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Lecture 3

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HIST 3305
Christopher Mc Naught

Lecture 3 (the first ACTUAL lecture) Tuesday, July 9, 2013 - Gun contrl occupying a lot of media attention o Obama—press conference—summed up challenges at the end of his first mandate, pressed on gun control issues o Biden supposed to give legislative scheme for addressing this issue o The Republicans saying they have more important things to do, will push it off until the spring - Question whether it will be an issue relevant to this course, source for an essay o It is. o Never has the right to bear arms and the philosophy of a large segment of Americans in having a love affair with their guns been more confused o The world’s leading democracy has amnesia about how it was born  Completely forgot about the other amendment about free speech! General liberty to be safe and secure, the pursuit of “life, liberty and the pursuit of happiness”!  The NRA can play on that so that the deaths at Connecticut are really perversely the best marketing that has ever happened— assault rifle sales have gone up  If the NRA gets a ban on assault rifles, it’s probably the slippery slope. Assault rifles are the major item.  There are 30,000 gun deaths every year in the US o Last week, in a California high school, there was a shotgun incident (because the kid had been bullied) - **Doesn’t lecture directly from it, the exam doesn’t come directly from it, but it’s a good guide/background. Read at your own pace. - **Recommended books: o Eighteenth-century Britain: 1688-1783, by Jeremy Black  Helps to understand the historical figures when covering British history  Industrial revolution, coming through age of Enlightenment, leaivn the Middle Ages, the developments in the legal system (too much capital punishment, executions, harsh treatments of the little guy, juries starting to acquit people because of conscience), the role of the church o Crime and Society in England: Third Edition, 1750-1900, by Clive Emsley o A Concise History of England: from Stonehenge to the Microchip, by F.E. Halliday  Gives the whole overview, lots of pictures - These books shed further light on our discussions - THE EARLY DAYS OF THE FORMULATION OF THE RULE OF LAW - See how organic this development is in the Western experience. It’s not immutable, not black-letter law. Not one dry statute after another. - The British/Canadian experience is more organic than the American one, because we don’t bow down to certain amendments or pledge allegiance to them. o Look at it from socio-political context—things are evolving o The Criminal Code, however, is treated like the Temple on the Mount. Some things are generally fixed (don’t rape, murder, etc.), but the degree to which you can or can’t, how to be punished, etc. change over time.  Ex. What was known as rape is no longer sexual crime. It’s part of “sexual assault”, known as a crime of violence. The same general activity is impuned by the Code but society views it differently. o Rather than memorize a whole slew of dry statutes, look at the arrival of the Normans, American and English Revolutions, pihosophical and literary events that shape how people think of other people, how we mtutually regulate ourselves in a criminal sense - When the Romans left Britain (around 410 AD), there was a period when European mercenaries, Viking hordes, Angles, Saxons, Jutes swept back and forth for many centuries. th o At the end of the 10 century, Harold the Saxon (in a dispute with relative, the Duke of Normandy)—William the Conquerer came across the channel, beat Harold in Hastings. The Normans had arrived. o Some hundreds of years of experience in Britain that were essentially French. The language was French. o With the arrival of the Normans, begin to see developments in criminal law, beginnings of legal procedure. o When William arrived—  if you had stolen from someone else in village, local court would determine that you’d lose a foot/hand/eye/etc. In that sense, it was a determinate punishment (method for gaining some satisfaction prior to the Norman arrival) • No legal aide, lawyers, court of appeal.  Or could have a blood feud—having been wronged by member of another family, have right to pursue someone of the other family until the feud comes to an end. • TV miniseries “Hatfields and McCoys”: one of the biggest family feuds in history  Another method of dealing with criminality: simple outlawery • The village/group/society/tribe would put you outside the law because you had put yourself outside the law, done something that contravened the rules of that group o Ex. Robin Hood  Another: bots • Form of compensation • If you had stolen two cows/sheep, pay a bot to the aggrieved victim o These were loose forms of retribution, not set down in some system - Many people attribute William with the notion of the king’s peace, but it was his descendant, Henry II (one of England’s finest kings, although complicit in the murder of Thomas Beckett. He married Eleanor of Aquitane, French Queen, consolidating the empire across the Channel) took over in 1154. He can be more validly credited with establishing the notion of the king’s peace— GROUNDBREAKING PRINCIPLE  If you committed wrongful act against someone, it’s also WRONGFUL ACT AGAINST THE STATE. • Stealing a cow= taking the king’s property • State was evincing an interest in social order • Brilliant politically—consolidated notion of what was right or wrong around the monarchy—brought stability, reduced number of soldiers/officials needed ot keep the peace because it was more transparent. People knew that if they did something criminal, it was crime against the state. o Two branches of offences recognized as matters the King’s Peace would apply to:  Treason/felonies (treason being a specific type of felony, treason being treachery in the form of attacking/assassinating/injuring the king’s person) • Canada has indictable offences (major ones)  Misdemeanors • In Canada, called summary offences (less major ones, don’t have right to jury trials- theft, trespassing) o Torts (civil injries and injustices) were separate, lumped