Historical Origins of Government’s Monopoly on Criminal Justice

Anglo-Saxon Law.

" Under Anglo-Saxon law, criminals were forced to compensate their victims."

The wergilds, based on social rank, appear to have been fairly uniform throughout England, suggesting a degree of efficiency in the market for justice. Society was made up of nobles, churls (free men below the rank of noble) and slaves. In the event of homicide, for example, nobles’ lives were valued at 300 gold pieces (the equivalent of about 150 head of cattle). Churls’ lives were valued at 200 gold pieces in most areas. Slaves were not considered to have a wergild, but a price had to be paid to the slave’s master if the slave was killed. Until the late 9th century, there was another class of free man, ranking below the churl, with a wergild about half that of a noble.

Violence was rarely necessary to force compliance with monetary sanctions. If the accused person was unable to pay, he was placed in slavery. If he failed to appear to answer a charge or refused to pay, he was an outlaw and the accuser had the right under the Anglo-Saxon common law to take his life. This worked because a social consensus prevailed on the law and the fines6 The criminal’s kindred also had a duty imposed by custom to make amends for the offenses of its members,- another avenue of compensation for victims ofcrime.7

Moving from the Law of Tort to the Law of Crime.

"As the powers of kings grew, many offenses became ‘crimes’, with the spoils going to the king instead of the victim".

Kings, whose primary function was conducting warfare, began to see the justice process as a cash cow and gradually expanded their role. Violations of certain customary laws began to be referred to as violations of the "king’s peace." Initially, the king’s peace meant the peace of the king’s house. But as royal power grew through warfare, the king declared that his peace extended to places where he traveled, then to churches, highways and bridges. Eventually, royal officers such as sheriffs could and did proclaim almost any incident anywhere to be a disturbance of the king’s peace.

By the 10th century, as the power of the king evolved, many offenses that were previously regarded as intentional torts (suable, noncontractual wrongs) became instead crimes against the king’s peace or against the people of England. Whereas the spoils of tort law belonged to the victims, the spoils of criminal law went to the king. For the most part, a new system of justice began to replace the payment of wergilds. Criminals were declared to be outlaws, their property could be confiscated, and corporal and capital punishment were instituted.

Defendants appeared before a court made up of local residents and presided over by an appointee of the king. This court depended on two procedures: the oath and the ordeal. Usually the court of residents, who made the decision of guilt or innocence rather than the presiding official, would allow a defendant to produce an oath of his innocence with the help of witnesses, or "oath helpers," who would also testify to his innocence. In the rare case in which the defendant failed to produce enough friendly witnesses, the court turned him over to the church to conduct a trial by ordeal - the outcome of the ordeal being considered the judgment of God. The defendant might be required to hold a piece of red-hot iron in his hand for nine steps or plunge his hand into boiling water; how well the burns healed were considered an indication of innocence or guilt. Or he might be bound and thrown into cold water; if he sank, it was an indication ofguilt.9

The Norman Influence.

As the list of actions violating the king’s peace grew, so did the contrast between criminal and civil causes, with criminal law referring to offenses that generated revenue for the king and the sheriff rather than restitution for the victims. Wherever possible, victims attempted to have an offense considered civil, since that was the only way they could achieve compensation. In response, the king issued more decrees in order to secure his monopoly over the prosecution of criminal law and to generate more revenue. The king used the following methods to replace the private law of crime with state rule and to induce or compel cooperation:11

• A victim was declared a criminal if he obtained restitution from the criminal privately before he brought the case before a king’s justice.
• Victims could not pursue civil remedies until criminal prosecution was completed.
• The rightful owner of stolen property could not get his goods back until after he had given evidence in a criminal prosecution.
• Advertisers or printers who posted rewards for the return of stolen property, no questions asked, were fined.

The State’s Monopoly.

Criminal Justice Comes to America.

It was not until the 1830s, when criminal gangs first appeared in cities, that cities began to form police departments. The police were intended to keep order against mob rule, not to deal with ordinary crime such as theft or murder. From these beginnings, local police forces under government control developed. Initially, cities themselves formed police departments, but corruption in city governments led states to take control of the police in most cities. It was only after the Civil War that local police forces reappeared and the practice of having government-controlled police spread to smaller jurisdictions. During the 19th and 20th centuries, the state increasingly took control of criminal justice.

Justice in the Old West.

When there was crime, much of the law enforcement in that era was carried out on an as-needed basis by interested citizens. For example, cattlemen’s associations often took action to stop rustling. Posses were formed to chase down perpetrators of crimes. And some communities had vigilance committees " the vigilantes " who acted both to prevent crime and to apprehend criminals. Again contrary to popular belief, most vigilance committees were not mobs acting in the heat of passion but were made up of prominent citizens whose primary concern was preserving community law and order.

"Contrary to popular belief, there was not a great deal of ‘ordinary’ crime in the Old West."

The Old West did have such public law officers as U.S. marshals and Texas Rangers, but they were few in number and even these officers were usually paid only small salaries, with bounties and rewards making up an important part of their compensation.

As the population grew in the West, more and more of the responsibility for criminal justice was taken over by government-controlled police and other law officers. By the early years of the 20th century, public law enforcement officers predominated, although private law enforcement did not entirely disappear.