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Criminal Justice

Crime and punishment have been in existence from times immemorial. However, there have been dramatic continuous changes in how the forms of these crimes were conceived. Thus, the modern perception of crime differs from the one that existed hundreds of years ago. Despite this fact, there is some continuity of the ideas concerning crime and punishment. Following the collapse of the Roman Empire, a bizarre legal system emerged in England and Europe. The system was sophisticated and effective. However, it lacked a distinct system of criminal justice and the role of government and legislation was limited. The Anglo-Saxon England society was lawful and had elaborate legal system. The legal system in the Anglo-Saxon England was single and undivided. The system served to minimise conflicts through resolution of interpersonal and intergroup disputes. It has some similarities with modern legal system that is concerned with the minimisation of violence.

Blood feud was the main mechanism that was used by the Anglo-Saxons to resolve disputes. This kind of crime resolution seems barbaric since it might result in the wide spread violence that originates from trivial disputes. Blood feud was costly and hence the conflicting individuals had the alternative to resolve disputes peacefully. It was undertaken via a legal system that involved mediation between the disputing persons or groups. The mediation process entailed what was known as moot (meeting). The folk, shire, and hundred were three different moots that were used for the mediation process.  Three moots were used to resolve different disputes. Disputes among people from the same community were resolved by folk moots. On the other hand, shire and hundred moot mediated disputes of higher social status or disputes involving persons from different communities.

The procedure of dispute resolution in moots started with a request from the plaintiff to the elders to set up one. It was followed by marking off an area using a rope to form a court. Anyone who entered the court was bound to accept any decision made by the moot and he/she was not expected to resort to any violent means while in the moot, no matter how much he/she was infuriated. The next step was to summon the defendant. The defendant had a choice to enter the court and participate in the dispute resolution process or to refuse. Those who refused to participate in the moot risked being outlawed. The moot was presided over by an individual who was unrelated to the disputing parties. He was also expected to be a person of high standing. The plaintiff and the defendant would then give their case and witnesses were expected to confirm or deny the story of the two sides. The moot would deliberate on the issue based on the evidence provided and then reach a decision. The decision would in most cases be guided by previous resolutions of similar cases and the knowledge of the moot on the evidence presented by either side. The party found in the wrong would then be required to pay compensation and two parties would be reconciled. Thus, this system’s main concern was to maintain social order rather than to punish. The system lacked features associated with a criminal trial such as previous record, reputation or high standard proof of the defendant. The accused and his kin bore the wergild, i.e. burden of compensation. At that time, death penalty was rare and exceptional. As an alternative, whipping was mainly used in serious crimes.

Difficult disputes involved several institutions. In cases when the accused denied any wrong doing, he would swear an oath before the moot. A person who swore an oath, yet the public suspected that he had committed the offence, would ruin his reputation and no one would ever trust him in future. One could support his oath by having relatives and friends perform compurgation. It would add credence to his oath. In such case, an ordeal ritual could be conducted by a priest. Common ordeals that were often used included hot water, hot iron, cold water, and bread. The use of the ordeal ritual helped in ensuring that violent conflict would not arise. Therefore, it is worth noting that law enforcement in the Anglo-Saxon England was the mandate of the community. The hue and cry mechanism was mainly used to raise an alarm for the occurrence of the crime. Everyone who had the hue and cry was expected to join in. Anyone caught in the act committing the crime such as murder or theft was to be executed on the spot. However, such instant punishments were rarely practiced.

During the Dark Ages, kings in Europe were not as powerful as they became later. They had limited roles in the legal system. They mainly issued Law Codes that mainly provided clarification and advice that guided moots and helped to prevent contradictory precedents. The kings were also involved in the law concerning affairs of the church as well as their own affairs.  However, the king’s roles expanded in the 10th and 11th centuries. One such role that emerged at that time was the trial of any case committed under the king’s roof in the king’s court. The initial organisation of such a court was similar to that of the moot. In addition, four main Roman roads were under his jurisdiction. It was expanded later to cover the entire kingdom.

Some exceptional offences did not result in compensation after guilt determination. These included rape, treason, murder, and arson and they were known as bootless crimes. These bootless crimes required a death penalty. It was mainly because such offences were considered to be committed against the entire community rather than a single person or a group of individuals. The implications of these crimes were considered to go beyond the victim. Treason was considered to have serious implications such as an emergence of a civil war. Murder and rape, on the other hand, were viewed as a possible cause of unjustified intense anger, suspicion, and conflict. Arson was considered to be a crime against the society given that people at the time had no mechanism of putting fire off.

The expansion of the king’s role and the presence of bootless offences gave rise to a new legal system that was specialised in some serious crimes. It marked the beginning of the criminal justice system that is considered to be separate and distinct from the general legal system. This system transformed private vengeance into the public one. This system was motivated by the need for increased revenue for the king.

