2. Extraordinaria crimina, crimes for which no special procedure
or punishment was provided: the punishment being,
within limits, left to the discretion of the judge and the
prosecution to the injured party.
3. Privata delicta, offences for which a special form of action was open to the injured party, e.g. actio furti.
The multiplicity of tribunals under the republic was replaced under the empire by a complete organization of the judiciary throughout the districts (dioceses) under the supervision of the emperor in his privy council (see Maine, Ancient Law, ed. 1906, p. 393). Public prosecution under the empire began by arrest of the accused, who was taken before an eirenarcha, who examined him (by torture in the case of a slave or parricide) and sent him on for trial before the praeses of the diocese (διοίκησις). Private prosecution followed, a procedure closely resembling that of civil actions, beginning with citatio (summons), followed by libellus or accusation, and appointment of a day for hearing. The right of either party to call witnesses was very imperfectly established.
The early laws of the Celtic races are preserved as to Wales in the laws of Hywel Dda, and as to Ireland in the Book of Aicill and other Brehon law tracts, which are professional collections of precedents and formulae madeCeltic law. by the hereditary law caste (Brehons), whose business it was “to pass sentence from precedents and commentaries.” (See Brehon Laws.) The development of Celtic law was arrested by the Saxon and Anglo-Norman conquest: but the materials preserved indicate an origin common with that of Germanic law.
The special characteristics of Irish criminal law, if it can be so called, were:—
1. The law was customary and theoretically unchangeable, and no legislative or judicial authority existed to alter or enforce it.
2. All crimes were treated as wrongs, for which compensation was made by assessment of damages by a consensual tribunal whose power to make awards depended on submission of the parties and the ultimate sanction of public opinion or custom. A customary tariff for compensation existed for all offences from wilful murder downwards. No crime was unamendable. The Irish law recognized a body price or compensation (S. bot) and an honour price or eric (S. wer), for which the family or tribe of the offender was collectively liable; but there is no clearly ascertained equivalent to the Saxon wite, or fine to the chief.
The laws of the Germanic tribes, so far as preserved in the Germania of Tacitus, and in the compilations of customs known as the Salic and Ripuarian laws, the Leges Barbarorum, the Dooms of Æthelberht and the collections ofGermanic law. Anglo-Saxon law and custom (to be found in Thorpe’s Ancient Laws and Institutes of England), do not indicate any adequate or definite division between crimes and causes of civil action, but, like the laws of Babylon, recognize the system and contain the tariffs of compensation for wrongs. The idea of the compensation was originally to put an end (finis) to blood feuds and private war or vengeance.
These laws formed the foundation of the criminal law of Germany, including the Netherlands, of England and of Scandinavia. But in each country the development of criminal law has been affected by influences other than Germanic, mainly consisting in an infusion more or less great of ideas derived from Roman law. In England under Alfred some part of the Levitical law (Exod. xxi. 12-15) was incorporated, just as in 1567 the criminal law as to incest in Scotland was taken bodily from Leviticus xviii.
The stage which the development of criminal law had reached in England by the reign of Edward the Confessor is thus described by Pollock and Maitland (Hist. Eng. Law, ii. 447): “On the eve of the Norman Conquest what we may call Anglo-Saxon law. the criminal law of England (but it was also the law of torts or civil wrongs) contained four elements which deserve attention: Its past history had in the main consisted of the varying relations between them. We have to speak of outlawry, of the blood feud (faidus), of the tariffs of wer and wite (fredus or friede), and bot, of punishment in life and limb. As regards the malefactor the community may assume one of four attitudes: it may make war on him; it may have him exposed to the vengeance of those whom he has wronged; it may suffer him to make atonement; it may inflict on him a determinate punishment, death, mutilation or the like.” The wite or sum paid to the king or lord is now thought to have been originally not a penalty but a fee for time and trouble taken in hearing and determining a controversy. But at an early stage fines for breach of peace were imposed. An evil result from the public point of view followed from the system of atoning for crime by pecuniary mulct. “Criminal jurisdiction became a source of revenue.” So early as Canute’s time certain crimes were pleas of the crown; but grants of criminal jurisdiction, with the attendant forfeitures, were freely made to prelates, towns and lords of manors, and some traces of this jurisdiction still survive (e.g. the criminal jurisdiction of the justices of the soke (soc) of Peterborough, and the rights of some boroughs, e.g. Nottingham, to forfeitures). Outlawry soon ceased to be a mode of punishment, and became, as it still is, a process to compel submission to justice (Crown Office Rules, 1906, rules 88-110). Certain crimes, such as murder, rape, arson and burglary, became unamendable or bootless, i.e. placed the offender’s life, limb, lands and goods at the king’s mercy. These crimes came to be generally described by the name felony (q.v.). Other crimes became punishable by fines which took the place of wites. These were styled trespasses and correspond to what is now called misdemeanour (q.v.).
Minor acts of violence, dishonesty or nuisance, were dealt with in seigniorial and borough courts by presentment of the jurors of courts baron and courts leet, and punished by fine or in some cases by pillory, tumbril or stocks. GraveAnglo-Norman period. acts were dealt with by the sheriff as breaches of the peace. He sat with the freeholders in the county court, which sat twice a year, or in the hundred court, which sat every four weeks. So far as this involved dealing with pleas of the crown the sheriff’s jurisdiction was abolished and was ultimately replaced by that of the justices or conservators of the peace. The sheriff then ceased to be a judge in criminal cases, but remained and still is in law responsible for the peace of his county, and is the officer for the execution of the law. The royal control over crime was effectually established by the itinerant justices sent regularly throughout the realm, who not only dealt with the ordinary proprietary and fiscal rights of the crown but also with the graver crimes (treason and felony), and ultimately were commissioned to deal with the less grave offences now classed as indictable misdemeanours. The change resulted from the strengthening of royal authority throughout England, which enabled the crown gradually to enlarge the pleas of the crown and to weaken and finally to supersede the criminal jurisdiction, notably of the sheriff, but also of prelates and lords in ecclesiastical and other manors and franchises. “In the early English laws and constitution there existed a national sovereignty and original criminal jurisdiction, but the ideas of legislative power and crime were very slowly developed.” During the 12th century the criminal law was affected by the influence of the church, which introduced into it elements from the Canon and Mosaic laws, and also by the memory of the Roman empire and the renewed study of the Roman law, which enabled lawyers to draw a clearer distinction than had before been recognized between the criminal (dolus) and civil (culpa) aspect of wrongful acts. The Statute of Treasons (1351) is to a large extent an admixture of Roman with feudal law; and to the same source is probably due the more careful analysis of the mental elements necessary to create criminal responsibility, summed up in the somewhat misleading expression nemo reus est nisi mens sit rea.
In the 14th century justices of the peace and quarter sessions were established to deal with offences not sufficiently important for the king’s judges, and from that time the course of criminal justice in England has run substantially on the same lines, with the single and temporary interruption caused by the court of star chamber.
