3rd Class

1. 3rd Class • Start Audio Recording • Attendance Sheet • Handouts • Slides • Agenda • Review • Later history of English Constitutional Law • Introduction to Criminal Law • Rex v. Hugh • Smith, De Republica • 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

2. Review of Last Class I: Magna Carta • Part feudal, e.g. regulation of scutage, relief, etc. • Part timeless, e.g., no arbitrary deprivation of property, no taxation without consent, etc. • Part treaty, e.g., return lands recently taken • Enforced by Council of 25 Barons with power to wage war on king • Reissued as statute in 1225 • Several key provisions removed • Treated as ordinary statute, subject to amendment, modification, and repeal

3. Review II: Bill of Rights • Similar to Magna Carta • Limitation on royal power • Imposed on king after rebellion • But also different from Magna Carta • Statute, not charter (grant) • Presupposes existence of Parliament • No references to feudalism • In some ways similar to modern constitutions • No taxation without Parliament • (limited) protection for freedom of speech • No cruel and unusual punishment • In some ways different from modern constitutions • Discrimination against Catholics • Limitation on king, but not on Parliament

4. 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

5. 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

6. 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 • Parliamentary 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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?

20. 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?