2nd Class• Start Audio Recording• Attendance Sheet• Handouts

– Slides

• Agenda– Administrative Matters– Review– Magna Carta (1215)– Bill of Rights (1689)– Introduction to Criminal Law

Administrative Matters• Two errors on printed syllabus

– March 16 class will take place from 10:30-13:00– March 21 class will take place from 19:00-21:30– Website is correct. www.klerman.com, “Legal History”

• Reading for next class– Throckmorton– You are responsible for printing and bringing printout to class– We will act out case in class

• Please let me know if there is particular role you would like to play

Review of Last Class I• Early Middle Ages (400-1065)

– England weak – politically fragmented, invaded and settled by Germanic tribes (Angles, Saxons…) and Vikings

– Population and economic growth near zero• Later Middle Ages (1066-1484)

– Norman Invasion leads to strong, unified government– Strong population growth until Black Death (1348)– Commercial Revolution

• Early Modern (1485-1775)– Parliament wins struggles with Stuart Kings– Beginning of colonial expansion

• Modern (1776-– England dominant world power until 1914– Very strong population and economic growth

Review of Last Class II• Feudalism

– Society ruled by a military elite (nobility) of lords and vassals, in which a vassal received land (fief or fee) from his lord in return for military service to his lord.

– King was apex of feudal pyramid– By 13th century, vassals’ obligations primarily monetary

• Rise of Parliament– Origins in advice provided by tenants in chief– As feudalism weakened in 13th century, others, including

representatives of counties and boroughs also summoned– Key powers – taxation and legislation– Key problems – summoned by king, representation not

proportional

Magna Carta1) Is Magna Carta primarily a treaty ending a particular

rebellion, a statement of good feudal customs, or a document setting forth timeless constitutional principles? Try to categorize each clause (e.g. numbered section) as fitting within one (or more) of these three interpretations.

2) How was Magna Carta to be enforced? That is, what would happen if King John did not fulfill its provisions.

3) Clauses marked (*) were omitted in later reissues of the charter. Can you see a pattern to those which were omitted and those which were preserved?

4) Was there anything you found particularly interesting or surprising in Magna Carta?

Bills of Rights• 1) How does the English Bill of Rights differ from

Magna Carta? How is it similar?• 2) Can you trace any provisions of the English Bill of

Rights back to Magna Carta?• 3) What provisions of the English Bill of Rights are

similar to rights guaranteed by modern democracies? What provisions differ?

• 4) Was there anything you found particularly interesting or surprising in the Bills of Rights?

Judiciary and English Constitution (review)

• Judiciary has relatively small role in English Constitution– Cannot declare statute unconstitutional

• Because constitution is made by ordinary statutes• And because statutes can change common law• Parliamentry Supremacy

– Court can declare official action illegal– if violates statute or common law

» because government officials must obey law– See next slides

• Special problems in suing the King himself– “sovereign immunity”– But not normally a problem, because can sue officials instead

Ship Money Case (1637)• “Ship money” was traditional tax that King could exact

without Parliament– Imposed on coastal towns in times of war to finance navy

• Charles I wanted to raise money without Parliament– Imposed ship money several times on whole kingdom in time

of peace

• Hampton refused to pay• King sued Hampton for payment• Hampton raised illegality of tax as defense• Hampton lost• Note

– Constitutional issue could be raised in courts– Challenge was to royal action, not statute

Wilkes v Wood (1763)• Wilkes was opponent of government of George III

– Wrote anonymous attack on government policy– Charged with seditious libel

• Government ordered Wilkes’s house and papers to be searched under “general warrant”– Warrant not specific as to persons searched or things to be seized

• Wilkes brought trespass suit against Wood, official who actually conducted search– Trespass is unjustified interference with property

• Wood’s defense was that interference (search) was justified by the general warrant

• Wilkes argued that general warrant was illegal• Wilkes won• Note

– Constititutional issue litigated as ordinary common law suit against government officer

European Convention on Human Rights

• Principal of Parliamentary Supremacy challenged by European integration

• European Convention on Human Rights (ECHR) obligated England to respect certain rights– Enforced by European Court of Human Rights

• But court judgments not binding on states• Decision is only recommendation• So consistent with idea of Parliamentary Supremacy

• Human Rights Act of 1998– Makes ECHR part of English law, enforceable in English

courts (not just European Court of Human Rights)– If English court finds statute inconsistent with ECHR, it can

issue a “declaration of incompatibility”• But statute remains in force

– Again consistent with idea of Parliamentary Supremacy

Modern Constitutional Change

• No rebellions since 1688– Parliament has become mechanism of constitutional change

