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Lecture Compilation.docx

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Carleton University
LAWS 3305

Lecture CompilationLAWS 3305LECTURE 2W2 Lecture 2Nothing Happens in a VacuumWeve largely inherited law from Mother Britain as something that has been engendered coloured and encouraged by all kinds of events After the Romans had left there was a bit of a disciplined legal system that thcrumbled in the 5 C European mercenaries slipped into the void in England for a bit of time Normandy and France is where the Normans were which were the North men William the Conqueror was the illegitimate son of the Duke of Normandy and was the Duke of Normandy upon his fathers death in 1045 Through one event or another we drag ourselves into England in 1066 when William came over from Normandy and was successful in making a good landing on the East Coast and Harold who was his rival raced down from the North and after a long morning of putting up a good fight they were defeating at the famous battle of HastingsHe took on England at a very crucial period of time and having evicted Harold the Saxon and taken over the throne he began to centralize and stabilize England He took away a lot of the land holdings from the Saxons who were the principle rivals for power in England at the time In exchange allowed a lot of local operation by the sheriffs who administered law on a local level They put down a lot of rebellion in the North He was ruthless until England was conquered and united in 1072What was the way of retribution when he arrived on the shores in 1066There were simple thingspreconquest was a selfhelp measure with certain traditions or customsOne were blood feudswhere relatives take up the grievance There was a system called bots which was a system of fines or compensation that may be imposed on the wrongdoer if that was sufficient This persisted into the 1300sThese changes to the law took two to three centuries where various institutions developedDeterminate punishmentmay be as basic as an eye for an eye that was meant to deter othersOutlawrythe community would declare a particular individual outside of the law they became an outlaw and had no rights One the Normans exerted their influence and things developed they affected the concept of the Kings Peace which is central to everything in the criminal law system the notion that when you disturb someone else you are not only acting visa vi that particular individual but youre also contravening the interest of the state It is a crime against the state as opposed to the old system where you hurt someone and they come after youWhen a system of Royal Courts developed royally appointed from London this participation coopted the upstanding citizens into a sense of loyalty which created political stability It is an early example of the transparency of law The more this became used as a system the fewer men at arms the crown had to dispense to maintain the peace because there was a system in place ththDuring the course of the 13 C and the beginning of the 14 C Royal Courts were instituted and the King or Queen appointed all levels In 1360 we see that there are justices of the peace They were royally appointed and administered the local courts they used to be called magistrates presiding over the quarter sessions which would sit loosely speaking three or four times a year They dealt with what was then known as lesser offences or what we would call summary convictions The JPs then called them misdemeanors They also sat with a grand jury that was comprised of local upstanding men Circuit courts the judges really only sat outside of London maybe once a year The sittings were called the assizes It was a big social event when the judge would come to town The Grand JuryThey didnt sit to determine innocence or guilt but to see if there should be a trial at allThey would preside over torture As the centuries went by the torture aspect disappeared and the grand jury shed its skin as a grand jury and was discontinuedthIn about the 14 C it became known as the petit jury which is really the jury as we know it one of ones peers They transitioned from a group of local gentry to determine whether there was enough evidence for a trial now they were sitting as triers of fact Preliminary HearingInquirywith respect to indictable offences our contemporary version of felonies you have the right to a jury trial Under the charter if you are charged with an offence for which if convicted you would face 5 years in prison or more you have the right to a jury trial In reality less than 10 of trials in a year are jury trials The Crown doesnt have to prove guilt most often the accused doesnt take the stand If the accused has an alibi they are likely to introduce it because the rules of procedure encourage raising an alibi at the earliest possible instance Tudor Period Laws and penalties increase both in their measure and their numberWe see very severe penalties there are no modern correctional or criminological niceties in playThere was a lot of political exercise of treasonJury Nullificationthe Quaker was a historical figureWilliam Penn his was a thfamous case in the 17 C when he and another accused challenged the judges in London and invited the jury to rise up and vote with their conscience even though he was guilty of his offence He had held a tumultuous riot The chief justice of England allowed an appeal from Penn and his coaccused and the jurors who were jailed until they brought in a verdict of guilty the chief justice said no the province of the judge is the law the province of the jury is the facts and they cant be abused If the jury said there arent sufficient facts to merit a verdict they cant be forcedThe prevailing thought is that if juries knew they had the right of jury nullification they would abuse it Modern example OJ Simpsoneveryone knew he was guilty Never had there been more evidence to convict someonebut he still walkedIn America every three minutes a woman is beaten or killed by her partner It wasnt a big deal to the jury that this was a problem in OJ Simpsons case as it was a numbing problem They were more concerned with how African Americans were being treated at that timeIn CanadaManning in his decision in Morgentaler invited the jury to nullify the law The SCC didnt like this The Star Chamber 14871641When it was first conceived it was a very populist userfriendly courts with members drawn from the Kings privy counselors as well as commonlaw judges They could hear cases by direct appeal from the lowest citizenryreal estate government administration petitions of grievancethHenry the 8 encouraged the average guy to show up in court and plead his case directly While the court had the power to impose fines it didnt have the power to impose a death sentence with public sessions thAs time went on in the early 17 C the Stuart Kings are in play Charles and James turned it into a more political vendetta forum with secret courts where penalties were swift and rather determinate It became a forum where political enemies or perceived rivals could be dealt with swiftly and quietly It became known as something sinister It was discontinued by the convention parliament in 1641 At this point we have a rough court system in place we have judges sheriffs centralized systems that control all of this we have the grand jury fading away While life is pretty raw on the street in terms of penalty and punishment certain provisions are coming into place Most notably right after the Stuarts devise and the restoration period the monarchy is restored The Glorious Revolution 1689
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