September 17, 2012
-Martin J. Wiener, 'Judges vs. Jurths: Courtroom Tensions in Murder Trials and the Law
of Criminal Responsibility in 19 Century England,' Law and History Review, 17, 3
Martin Wiener, ‘Judges vs. Jurors.’
1. What is the purpose of Wiener’s article? What does he think that most historians
of 19th century English law missed in their research? Why does he think this is
important? Does his approach actually make a difference in how we understand
19th century English law?
2. According to Wiener, there was often a discrepancy between how early
19th century judges and juries viewed those accused of murder? Were
judges likely to more harsh or less harsh than juries in their assessment of
the accused? Why do you think this tension existed?
3. The 1837 trial of William Fisher reveals some of the tensions between judges
and juries. Why did the judge not believe that Fisher should have been found
guilty of the lesser charge of manslaughter? How do you think a court might
assess a similar case today?
4. In an 1837 trial, Justice Coleridge said that the law ‘considers man to be a
rational being, and requires that he should exercise a reasonable control over his
passions.’ (p. 483) What did he mean by ‘a reasonable control’?
5. In the murder cases Wiener describes in the mid to late 1800s, what comes to
constitute ‘provocation?’ Was a rude remark or gesture sufficiently provocative
to reduce the charge to manslaughter? Why not? What had changed?