6th Class

1
6th Class

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• Wickard v. Filburn
• Criminal Law Procedure
• Later Middle Ages
• Appeal
• Presentment
• Jury Trial
• Benefit of Clergy
• Early Middle Ages
• Bot, wergild, wite

2
Review I Marbury v Madison

• Established idea that federal courts can declare
  Act of Congress unconstitutional
• No clear textual support in the Constitution
• But plausibly implicit in the idea that
  Constitution is law
• And that Constitution was meant to limit
  legislative power
• Brilliant political move, because Marshall
  established this principle in a case where the
  outcome was welcomed by both the executive and
  legislative branches
• Note. public minister means diplomat

3
Review II Enforcement of US Constitution

• It is sometimes said that the Constitution is
  today largely enforced by courts
• But that just begs the question of why court
  judgments are respected
• Federalist papers argued that Constitution would,
  in part, be enforced by threat of armed rebellion
  by the states
• Less plausible after Civil War
• Alternative mechanisms of enforcing the
  Constitution
• U.S. military
• Armed citizenry
• Civil disobedience

4
U.S. Constitution Amendment

• Akshay correct
• 21st amendment ratified by constitutional
  conventions in states, not state legislatures
• Convention procedure in states can be coupled
  with proposal by Houses of Congress
• Method used in nearly all amendments so far
• Amendment approved by 2/3rds vote of both Houses
  of Congress
• AND ratified by legislatures of 3/4ths of states
• Other options
• Amendment proposed by Constitutional Convention,
  convened by 2/3rds vote of both Houses of
  Congress
• Ratification by constitutional conventions in
  3/4ths of states

5
Wickard v Filburn

• 1) What is the holding or ratio decidendi?
• Under the Commerce Clause, Congress may pass a
  statute which regulates an activity, if the
  activity.
• 2) Which of the following statutes are
  constitutional exercises of Congresss power
  under the Commerce Clause?
• a) No factory in one state which produces goods
  sold in another state may employ a worker for
  more than 8 hours per day.
• b) No inn, hotel, motel, or other establishment
  which provides lodging to transient guests may
  discriminate on the ground of race, color,
  religion, or national origin.
• c) A state which receives federal highway funds
  must prohibit the sale of alcoholic beverages to
  persons under 21 years of age.
• c) No person may possess a firearm within 1000
  feet of a school.
• d) No person may kill or disturb the habitat of
  an an animal which is an endangered species.

6
Civil War Amendments

• XIII. 1. Neither slavery nor involuntary
  servitude, except as a punishment for crime
  whereof the party shall have been duly convicted,
  shall exist within the United States, or any
  place subject to their jurisdiction.
• 2. Congress shall have power to enforce this
  article by appropriate legislation.
• XIV. 1. All persons born or naturalized in the
  United States are citizens of the United States
  and of the State wherein they reside. Nor
  shall any State deprive any person of life,
  liberty, or property, without due process of law
  nor to deny to any person within its jurisdiction
  the equal protection of the laws.
• 5. The Congress shall have the power to enforce,
  by appropriate legislation, the provisions of
  this article.
• XV. 1. The right of citizens of the United
  States to vote shall not be denied or abridged by
  the United States or by any State on account of
  race, color, or previous condition of servitude.
• 2. The Congress shall have the power to enforce
  this article by appropriate legislation.

7
Incorporation of Bill of Rights

• Before the Civil War,
• The Bill of Rights applied only to the federal
  government
• A state could abridge the freedom of speech or
  impose cruel and unusual punishment, without
  violating the U.S. Constitution
• Although doing so might violate the state
  constitution
• In the late 19th and early 20th century, the US
  Supreme Court interpreted the due process
  clause of the 14th Amendment as applying most of
  the Bill of Rights to the states
• So a state which abridged the freedom of speech
  or imposed cruel and unusual punishment would
  violate the U.S. Constitution
• Reasoning easy for procedural protections
• Jury trial in criminal cases, double jeopardy,
  self-incrimination
• Conviction in violation would be denial of due
  process
• More problematic for substantive protections
• 1st amendment,
• Exceptions
• E.g. right to jury trial in civil cases (7th
  Amendment), right to grand jury (5th Amendment),
  9th and 10th Amendments.
• 2nd Amendment (Right to bear arms) and 3rd
  Amendment (Quartering soldiers) unclear

8
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

9
Criminal Law. Sources

• Klerman, Settlement and the Decline of Private
  Prosecution in Thirteenth-Century England, 19
  Law and History Review 1 (2001)
• www.klerman.com, Downloadable Papers button
• Klerman, Was the Jury Ever Self-Informing?, 77
  Southern California Law Review 123 (2003)
• www.klerman.com, Downloadable Papers button

10
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

11
Presentment

• Assize of Clarendon (1166)
• 12 men from each hundred required to attend eyre
  and report on oath who suspected of crime
• Assisted by 4 men and reeve from each village
• The jurors present that John stole a sheep from
  Richard
• self-informing jury
• No testimony in court
• Jurors based verdict on prior investigation,
  rumors, reputation, information provided by 4 men
  and reeve from villages
• Those accused tried by ordeal
• Jury trial after 1218
• Those convicted were hanged
• Some evidence of presentment from 1000

12
Trial by Jury

• In 1215, 4th 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

13
Benefit of Clergy

• Church claimed that clerics were immune from lay
  trial and punishment
• Had own system of justice for criminous clerks
• Henry II (1164) tried to change
• Led to conflict and murder of Thomas Becket
• Later medieval practice (13th century onward)
• Clerk accused in royal court
• Ordinary (church official) claims defendant as
  cleric
• Jury renders (nonbinding) verdict
• Guilty clerk handed over to ordinary for
  punishment and possibly retrial in ecclesiastical
  court
• 14th century reading test for clergy

14
Criminal Law in Anglo-Saxon Period I

• Main source is Codes -- Very little information
  on practice
• Crimes -- primarily homicide, bodily injury,
  theft
• Initiation of prosecution
• Privately by feud?
• Communal accusation from 11th century?
• Trial
• Compurgation Defendant acquitted if 12 oath
  helpers swear to defendants 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

15
Criminal Law in Anglo-Saxon Period II

• Ethelberts Code (600)
• 34. If there be an exposure of the bone, let bot
  be made with 3 shillings.
• 35. If there be an injury to the bone, let bot be
  made with 4 shillings.
• 36. If the outer hion outer membrane covering
  the brain be broken, let bot be made with 10
  shillings. Yikes!
• 37. If it be both outer and inner membranes
  covering the brain, let bot be made with 20
  shillings. You could survive this in the 7th
  century?
• 38. If a shoulder be lamed, let bot be made with
  30 shillings.
• 39. If an ear be struck off, let bot be made with
  12 shillings.
• 40. If the other ear hear not, let bot be made
  with 25 shillings.
• 54. If a thumb be struck off, 20 shillings. If a
  thumb nail be off, let bot be made with 3
  shillings. If the shooting fore finger be
  struck off, let bot be made with 8 shillings. If
  the middle finger be struck off, let bot be made
  with 4 shillings. If the gold ringfinger be
  struck off, let bot be made with 6 shillings. If
  the little finger be struck off, let bot be made
  with 11 shillings.

16
Henry II Criminal Law

• 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 13th centuries), every 2-20 years
• Later -- assizes, jail delivery. 2x per year
• Professional judges
• Uniform law
• Consistent record keeping
• Means we know a lot more about law starting in
  late 12th century