The initial royal justice system is thought to have been established under the reign of Edgar and Cnut. It was later refined by the Norman kings. Radical reconstruction and refinement of the system was undertaken by Henry II in 1166. This year, he promulgated the Assize Clarendon that established the appropriate action for each dispute, for example those involving land ownership. The promulgation of the Assize Clarendon enabled the establishment of county and Borough gaols. Suspected criminals and those caught in the act of committing crimes were sent to gaols until their trial. The application of these procedures in criminal cases resulted in the emergence of the criminal jury. Henry II also established the system of justices in Eyre that survived till 1971. This system allowed the king to send justices to shires where they would identify disputes that could generate revenue or serious ones that would result in disorder if unresolved. This is the origin of the grand jury. The system was at first rocked with rebellion due to extortions. As a consequence, King John signed the Magna Carta in 1215. It required adherence to the law in accordance with the procedure. It also bound the justices to observe the law.

The legal procedure underwent important developments during this period due to the kind of criminal justice that was emerging and the church. The church was opposed to family practices such as irregular marriage and concubinage in addition to the marriage of close relatives. The church was also opposed to ordeals. The ordeals were finally banned in 1214 during the Second Lateran Council. This change transferred critical power from the community to the kings and clerics. Consequently, the ordo judiciarius procedure for legal case emerged in churches. It was based on the canon law. Gradual changes in this procedure facilitated its adoption in the secular courts, especially concerning criminal matters.

Royal courts were later reformed by Edward who came up with a single set of judges, i.e.  the bench. In the 1285 Statute of Gloucester, Edward I systemised practices used to enforce law. He also settled the division between secular and clerical courts using the Statute of Praemunire. Edward also promulgated the Statute of Gloucester, which stopped the franchise creep phenomenon and according to which the king was to be considered the fountain of justice. In Europe, many heritable or franchise jurisdictions expanded in terms of numbers and powers. Some excluded royal jurisdiction resulting in the legal pluralism system. It differed from England that had a single system of royal justice.

A new legal system had emerged by the 13th century, in which royal courts played a central role. In addition, there was a growing distinction between criminal and civil matters. Crimes other than those that required death penalty were dealt with informally or by other courts. Thus, the crown court only dealt with crimes that required death penalty. Churches handled some crimes, although they were limited in terms of the kind of penalty they could impose. In spite of the changes in the legal system, law enforcement continued to depend on the hue and cry mechanism. The inquest resulted in the development of the Petty jury (trial) and the Grand jury.

Major changes in the legal systems of the European region were witnessed in the 16th and 17th centuries. Changes in the European legal system entailed transfer of power to royal courts from private, community, and other courts. There was also an increase in the number of court cases. During this period, lawyers emerged and the system relied more on the systematisation and legislation of law. The system was also transformed into the retribution from the restitution. By the mid 17th century, a criminal law had emerged in some parts of Europe such as England that survived till reforms undertaken in the mid 19th century. Crucial reforms were witnessed during the Tudors reign in the 16th century. For instance, under the Tudors Acts such as the Franchise and the Welsh were enacted. In addition, at this time the role and power of the JPs were increased. However, under the criminal justice system investigation and prosecution were privately undertaken. Some changes took place in other parts of Europe, but not in England. These included the widespread judicial torture and adoption of the inquisitorial system.

Criminal justice system was more punitive between the years 1500 and 1815.  Punishments were undertaken to inflict mainly shame and disgrace rather than pain. Public punishments were supposed to deter onlookers from committing similar acts, to articulate and reaffirm violation of certain values, and to portray the victim as a criminal. All death penalties were carried out in public at a designated place. Although this sentence was rare in the Middle ages, it became common in later years since the range of offences that required this penalty increased. It has been estimated that between the years1500 and 1815 over 250 different crimes required death penalty. Despite this, the number of people hanged remained stable. It is attributed to the fact that the cost of the prosecution was high and that investigation was left to the victim.

Between the years 1450 and 1750, there was an increased crime prosecution. In particular, many petty assaults were reported between the years 1685 and 1720. It has been estimated that over 7,000 assaults were reported during this period. Assault was considered to be a minor offence. For instance, raising a fist to threaten someone constituted assault. Recognisance constituted the largest percentage of assaults reported during this period. Female sexual assaults were also common during this period. The act was often taken as a misdemeanour by victims instead of rape in order to receive sympathy from JPs. It is documented that many disadvantaged group during this period formed the main component of active prosecutors. These included lower classes and women. The high number of the petty crime prosecutions was credited for making the legal system of London effective. It is worth noting that petty assaults were mainly perpetrated by women, even though men also played a vital role in the perpetration of these crimes. The majority of these assaults emerged from intrafamilial problems, drinking, or money feuds. Violence could also erupt in streets due to some sporting events. Violent crimes were mainly carried out by men. However, women were also involved in bloody thirsty threats, especially against the non-Stuart monarchs. Women whose relatives were jailed were also likely to engage in violence against the state. Women were also aggressive liberators. Women of the early modern society defied femininity and engaged into female riots and rescues.  Thus, a female in the early modern society seemed to have been more aggressive and assertive. In addition, a look at these prosecutions of the petty crimes indicates that violence was not gender biased in this society. It is also evident that women in this period were fascinatingly focused on their boldness to prosecute those who had assaulted them.

