Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries

1991 ◽  
Vol 9 (2) ◽  
pp. 221-267 ◽  
Author(s):  
J. M. Beattie
Keyword(s):  
Eighteenth Century ◽  
Professional Training ◽  
Common Law ◽  
Criminal Trial ◽  
Criminal Courts ◽  
Defense Counsel ◽  
Trial Procedure ◽  
Eighteenth And Nineteenth Centuries ◽  
The Right

My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

Common Law Confrontations

2019 ◽  
Vol 37 (03) ◽  
pp. 763-786
Author(s):  
Bernadette Meyler
Keyword(s):  
Eighteenth Century ◽  
New Jersey ◽  
Supreme Court ◽  
Common Law ◽  
Criminal Courts ◽  
Original Meaning ◽  
Late Eighteenth Century ◽  
The Supreme Court ◽  
Late Eighteenth ◽  
The Common

This symposium essay contends that the image of the common law drawn by the Supreme Court in the Confrontation Clause context is both distorted and incomplete. In particular, the Court and scholars defending originalist positions rely almost entirely on English sources in their reconstruction of the common law basis for the Confrontation Clause, thereby neglecting the diversity of American common laws from the time of the Founding, a diversity that has already been unearthed by a number of legal historians. By drawing on hitherto untapped sources to furnish a bottom-up reconstruction of how testimony was treated in local criminal courts within mid- to late-eighteenth-century New Jersey, this essay demonstrates that, in at least some jurisdictions, the originalist vision of common law did not apply. The common law cannot, therefore, furnish a univocal answer to questions about the original meaning of the Confrontation Clause.

Liberty and the Common Law

1945 ◽  
Vol 9 (1) ◽  
pp. 2-16 ◽  
Author(s):  
Lord Wright
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Civil Law ◽  
The State ◽  
Roman Law ◽  
Case System ◽  
The Common ◽  
The Law ◽  
The Individual ◽  
The Right

In preparing the few and elementary observations which I am about to make to you tonight I have wondered if the title I chose was apt or suitable. The Common Law is generally described as the law of liberty, of freedom and of free peoples. It was a home-made product. In the eighteenth century, foreign lawyers called it an insular and barbarous system; they compared it to their own system of law, developed on the basis of Roman and Civil Law. Many centuries before, and long after Bracton's day, when other civilised European nations ‘received’ the Roman Law, England held back and stood aloof from the Reception. It must have been a near thing. It seems there could have been a Reception here if the Judges had been ecclesiastics, steeped in the Civil Law. But as it turned out they were laymen, and were content as they travelled the country, and in London as well, to adopt what we now know as the Case System, instead of the rules and categories of the Civil Law. Hence the method of threshing out problems by debate in Court, and later on the basis of written pleadings which we find in the Year Books. For present purposes, all I need observe is that the Civil Lawyer had a different idea of the relation of the state or the monarch to the individual from that of the Common Lawyer. To the Civil or Roman Lawyer, the dominant maxim was ‘quod placuit principi legis habet vigorem’; law was the will of the princeps. With this may be compared the rule expressed in Magna Carta in 1215: No freeman, it was there said, was to be taken or imprisoned or exiled or in any way destroyed save by the lawful judgment of his peers and by the law of the land. Whatever the exact application of that phrase in 1215, it became a text for fixing the relations between the subject and the State. Holdsworth quotes from the Year Book of 1441; the law is the highest English inheritance the King hath, for by the law he and all his subjects are ruled. That was the old medieval doctrine that all things are governed by law, either human or divine. That is the old doctrine of the supremacy of the law, which runs through the whole of English history, and which in the seventeenth century won the day against the un-English doctrine of the divine right of Kings and of their autocratic power over the persons and property of their subjects. The more detailed definition of what all that involved took time to work out. I need scarcely refer to the great cases in the eighteenth century in which the Judges asserted the right of subjects to freedom from arbitrary arrest as against the ministers of state and against the validity of a warrant to seize the papers of a person accused of publishing a seditious libel; in particular Leach v. Money (1765) 19 St. Tr. 1001; Entick v. Carrington (1765) 19 St. Tr. 1029; Wilkes v. Halifax (1769) 19 St. Tr. 1406. In this connexion may be noted Fox's Libel Act, 1792, which dealt with procedure, but fixed a substantive right to a trial by jury of the main issue in the cases it referred to.

Wronged in Her Dearest Rights: Plaintiff Wives and the Transformation of Marital Consortium, 1870–1920

2013 ◽  
Vol 31 (1) ◽  
pp. 61-99
Author(s):  
Kimberley A. Reilly
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Third Parties ◽  
Legal Action ◽  
Legal Remedies ◽  
Legal Identity ◽  
Right Of Action ◽  
The Common ◽  
Hierarchical Nature ◽  
The Right