with ecclesiastical offenses. But in due time, they were brought into the general system. o This system fo royal courts was institutied throughout allt he shires (counties) across Englan.d  It was under Henry II that things really started to gel, he should have the credit  Both levels of offences had judicial officers presiding over them • Misdemeanors: justices of the peace (JPs—we still have those, presiding over summary convictions and lesser matters) o Administered local courts o Sat as magistrates for many years in our Criminal Code. o Until recently, provincial court judges were referred to as magthtrates o Early 14 century: they become consolidated in the place of sheriffs as people who administered local courts  **origin of the word “sheriff”: shire reeve, person who watches over the shire. o They sat as magistrates on misdemeanour at what were called the “quarter sessions”—they sat three or four times a year. o Supervised the taking of evidence (if you were victim/family member, would approach the JP to activate the system, take the evidence to him and things would proceed from there)—the JP might then issue a warrant. The constables, sheriffs would bring in the person/evidence in question, overlook judgements. o These are royally appointed—at the whim of the monarch th th o The Grand Jury was put in place. Around 12 /13 century—had a particular function. Drew in the landed gentry, made them feel like they were participating in the system, kept a sense of fealty/loyalty to the monarch, stability in the system.  They’d determine whether there was sufficient evidence for a trial  Trial consisting of a battle by oaths  It’s the early seeds of what we know as the adversarial system (theoretically, have a defence, prosecution, and the truth will emerge from the equal clash of forces of each side)  There’s also trial by ordeal (not sufficient evidence, still concern about the crime— torture would be applied)—be put on the rack • Undth path, the truth would emerge  During 11 -13 century, it got refined. Grand Jury retreated functionally into pre- trial mode (determines whether there is evidence to commit a person to trial).  We no longer have a Grand Jury—in its place, since the 1970s, we have “preliminary hearing”—guilt or innocence is not determined, but determining whether there’s sufficient evidence before the court to warrant the committal-free trial of the accused person o Eventually, there came to be a petit jury: function of determining the outcome. Grand jury lapsed in the system. (Although it still exists in the States.) • Felonies: judges o Also royally appointed, came out of a circuit court o They sat traditionally just once a year in the various parts of the country (the assises) o If you committed horrible crime the day after the assises were over, you’d have to wait in jail for a whole year until the next assises! o Very social, prestigious, momentous occasion when the judge came into town for the assises, people would be entertaining him. But there’s presumption and structure of the law, coming from central place in the country. A system is developing. o Juries  Creaking criminal law system compelled English to change the system in late 18 and early 19 century  That problem made itself known by jurors voting with their conscience more and more • Ex. Morgentaller case—the lawyer invited Surpreme Court jury to vote with their conscience as opposed of voting to the law. • Ex. Women gaining more prominence in society, doctors no longer alloed to be prosecuted for effecting abortions • This is contrary to the law—the law changed accordingly. • **O.J. Simpson—jurors voted against the evidence. Famous prosecuting attorney said that “according to the DNA evidence, either O.J. or someone who hasn’t been born yet committed it”. But still no one listened. • **doctrine of JURY NULLIFICATION—redering the applicable law null by voting witht heir conscience instead • William Penn—1670 trial in London, so important that all 9 justices sat on it. Also known as Bushell’s case (foreman of the jury). William Penn: principal defendant. As a Quaker, was out on a Sunday talking about his faith, and this was contrary to existing beliefs under Church of England and he was considered to be indulging in “tumultuous assembly”, was tried for it. Penn was very articulate, independent person. He called out to the jury and said “do not convict me. There’s freedom at issue here. Do not lose this freedom to assembly”. Asking the jurors to vote with their conscience, because there was no doubt that he had contravened the legislation. The judges put him out of sight of sight of the jury, and compelled them to find him guilty, but the JURY REFUSED. • The jury were locked up! Put in jail without tobacco or water for a period of time until they returned the verdict of “guilty”, were fined a certain number of marks. • Chief Justice of London heard this, determined ever after this ideological function—that the judge’s prerogative was the law, but the juror’s domain was the facts. If they chose to find it, that was their prerogative and they were not to be interfered with/tampered with/they were not to be threatened by the judiciary. That was the origins of the doctrine of nullification.  Another development that started as an expression of confidence was the star chamber • (skipping ahead many centuries) • Historically, used in a pejorative sense (in the States, if someone feels the jury was inappropriate about the trial, they’d say they suffered a star chamber experience) • Originally, the star chamber was in the late 15 century. Inaugurated in the late 1400s. The star refers to a pattern painted on the ceiling of the room in Westminster Palace where the court was held. • It became a judicial body separate from the King’s council (his cabinet). They had special mandate to hear petitions of redress (people could bring various matters to the attention of the king and his councils, this was a supervisory body that oversaw operations, looked into issues like public disorder, real estates, proprety, trade and government administration, land enclosures) • At this st
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