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
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
o Crime and Society in England: Third Edition, 1750-1900, by Clive
o A Concise History of England: from Stonehenge to the Microchip, by
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
• Form of compensation
• If you had stolen two cows/sheep, pay a bot to the
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—
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
Treason/felonies (treason being a specific type of felony, treason
being treachery in the form of attacking/assassinating/injuring the
• Canada has indictable offences (major ones)
• 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
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
o Administered local courts
o Sat as magistrates for many years in our Criminal
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
**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
o These are royally appointed—at the whim of the
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
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
There’s also trial by ordeal (not sufficient
evidence, still concern about the crime—
torture would be applied)—be put on the
• 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
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.
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
• 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