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1.
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“The miserable history of crime in England can be shortly told. Nothing
worth-while was created.”
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2.
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Criminal vs. civil
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a.
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Crime vs. tort (indictment vs. appeal, plea of the crown or not, felony
vs. trespass)
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b.
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Felony and forfeiture
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c.
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The decline of appeals of felony
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3.
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Indictment
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a.
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Coroners, assize of Clarendon (1166), assize of Northampton (1176)
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b.
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Ordeal replaced by petty jury after 1215, peine forte et dure, Bushel’s
Case (1670)
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c.
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Trial procedure
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d.
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Criminal courts
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4.
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Avoidance of punishment as a device for review.
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a.
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Pardons
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b.
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Sanctuary
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c.
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Benefit of clergy
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5.
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Change in substantive law
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a.
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Focus on the indictment
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b.
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Change by legislation
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c.
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If the law won’t change, the facts will
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i.
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Homicide and murder, societal and legal concepts.
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ii.
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1390, pardon statute on murder.
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iii.
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There aren’t that many walls in England, coroners’ verdict
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iv.
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The rise of jury trial as we know it, discussion by the judges seems to
have little effect
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v.
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16th c statute on clergyability
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vi.
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The role of the jury in the later period, the political cases
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vii.
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Larceny cases (the goods are worth 11 pence).
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6.
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Hay vs. Langbein
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a.
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The evidence
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i.
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The liturgical function of the criminal process
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ii.
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Justice and technicality
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iii.
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Prosecutorial discretion
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iv.
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Jury discretion
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b.
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Pardons
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c.
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The overall thesis. For Langbein the process is given. No police,
parliament, trial court with judge and jury and no lawyers and the
possibilities of pardoning. Granted that process and those actors a body of
rigid rules will be mitigated at every level by the participants in the
process. Langbein’s underlying assumption is that the law was bad, everyone
knew it and they did their best. Hay gives a much darker picture. He can be
faulted for jury and pardons and the argument about justice. The question
is there anything left? Yes, the
liturgical, the JP’s in the countryside, the fact that this is a
discretionary system. Need it have been that way? Probably not, see France.
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