Beyond Reasonable Doubt and Probable Cause: Historical by Barbara J. Shapiro

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By Barbara J. Shapiro

Dedicated to the heritage and improvement of 2 primary recommendations of Anglo-American legislation, this examine records the measure to which those key felony doctrines have advanced over the years, and the level to which they mirror a migration of evidentiary rules.

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52 In English Protestant casuistry each person was to be his own strictest judge. The judgment of conscience thus could not involve deferring to the authority or the wishes of another person. The language of judgment and judging pervades the writing of cases of conscience. William Perkins's Discourse of Conscience (1596) and his later Whole Treatise of the Cases of Conscience were designed as practical guides in resolving moral dilemmas. ''53 Its duty was to give both testimony and judgment. " Conscience functioned as "a little God sitting in the middle of men's hearts, arraigning them in this life as they shall be arraigned for the offenses" at the day of judgment.

Of course it would be better if we could also know a great deal more about what magistrates, judges, and juries actually did. What they said they did and ought to do was an important aspect of how the English and American people made and came to terms with their laweven apart from the possible light that what was said may shed on what was done. And there is some reason to believe that the saying did have some impact on the doing. So this book proceeds largely at the level of doctrine, not in the narrow sense of the legally authoritative, but in the broader sense of what was written about how the law was and should be.

Such assistance has also been provided by the Research Committee of the University of California, Berkeley, and by Kirsten Anderson, Rebecca Kidd, and Claudia Myers Pearce of the Department of Rhetoric. Norma Landau read the manuscript with great care and made many helpful suggestions. My greatest debt is to Martin Shapiro who has read, edited, commented on, and suffered with the manuscript in all its forms. This book would never have been completed without his assistance and support. Page xi Preface Given the long and rich tradition of legal and historical scholarship, there has been surprisingly little work devoted to the history of the Anglo-American law of evidence.

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