Evolution of legal system and rights
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EVOLUTION OF LEGAL SYSTEM AND RIGHTS. THE ANGLO-AMERICAN LEGAL TRADITION. ACCUSATORIAL SYSTEM. In Anglo-Saxon England: No distinction between civil and criminal cases One party accused the other at a meeting of the entire community.

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Evolution of legal system and rights



Accusatorial system

  • In Anglo-Saxon England:

  • No distinction between civil and criminal cases

  • One party accused the other at a meeting of the entire community.

  • Community judged how it should be resolved: compurgation, ordeal, battle

Importance of oaths

  • Clergy were involved in all trials

  • Oaths taken dead seriously as one would endanger one’s soul by breaking one.

  • Compurgation: sworn statement supported by oaths of a # of fellow swearers to their knowledge of the truth of claim. Today: character witnesses.

Medieval trials for serious crimes
MEDIEVAL TRIALS for serious crimes

  • Trial by Ordeal

  • If your wound

    was healing

    cleanly after 3

    days you were

    considered not


The adversary system

  • Trial by battle was originally a fight between the two parties involved. Sometimes a sworn witness could prove the case of a party; sometimes it was real combat.

  • Gradually, champions were hired to fight for parties who could not fight for themselves.

  • Today, they’re lawyers who fight each other with words and evidence to win the case.

Norman conquest reorganization and some new practices but basically adapted saxon legal customs
NORMAN CONQUEST – Reorganization and some new practices, but basically adapted Saxon legal customs

  • Hundreds – Hundred families.

  • Shires – counties

  • Circuits – courts moved from place to place within the shire. Court called an “eyre.”

  • Outlaw – a person outside the “law”

JURIES but basically adapted Saxon legal customs

  • Took place of community meeting. Originally, decided on what kind of trial should be held.

  • Word comes from Latin “juris” meaning ‘law.’

  • Issued a “presentment” which decided if a crime was committed and what kind of trial would be held. This later became the grand jury.

Constitutions of clarendon
CONSTITUTIONS OF CLARENDON but basically adapted Saxon legal customs

  • King Henry II – 1154-1189

  • 1169-Established use of juries of twelve knights from the locality to decide verdicts in property disputes.

  • Institutionalized England’s accusatorial legal customs

Juries continued
Juries continued but basically adapted Saxon legal customs

  • Catholic Church outlawed clergy participation in trial by ordeal in 1215. Effectively ended trials by ordeal.

  • That left trial by battle. That evolved into the two sides arguing the case out in front of a jury. Twelve peers of accused became the standard.

  • #12 may have roots in England, among Normans or from Islamic North Africa and Spain where there were also 12-man sworn juries.

  • By 1400s juries were interviewing witnesses and helping to solve cases.

Jury verdicts
JURY VERDICTS but basically adapted Saxon legal customs

  • Verdict means “to speak the truth.”

  • Juries represented the entire community and were considered to be its “voice.”

    Therefore they had to speak with one voice, so verdicts had to be unanimous.

Throckmorton and bushell cases
Throckmorton and Bushell Cases but basically adapted Saxon legal customs

  • In 1554, Sir Nicholas Throckmorton tried for treason. Despite no advance preparation of his case he defended himself and was acquitted.

  • All 12 jurors put in jail, but released after six months.

  • Established principle that juries should not be punished for their decisions.

The case of edward bushell
The Case of Edward Bushell but basically adapted Saxon legal customs

  • In 1670, Quakers William Penn and William Mead were tried for preaching unlawfully to a crowd in London and refusing to remove their hats as a mark of respect.

  • Mead refused to answer questions about whether he was there (self-incrimination).

  • Jury found them guilty of “speaking.” Court tried to force them to change the verdict; instead, they acquitted Penn and Mead.

  • Court fined the jury but Edward Bushell and 3 other jurors appealed the fines.

  • Higher Court held that a jury could not be punished for its verdict.

    Confirmed principle of jury freedom from punishment.

Jury nullification
JURY NULLIFICATION but basically adapted Saxon legal customs

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged.  The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

  • Example: Northern juries refusing to prosecute people accused of harboring fugitive slaves before the Civil War.

  • Juries can judge not only the case but the law that they’re asked to apply.

Use of torture
USE OF TORTURE but basically adapted Saxon legal customs

  • English judges and English common law believed torture to extract a confession was wrong. However…..

  • The king could order torture in certain cases, and….

