4th Class

1. 4th Class • Slides • Attendance sheet • Audio recording on • Agenda • Review • Throckmorton • Defendants’ Rights • Treason Act of 1696 • Defense Counsel • Self-Incrimination • Punishment • Transportation • Imprisonment • 48 hour take home exam, April 16-18 • Next class: Property Cases (print them out)

2. Review I:Rex v Hugh • Illustrates important institutions • Self-informing jury • Presentment • Trial. No evidence presented at trial • No necessary contradiction between presentment and acquittal • Presenting jury supposed to present all who are suspected, even if they do not believe suspect is guilty • Benefit of clergy • Hugh was denied benefit of clergy, even though ordinary claimed him, because jury said he was a bigamist (e.g., had married widow) • Juror challenges • Hugh successfully challenged members of the jury for three reasons – membership in the presenting jury, lack of knightly status, and perhaps bias • “for cause” challenges, not “peremptory challenges” • Rare in Middle Ages • Hugh exceptionally well informed. • Most defendants did not know their rights • Finish Smith, De Republica Anglorum

3. Throckmorton– Political Background I • Queen Mary’s decision to marry Philip of Spain was very unpopular • Phillip was Hapsburg, son of Emperor Charles V, ruler of Spain, Netherlands, Germany • Fear of entanglement in continental war, taxes • Hatred of Catholics • Pure xenophobia • Fear that Spaniards would get good government jobs • Commons asked her to reconsider, but she refused • Only possibility was rebellion • Rebellion would require deposition of Mary, substitution of Elizabeth • Multi-pronged rebellion planned • Assaults on London from West and south (Kent) • But word got out, so rebellion had to be started prematurely • Rebellion from West never really got under way • Wyatt marched army from Kent to London, • Demanded custody of Tower • Turned back when it looked like Londoners might fight • Very little bloodshed, but nearly toppled Mary, • No standing army

4. Throckmorton– Political Background II • Throckmorton • Son of knight, knighted himself in 1551 by Eward VI • Probably involved in planning rebellion • Did not actually take part in rebellion • But might have been involved in uprising in West, if rebellion had not started prematurely • Rebellion resulted in many prosecutions • Mary would have liked to have gotten Elizabeth, • But conspirators preserved her plausible deniability • A few dozen hangings, mostly of those actually fighting • Including Wyatt • Many pardons

5. Regina v. Throckmorton (1554) • 1) How do the procedural aspects of the trial differ from those described by Smith? Why? • 2) How is the trial different from a modern criminal trial? • 3) How is it similar? • 4) How reliable do you think the report is? What evidence can you marshal to support your view?

6. Throckmorton – Dramatic Reading • Larger parts • Throckmorton, defendant, accused of treason • Bromley, judge (Chief Justice of England) • Narrator • Stanford, serjeant • Attorney [General] • Smaller parts • Hare, Judge (Master of Rolls) • Shrewsbery, Judge (Earl, member Privy Council) • Southwell, Judge (member of Privy Council) • Chomley, Judge • Sendall, clerk • Dyer, serjeant • Vaughan, Fitzwilliams. witnesses • Whetson. Jury foreman; Everyone one else is rest of jury • Staging • Judges to one side of table; Clerk, to side; jury to other side; serjeants, Attorney, Throckmorton, facing judges; Vaughn & Fitzwilliams, approach when called

7. Political Trials of 16th & 17th Centuries • Political turmoil of period led to politically tinged trials • Different from ordinary trials • Lawyers for prosecution • High status defendants • Biased judges • Some acquittals but also some notoriously unjust convictions • Brings problems with criminal trial to attention of Parliament

8. Treason Act of 1696 • Act restricted to those accused of treason • Pretrial • copy of indictment 5 days in advance • list of jurors • right to consult freely w/ counsel • Trial • right to present witnesses on oath • compulsory process for witnesses • counsel to make defense • Rights extended by judges to other defendants in 18th & 19th c. • Not in Act • Self-incrimination • regulation of evidence / exclusionary rules (19th & 20th centuries) • judicial independence (1701) • right of accused to testify under oath (19th century

9. Right Against Self-Incrimination • 3 phases in development • I. Right not to accuse self (medieval) • Right developed in canon law (ecclesiastical law) as part of inquisitorial procedure • Distinction between confession (self-accusation) and inquisition (accusation & questioning by judge) • Inquisition permissible only if “mala fama,” credible witnesses or suspicion of crime • Not relevant to ordinary criminal trial, because 14th century statutes interpreting Magna Carta require indictment or appeal • II. Right not to answer incriminating questions under oath (early modern) • Defendant’s statement to Justice of Peace not under oath • Defendant’s testimony at trial not under oath • III. Right to remain silent (modern) • Possible only when defendants have lawyers

10. Mitigation of Death Penalty • Pardon • Jury Nullification • “pious perjury”. Valuing stolen goods at less than 1s, so not capital • Benefit of Clergy • By early modern period, Benefit of Clergy meant no punishment • Church no longer punished • 17th c. Many offenses made ineligible – murder, pickpocketing, theft from dwelling over 40s… • 1690 extended to women • 1706 reading test eliminated • Everyone could claim benefit of clergy once • 1718 transportation for those claiming benefit of clergy • By 1720, half of convicts transported

11. Imprisonment • Before late 18th century, jails used for • Pretrial detention • Pre-execution detention • Insolvent debtors • Punishment of minor crime with short sentences • NOT punishment of felony • Prisons • Start being used for punishment in late 18th century in both England and US • England – American Revolution • US - decline in effectiveness of pillory and other shaming penalties • 3 theories • Penance • Reform / rehabilitation • Work • Prisons are very expensive • Not feasible before modern period

12. Homicide rates in England, 1200-2000 Monkkonen, Homicide: Explaining America's Exceptionalism, AHR Forum