• 1832 Reform Act– Increased franchise about 50% (to about 1/5 of adult male

population)– Increased representation of newly industrialized cities at

expense of “rotten boroughs”– Ordinary legislation

• Sponsored by Whigs, who expected new voters to support them (rather than Tories)

• House of Lords opposed– But PM persuaded king to threaten to create new peers– Lords dropped opposition

Parliament Act of 1911

• House of Lords consisted principally of large landowners and high clergy– King had power to create new “peers”

• Majority of House of Lords required to pass legislation– Increasingly inconsistent with democratic character of

modern England

• Parliament Act of 1911– House of Lords could not veto legislation, but could only

delay it

• How passed?– Parliament Act itself required consent of House of Lords– PM persuaded King to threaten to create new peers who

would vote in favor of Act

Criminal Law. Key Issues

• What is a crime?– Will focus on felony -- homicide, theft,

• How is criminal prosecution initiated?– Private prosecution, public prosecution…

• How is criminal accusation proved?– Ordeal, jury…

• What punishments are imposed?– Compensation, death penalty, imprisonment…

• What protections are there for the accused?– Jury, Miranda warnings

Criminal Law in Anglo-Saxon Period I• Main source is Codes -- Very little information on practice• Initiation of prosecution

– feud?– Private prosecution?– Communal accusation from 11th century?

• Trial– Compurgation – Defendant acquitted if 12 oath helpers swear to defendant’s

innocence– Ordeal – hot iron and cold water

• Punishment was primarily financial– Criminal paid

• Bot -- Compensation to victim– Wergild, if homicide

• Wite – fine to king• Bot and wite varied with social status

– Starting in 10th century, compensation becomes rarer• mutlilation or death, fines to king, become predominant

• Protection for accused– Compurgation, weak state

Criminal Law in Anglo-Saxon Period II• Ethelbert’s Code (~600)

– 34. If there be an exposure of the bone, let bot be made with 3 shillings.– 35. If there be an injury to the bone, let bot be made with 4 shillings.– 36. If the outer hion [outer membrane covering the brain] be broken, let

bot be made with 10 shillings. – 37. If it be both [outer and inner membranes covering the brain], let bot

be made with 20 shillings. – 38. If a shoulder be lamed, let bot be made with 30 shillings.– 39. If an ear be struck off, let bot be made with 12 shillings.– 40. If the other ear hear not, let bot be made with 25 shillings.– 54. If a thumb be struck off, 20 shillings. If a thumb nail be off, let bot be

made with 3 shillings. If the shooting [fore] finger be struck off, let bot be made with 8 shillings. If the middle finger be struck off, let bot be made with 4 shillings. If the gold [ring]finger be struck off, let bot be made with 6 shillings. If the little finger be struck off, let bot be made with 11 shillings.

Policing• Limited professional police

– All villagers requires to raise and respond to “hue and cry”– Sheriffs also had responsibility to arrest

• But only 1 per county, very small staffs

• Justices of Peace (JPs)– Starting in 14th century

• Enforce legislation• Act as judges in trials of non-felonies

– Local, unpaid notables (not full time or lawyers)– Starting in 16th century, victims supposed to report crime to

Justices of Peace– JPs take written statement of victim and other witnesses for

prosecution– JPs “bind” victim and witnesses to appear at trial

• Victim or witness pays penalty if does not appear at trial

Courts

• Many courts in medieval England– Manorial– Honorial– County– Ecclesiastical– Royal

• Royal courts start with very limited jurisdiction• Crime, property disputes among tenants in chief

– Even this jurisdiction not effectively administered before Henry II

• Gradually increase jurisdiction over other cases

Benefit of Clergy

• Church claimed that clerics were immune from lay trial and punishment– Had own system of justice for “criminous clerks”

• Henry II (1164) tried to change– Led to conflict and murder of Thomas Becket

• Later medieval practice (13th century onward)– Clerk accused in royal court– Ordinary (church official) claims defendant as cleric– Jury renders (nonbinding) verdict– Guilty clerk handed over to ordinary for punishment and

possibly retrial in ecclesiastical court

• 14th century – reading test for clergy

Appeal• Appeal was private prosecution

– Initiated by victim, or, in case of homicide, by relative– Appellor – victim prosecutor

• Often woman– Appellee – accused, defendant

• Trial– Battle, if both appellor and appellee were able-bodied males

• Unless defendant consented to jury trial (after 1218)– Ordeal or jury otherwise

