Clarence Thomas’s dissent in Gonzales v. Raich. Common law judges have always had broad powers in relation to the course of a trial which has included things such as appointing counsel, unless these actions were specifically not allowed by statutory laws.
Also the common law is inherently flexible and dynamic in order to deal with the specific facts of the case at hand, to be capable of dealing with situations not met by statute, and in order to clarify vague areas that a statute does not explain, which if you ask me is the present problem with the judiciary. They have to articulate upon dangerous and powerfull statutes, that the common law would never have invented on it’s own. Basically what I am getting at is that most of the overwhelming power and presence that the modern Judge has over us is due to areas that the legislature brings under the guise of law, so more and more things are capable of being brought to court and the power of the Judge is no longer kept towards protecting cases of life and property but instead deals with other areas of social engineering. A common law system with a large statutory civil code equals tyranny but I dont think that is the judiciary’s fault.