In 1871, Mary Ann Harlan brought an unprecedented suit against her neighbors, Elliot and Mary Clark, before the Superior Court of Cincinnati. She alleged that they had “wrongfully and maliciously enticed away” her husband, Robert Harlan, from their home, thus depriving her of Robert's “society, protection, and support.” The common law had long given husbands the right of action to sue third parties who enticed away, harbored, alienated the affections of, or seduced their wives. In these types of marital torts, a husband sought damages for the loss of his wife's “consortium,” a term that expressed his property in her services and society. At the time of Mary Ann's suit, however, wives had no such reciprocal right. In part, this was an outcome of the common law doctrine of marital unity, or coverture, under which a wife's legal identity was merged into that of her husband upon marriage. Unable to sue or be sued, she had to be joined by him in a legal action. Courts were hardly amenable to the idea of allowing husbands to join in suits involving their own marital transgressions, where they would stand to profit from their misdeeds if any damages were awarded. More fundamentally, however, the limitation of wives' access to legal remedies was an expression of the hierarchical nature of marital unity. No less an authority than eighteenth-century English jurist William Blackstone, the most influential expositor of the common law, put the reason plainly: “the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury.” According to this theory, a wife was not barred from bringing such a suit simply because of her legal disabilities under coverture; as a subordinate in the marriage relation, she lacked any reciprocal claim to her husband's society. Mary Ann's case, then, hinged on whether she had the right to bring her suit.

Trial Procedures in Response to Terrorism

2019 ◽  
pp. 651-678
Author(s):  
Nicola McGarrity
Keyword(s):  
Executive Control ◽  
Procedural Fairness ◽  
Executive Branch ◽  
Criminal Trial ◽  
Presumption Of Innocence ◽  
Criminal Courts ◽  
Legal Representation ◽  
Trial Procedure

This chapter examines trial procedures aimed at preventing and responding to terrorism, focusing on the influence of the executive branch of government upon terrorism prosecutions. It first provides an overview of the various fora in which a terrorism trial might be held, namely, trials conducted before the ordinary civilian criminal courts, specialist civilian terrorism courts, and military courts. It then considers the different categories of individuals and entities who might be tasked to decide the question of guilt or innocence, with emphasis on the abolition of trial by jury in favor of trial by judge alone. It also analyzes some of the modifications made to criminal trial procedure and the consequences of these in terms of executive control of the trial proceedings, taking into account open justice, access to legal representation, presumption of innocence, and procedural fairness.

Understanding Justice: Criminal Courtroom Interpretation in Eighteenth-Century London and Twenty-First-Century Toronto1

2008 ◽  
Vol 20 (2) ◽  
pp. 271-299
Author(s):  
Karen A. Macfarlane
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Immigrant Population ◽  
First Century ◽  
Presumption Of Innocence ◽  
Legal Counsel ◽  
The Right ◽  
Law Of Evidence ◽  
Criminal Courtroom ◽  
Trial Participants

Abstract This paper compares criminal courtroom interpretation in present-day Toronto with eighteenth-century London. Eighteenth-century London, like Toronto, was home to a large immigrant population, and faced similar challenges. This article argues that expedience was the most important factor in shaping eighteenth-century criminal courtroom interpretation. The right to an interpreter is now a constitutional and common law right. Modern defendants enjoy greater protections, such as the developments of the presumption of innocence, the law of evidence, and the right to legal counsel. However, the attitudes of many Anglophone trial participants remain unchanged and negatively affect defendants who use interpreters.

scholarly journals Media reporting and respect of human rights in criminal procedure

Temida ◽  
2005 ◽  
Vol 8 (4) ◽  
pp. 23-26 ◽  
Author(s):  
Natasa Mrvic-Petrovic
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Fair Trial ◽  
Access To Information ◽  
Negative Consequences ◽  
Criminal Courts ◽  
Restricted Access ◽  
Media Reporting ◽  
Trial Procedure ◽  
The Right

In this paper the cases from the practice of criminal courts in Serbia during 2004 are analyzed. On the basis of findings from monitoring of trials the author argues that incorrect media reporting has negative consequences on the right to fair trial political manipulation of media and biased and sensationalistic reporting are stressed. As a possible solution the author suggests education and restricted access to information during pre-trial procedure.

Investigating judge as a new figure in the Kyrgyz Republic criminal procedure

2020 ◽  
Vol 2020 (3) ◽  
pp. 140-147
Author(s):  
Sof'ya Shestakova ◽  
Uulzhan Imanalieva
Keyword(s):  
Criminal Procedure ◽  
Comparative Perspective ◽  
Kyrgyz Republic ◽  
Trial Procedure ◽  
Judicial Control ◽  
Legal Model ◽  
Integral Element ◽  
The Right ◽  
Conceptual Foundations ◽  
Former Soviet Republics

The article iis devoted to the research of the institution of investigative judge introduced into the criminal procedure of the Kyrgyz Republic in 2019. The authors analyze the conceptual foundations of this institution, its procedural significance, as well as the legal model under Kyrgyz legislation in its comparative perspective with the legislation of Germany and some former Soviet republics. Two main achievements: the organizational and functional isolation of an investigating judge during the criminal procedure and granting them the power of deposition are seen by the authors as advantages of the Kyrgyz model of the institution of an investigative judge. The former is aimed at guaranteeing the objectivity, impartiality and neutrality of the judge considering the case on the merits, who is discharged judicial control in pre-trial procedure nowadays. The latter is aimed at implementing for the prosecution and defense the right to be equal parties of procedural opportunities to participate in evidence as an integral element of the adversarial principle.

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