• Punishment– Death, in theory– Usually “amercement,” – fine to king– Often settled before trial

• Appellee paid appellor to drop the case

• History– Probably brought to England by Normans– Flourished late-12th to mid-thirteenth century– Trickle of cases until abolished by statute in 1816

Henry II

• Henry II (1154-89) often credited with creation of Common Law– Regular royal courts

• In Westminster• Traveling with King• In regular circuits of country

– Eyres (12th & 13th centuries), every few years

– Professional judges– Uniform law– Consistent record keeping

• Means we know a lot more about law starting in late 12th century

– Attempt to reduce benefit of clergy (1164)– Assizes of Clarendon (1166). Presentment

Presentment

• Assize of Clarendon (1166)– 12 men from each hundred required to attend eyre and

report on oath who suspected of crime• Assisted by 4 men and reeve from each village• “The jurors present that John stole a sheep from Richard…” • self-informing jury

– No testimony in court

– Jurors based verdict on prior investigation, rumors, reputation, information provided by 4 men and reeve from villages

– Those accused tried by ordeal• Jury trial after 1218

– Those convicted were hanged

• Some evidence of presentment from ~1000

Trial by Jury

• In 1215, 4th Lateran Council forbade clerics to participate in ordeals– Priests were essential, so king had to find alternative– Henry III (1219) King instructed his judges jail those “of

whom suspicion is held that they are guilty” of serious crimes• Clearly temporary – not enough jail space

– Judges experimented• Asked defendant if would consent to verdict of (presenting) jury• Later coerced defendants to consent

– “peine forte et dure” – stones piled on defendant until consented or died

• Jury was self-informing– Trial jury was same as presenting jury until statute in 1352– Little or no evidence presented in court

Decline of Appeal

• Settlement was key motive for bringing appeal

• Once jury trial became accepted and routine in mid-13th century, judges began disregarding settlements– Gathering jury verdicts even when case settled or

appellor nor present– Possible, because jury was self-informing– Defendants lost incentive to settle– Victims lost incentive to appeal

Decline of Self-Informing Jury• Self-informing jury required jurors with local

knowledge• 14th century institutional changes reduced local

knowledge– Shift from eyre (no more than 1 every 4 years) to jail delivery

(2 times per year)• Made it impracticable to summon 4 men and reeve from each village• Made recruiting even jurors from hundred difficult

– Black Death (1346) made it harder to recruit jurors– Separation of presenting and trial jury (1352) barred 12

knowledgeable jurors– So jurors had less prior knowledge

• Victims and defendants started telling their stories and bringing witnesses

Rex v. Hugh I

• 1) Based on what you have learned in class about legal history (e.g., the history of criminal accusation, the history of jury trial, etc.), when do you think Rex v. Hugh took place?

• 2) What topics, institutions or doctrines discussed in class are illustrated in this case?

• 3) What did you learn that was new, interesting or surprising from this case?

• 4) What, if anything, confused you about this case?

Smith, De Republica Anglorum (1560s)

• How is description of trial similar to Rex v. Hugh?

• How is it different?

• What did you see that was interesting or surprising?

Throckmorton– Political Background I• Queen Mary’s decision to marry Philip of Spain was very

unpopular– Phillip was Hapsburg, son of Emperor Charles V, ruler of Spain,

Netherlands, Germany– Fear of entanglement in continental war, taxes– Hatred of Catholics– Pure xenophobia– Fear that Spaniards would get good government jobs– Commons asked her to reconsider, but she refused

• Only possibility was rebellion– Rebellion would require deposition of Mary, substitution of Elizabeth– Multi-pronged rebellion planned

• Assaults on London from West and south (Kent)– But word got out, so rebellion had to be started prematurely

• Rebellion from West never really got under way– Wyatt marched army from Kent to London,

• Demanded custody of Tower• Turned back when it looked like Londoners might fight

– Very little bloodshed, but nearly toppled Mary,• No standing army

Throckmorton– Political Background II• Throckmorton

– Son of knight, knighted himself in 1551 by Edward VI– Probably involved in planning rebellion– Did not actually take part in rebellion– But might have been involved in uprising in West, if rebellion had not

started prematurely• Rebellion resulted in many prosecutions

– Mary would have liked to have gotten Elizabeth, • But conspirators preserved her plausible deniability

– A few dozen hangings, mostly of those actually fighting• Including Wyatt

– Many pardons