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English Constitutional History: The Role of the Judiciary and Criminal Law, Slides of History

Institute of Company Secretaries of IndiaHistory

The role of the judiciary in the english constitution, focusing on its limited power to declare statutes unconstitutional and the concept of parliamentary supremacy. It also delves into the history of criminal law, from the anglo-saxon period to modern times, discussing various aspects such as initiation of prosecution, trial processes, and punishment methods. The document also covers significant cases like the ship money case and wilkes v wood, as well as the impact of the european convention on human rights.

Typology: Slides

2012/2013

Uploaded on 01/29/2013

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Judiciary and English Constitution
•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
•Parliamentry 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
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Judiciary and English Constitution

  • 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
    • Parliamentry 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 insteadDocsity.com

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 Docsity.com

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 SupremacyDocsity.com

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

Criminal Law. Key Issues

  • What is a crime?
    • Will focus on felony -- homicide, theft,
  • How is criminal prosecution initiated?
    • Private prosecution, public prosecution…
  • How is criminal accusation proved?
    • Ordeal, jury…
  • What punishments are imposed?
    • Compensation, death penalty, imprisonment…
  • What protections are there for the accused?
    • Jury, Miranda warnings

Criminal Law in Anglo-Saxon Period I

  • Main source is Codes -- Very little information on practice
  • Initiation of prosecution
    • feud?
    • Private prosecution?
    • Communal accusation from 11th^ century?
  • Trial
    • Compurgation – Defendant acquitted if 12 oath helpers swear to defendant’s innocence
    • Ordeal – hot iron and cold water
  • Punishment was primarily financial
    • Criminal paid
      • Bot -- Compensation to victim
        • Wergild, if homicide
      • Wite – fine to king
      • Bot and wite varied with social status
    • Starting in 10th^ century, compensation becomes rarer
      • mutlilation or death, fines to king, become predominant
  • Protection for accused
    • Compurgation, weak state

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 14 th^ century
      • Enforce legislation
      • Act as judges in trials of non-felonies
    • Local, unpaid notables (not full time or lawyers)
    • Starting in 16 th^ 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

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

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 Docsity.com

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^ & 13 th^ centuries), every few years
  • Professional judges
  • Uniform law
  • Consistent record keeping
    • Means we know a lot more about law starting in late 12 th^ century
  • Attempt to reduce benefit of clergy (1164)
  • Assizes of Clarendon (1166). Presentment

Trial by Jury

  • In 1215, 4 th^ 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

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

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?

    1. What topics, institutions or doctrines

discussed in class are illustrated in this case?

    1. What did you learn that was new, interesting

or surprising from this case?

    1. What, if anything, confused you about this

case?

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?