  • It was a custom that if a person refused to plead innocent or guilty, they could be alternately starved and minimally fed, then have pieces of iron piled on them until they made a plea.

  • Overall, though, regular use of torture was abhorred in English law.

Right of habeas corpus
RIGHT OF HABEAS CORPUS but basically adapted Saxon legal customs

  • “We command you to have the body”

Magna carta great charter

Makes King subject to law but basically adapted Saxon legal customs

1215, King John forced to sign by nobles and bishops

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.


More from magna carta
More from Magna Carta but basically adapted Saxon legal customs

  • 38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

  • + (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

  • + (40) To no one will we sell, to no one deny or delay right or justice.

  • (45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.

The inquisition
THE INQUISITION but basically adapted Saxon legal customs

  • Established in 1200s by Pope to root out heretics

  • Investigation by a panel of judges, usually clergy

  • Had to swear to tell the truth to any question without knowing what you were accused of.

  • Confession was the objective, to save the soul of the accused.

  • Torture allowed as long as no blood was shed.

Accusatorial system vs inquisition

Courts held in public but basically adapted Saxon legal customs

Oral combat before a jury of peers

Jury has the final say; judge is neutral

Confrontational; named witnesses

Specific charges spelled out in indictment by grand jury

Innocent until proven guilty

Discouraged use of torture.

Evidence made public

No double jeopardy

Did not have to testify against oneself.

Proceedings secret

Official prosecution by a judge

Guilt was assumed

Witnesses against the accused not identified

Routinely used torture to extract confessions

Questioning done secretly

Suspect could be retried indefinitely

Used self-incriminating oath

Accusatorial System vs. Inquisition

The star chamber
THE STAR CHAMBER but basically adapted Saxon legal customs

  • A secret court of the King’s Privy Council

  • Could rule on cases outside common courts

  • Could impose any penalty ex. Death

  • No jury, no appeals

  • People made to testify against themselves

  • A way for king to get rid of powerful enemies.

Petition of right 1628
PETITION OF RIGHT -1628 but basically adapted Saxon legal customs

  • A list of grievances to King Charles I

  • . Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law.

  • VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm, and to the great grievance and vexation of the people.

English bill of rights
ENGLISH BILL OF RIGHTS but basically adapted Saxon legal customs

  • 1689

  • Follows abdication of King James II in “Glorious Revolution”

  • Meant to confirm liberties abused by the King

  • Assent of new King William and Queen Mary meant they agreed to rule of law. Swore they would obey laws of parliament

  • Ended concept of “divine right of kings” in England

William iii and james ii
WILLIAM III and JAMES II but basically adapted Saxon legal customs

Excerpts how many in our bill of rights
EXCERPTS but basically adapted Saxon legal customsHow Many in Our Bill of Rights?

  • That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

  • That the pretended power of dispensing with laws, or the executions of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

  • That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious.

  • That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.

  • That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.

  • That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

  • That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.

  • That election of members of parliament ought to be free.

  • That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

  • That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

  • That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials of high treason ought to be freeholders.

  • That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

  • And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliaments ought to be held frequently.

Courts and court officials
COURTS and Court Officials but basically adapted Saxon legal customs

  • Physical elements of a court:

  • Bench

  • Bar

  • Jury box

  • Witness stand

The coroner
THE CORONER but basically adapted Saxon legal customs

  • The Coroner's main duty is investigating deaths of individuals who die suddenly in a suspicious manner, in a public place or at work, without benefit of a doctor's care, in custody, or because of trauma, mechanical means or violence.

The crowner coroner
THE CROWNER (CORONER) but basically adapted Saxon legal customs

  • Originally, coroner (“crowner”) decided who was dead, whether they died violently and whether they were Norman or Saxon. He held an inquest that required all males over twelve from four surrounding towns to attend, later cut down to a jury of twelve. The community had to prove the victim wasn’t a Norman, otherwise whole community had to pay a “murdrum” fine.

  • Today, the coroner investigates and certifies cause of death.

Today dr henry lee
TODAY – Dr. Henry Lee but basically adapted Saxon legal customs

The sheriff
THE SHERIFF but basically adapted Saxon legal customs

  • Top local official was the Reeve – a serf elected by other serfs. He mediated disputes and made sure no one cheated the lord. He represented the lord’s interests. Similar to modern justice of the peace.

  • Reeve of a whole shire was:

  • Appointed by King

  • Issued writs and captured wrongdoers

  • “Shire reeve” became “Sheriff

  • Now usually an elected office.