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Criminal Law

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CRIMINAL LAW. A definition of crim inal law as that part of the law which relates to crimes and their punishment requires an ex planatory definition of the term ((crime?) A definition of a crime as an act or omission for which legal punishment may be inflicted upon the person in default would be too broad for practical purposes; for law in its very nature is coercive and all coercion at some stage in volves the possibility of punishment. Calling crimes does not help matters. There are many acts and omissions which would not be accounted criminal, though they are con sidered wrongs, which result in injury to per sons or property and are done in negligence and even with malice. The criminal law, therefore, in one of its most important aspects, is the law which defines crimes. Secondly, the function of the criminal law is to provide for the punish ment cif crimes. Thirdly, the criminal law prescribes the procedure whereby responsibility for crime is legally determined and the penalty admeasured and inflicted. Crimes may be either attacks on public order, abuses or obstructions of public authority, or acts injurious to the public good; or they may be attacks on the persons or property of individuals, or rights annexed to persons or property. In primitive communities, the law did not greatly concern itself with the redress of private wrongs. It was left to the injured individuals and their kinsmen to wreak vengeance on the offender and get what satisfaction they could through retaliation. The fear of private vengeance, indeed, was the only really efficient check upon crimes of violence. The earliest English method of criminal procedure, if it can be called so, was merely regulative of the right of summary execution accorded to one who catches a wrongdoer on his premises flagrante delscto ; a thief might reclaim his life by paying ever, and, if he had obtained sanctuary an a church or in a demesne of the king, or of a bishop or a lord, and should be killed there during the prescribed days of grace, the slayer was obliged to pay a fine to the protector whose sanctuary had been violated. The privilege given to com pose a feud by the payment of to the avengers of a wrong was, in effect, a recog nition of the right to redress by acts of violence a wrong done by the violent act of another. The idea that wrongdoing might injure not merely the individual directly affected but also the state was not grasped until much later times. During almost the whole Saxon period of English history crimes continued to be re garded as acts of war, and blood feuds and private warfare characterized a normal condi tion of society. The object of the law-maker was to reconcile antagonists upon established terms of peace rather than to put down violence by orderly legal process. The conception of the °King's Peace as a state opposed to the state of private war began to gain currency, however, in the time of Alfred, although the laws of that king made liberal exceptions. A man could fight with or for his lord, for in stance, and a lord could defend his vassal by force of arms without being answerable for a breach of the peace. But offenses against in dividuals, even homicide, involving serious menace to the general welfare, were still treated as merely private injuries to be compensated by damages. The foundation for a more en

lightened system was being laid, nevertheless, and even while these barbarous institutions per sisted, by laws ordering the local organization of the country by shires or counties, hundreds and parishes, for the purpose of police and the administration of justice. All men were bound to combine themselves in associations of 10, each of whom was a surety for the good be havior of the rest; and were likewise bound to produce any of their number charged with any offense or, failing in this, to make good any i mischief he had done. This was the institution of afrank-pledge." The Hundred Courts and County Courts corresponded with the local police organization, but in criminal matters the sheriff's bourn was simply the County Court held for a particular hundred. The court con sisted of the parish priest, the reeve and four men from each township, also all lords of land and public officers of the vicinity,— for the County Court was the °Follanoot° or general assembly of the people. But a representative body of 12 appears to have been constituted as a judicial committee of the court. Accusa tions might be made by this committee, the prototype of the grand jury, or by members of the Folkmoot, or by private accusers. The guilt or innocence was decided by compurga tion, or by ordeal if the accused was not °oath worthy)) Whether the compurgators examined witnesses before they to swear is un certain, but is inconceivable that an inquisition into the facts should not have preceded the verdict. By the time of the Norman Conquest the killings and buntings in private wars and blood feuds had become almost extinct; the introduction of trial by battle in the reign of William the Conqueror, therefore, was an ap parent reversion. Indeed, the language of the royal carta by which this was instituted shows that it was so intended, and that trial by battle was merely private war under regulations. By William and his immediate successors the super visory powers of the King's Court were greatly increased and its concurrent jurisdiction was exercised more stringently and frequently until, ultimately, the King's Assizes practically dis placed the County Court in the exercise of the more important part of its criminal jurisdiction. Criminal actions up to the time of Edward I (reigned 1272-1307) were instituted by °appeals° to the County Courts and proceeded from pri vate initiative, not from the Crown; this was so even in regard to such serious offenses as homicide, arson and rape. In form the crim inal appeal was a wager of combat, the appellor offering to °prove by his body)) the justice of his cause and the appellee likewise undertaking °by his body)) to defend himself against the accusation. If the appellee succeeded in defend ing himself until the stars came out, he was acquitted; if defeated, he was hanged. But it was left to the viscount and coroners to de termine whether the appellee °ought to have the country," meaning, probably, an inquisition by the judicial committee of the County Court (grand jury?) and a determination of the facts on the testimony of witnesses by petit jurors or compurgators.

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