The increase in the crime prosecution is attributed to the increased disparity between the poor and the rich after the end of the 1642-1651 bloody Civil War that impoverished many people. The powerful and rich individuals felt threatened by the poor and hence enacted laws that criminalised certain acts. This is why, crimes such as vagabonds, heresy, treason, witchcraft, highwaymen, smuggling, and poaching were common during this time. Vagabonds constituted the main crime of the 16th and the 17th centuries. This period was marked by frequent prosecutions of the poor (vagabonds) and the enactment of harsh laws directed against vagabonds. Vagabonds were usually punished by being stripped naked, tied to the end of a cart, and whipped till their bodies became bloody. Thus, the harsh attitude of the rich towards the poor can explain why the number of crime prosecutions before the 18th century was high. Religious conflicts might also explain the high number of prosecutions during this period. Many Protestants were prosecuted during this period for being heretics. In addition, witches formed a surmountable number of the prosecuted. It has been estimated that over 3000 people were prosecuted for the witchcraft crimes. It implies that the early modern society in Europe and England was superstitious. Highway robbery was also common since few banks existed and many people carried money and their valuables around with them. It could have been necessitated by the discrepancy between the poor and the rich. It indicates how mighty and powerful individuals of the early society despised the poor. The highwaymen were considered to be classy criminals who were well mannered, honourable, and courteous to women. Smuggling was common because of the high custom duties during this period. It was a capital offence to poach. It indicates the determination of the rich and powerful who were land owners during this period to keep animals they considered to belong to them. It illustrates that the early modern society started to adopt individualistic characteristics rather than the communal ones. It also indicates that this society was embracing capitalism rather than communism.

Between the years 1750 and 1900, the population of Britain increased from 10 million to 42 million. Moreover, Britain underwent tremendous economic developments. Increasingly more people spent their lives in towns and were freer than before. It was the industrial revolution period. The industrial revolution had a great impact on the crime rate. Crimes such as burglary, vandalism of tracks, water theft from standpipes, and failure to send children to school emerged. In addition, child labour was criminalised. Alongside this, people had easier access to information. Prior to this period, crime prevention was based on the community action. The migration of people from villages to towns and cities during this period meant that new ways of combating crime were needed. By the late 18th century, France had a well organised police force that helped in crime prevention. Efforts to establish such force in Britain were met with opposition. The enactment of the Metropolitan Police Act in the mid 19th century facilitated the establishment of the police force in Britain. Sir Robert Peel is credited for the establishment of the first metropolitan police force.

The rate of prosecutions declined in the 18th century. Several possible explanations exist for this decline. First, the decline is attributed to judicial reforms, the emergence of effective punishments that replaced the rarely used Bloody Code, and the improvement of the law enforcement. It implies that many crimes could be detected, investigated, prosecuted, tried, and provided with a ‘guilty’ verdict. It indicates that one was likely to be caught and punished. It could have facilitated the change of the criminals’ behaviour in the society.

The decline can also be attributed to the emergence of the well organised police force in some countries such as France. It helped to combat crimes, in addition to helping in the investigation and prosecution of crimes. Economic impact on social issues could also explain the decline. There was a boom in the economy in the 18th century, which resulted in the improved living standards of individuals. Thus, poverty that raged many individuals prior to this period declined. Therefore, economic incentives to commit crimes did not arise at this time. In addition, it reduced the social stress of poverty that was a major contributing factor of the violent crimes as witnessed in previous years. Many people got employment opportunities and, therefore, previously wide spread vagabonds were rarely seen in the society. Another possible explanation is the decline of the young population and the increase of the aged population, which was observed during this period due to the increased living standards. Thus, the decline of the young generation implied that the crime rate would also decline since most crimes were committed by this group of individuals.

Finally, it is argued that cultural and sociological factors strengthened the civil society of this period. It is further argued that the development of moral code could have contributed significantly to the decline of the crime rates by the 18th century. This moral code could have compelled people to behave in an orderly manner and to abide by the law and hence reduce the number of crime prosecutions. Moreover, the code meant that respect was not earned through income and class but rather via moral behaviour.  It implies that anyone could earn social respect. It is argued to have led to the decline in crime prosecution since crimes arising from the competitive consumption like those witnessed in the 20th century no longer arose. Until the mid 20th century, the rate of crime prosecution remained relatively low.

It is evident that the concept of crime has changed over time. Punishments for various crimes have also undergone transformation over time. It is also evident from the discussion that economic and social changes in the society influence the proliferation of crimes and their transformation.



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