The History Of Criminal Law

Have you ever wondered why drugs are illegal? Have you ever wondered where state and federal governments derived their power to criminalize the trade, possession and use of certain substances?

In order to answer these questions, one must look back to the roots of our legal system—to the development of criminal law and punishment and the purposes they serve.

North Carolina law defines a criminal action as one “prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof.” The State may also, “at the instance of an individual… prevent an apprehended crime against his person or property.” Every other legal action is a civil action.

Criminal laws and the criminal justice system are part of the foundation of modern human civilization, with criminal codes dating as far back as the Sumerians, or some 4,000 years. When a criminal law is violated, in effect the State is substituted in place of the victim. This substitution prevents persons harmed by the intentional acts of others from seeking revenge, and prevents human society from being torn apart by internecine conflicts. Aside from protecting the citizenry from harm brought on by criminal acts, the criminal law and criminal justice system provide justice to victims of crime by punishing offenders. Criminal punishment also deters other would-be criminals from acting on their impulses, out of fear of punishment.

Criminal law is different from civil law. In civil lawsuits, a person who was injured by someone asks a court to find that the person is liable for the injuries and to order that person to pay damages to the injured person. Whereas civil lawsuits are brought, prosecuted and defended by private parties, in criminal cases, either the state or federal government prosecutes a person for violating a law within the government’s jurisdiction.

The division of suits between private parties—the civil law—and actions by governments to punish lawbreakers—the criminal law—was first set to stone, literally, by the Sumerians, some 4,000 years ago. The Sumerians chiseled their code on stone tablets. They were tough on criminals, by modern standards. The penalty for murder and robbery was death. Those accused of sorcery underwent ordeals by water. The accused were submerged in water with irons fastened round their necks; if an accused did not sink, it proved one’s innocence, and one was set free.

Much of modern American law comes from ancient Roman law, which in turn—it is believed—developed out of Etruscan religious principles and borrowed principles from other early civilizations. The Roman criminal code equaled the Sumerian code in its brutality; it may have exceeded it. In general, early criminal codes would be considered savage by today’s standards.

The Romans extended their reach as far as Great Britain, and Rome’s ideas about societal organization took hold in some parts of the British isle—mainly in what is now London. The Roman Empire collapsed, and the Romans were driven out of London by the Anglo-Saxons.

A half-a-millennium later, by the time William, Duke of Normandy, conquered Britain in 1066, the cultures on the British isle had begun to develop a system of laws based on the Mosaic Code, Christianity, and tribal customs which would have been familiar to the area’s inhabitants.

William—also known as William the Conquerer—established county courts in the ancient “shires.” Within these political boundaries, judges were empowered to decide legal matters of all kinds. Judges of various counties shared their opinions with each other, and they attempted to harmonize their decisions with those made in similar cases in other counties.

The many legal traditions and doctrines that resulted from these judges relying on each other’s precedent caused British law to develop in a manner that was distinct from other inheritors of Roman law on the European Continent. This law—reliant on doctrines developed in legal cases over time—was called the Common Law.

When European peoples emigrated to settle in what is now the United States some five-hundred years ago, they brought with them the laws and customs of their homelands. The complicated history of the various colonial empires that wrestled over centuries for what is now within the borders of these United States is too lengthy and complicated to summarize here, but it would suffice to say that the victors of those battles—who wrested control, by force, of the land from all other claimants—established the Common Law first in the colonies of Great Britain and afterwards in the independent states of the union of the United States.

The Common Law has never been adopted under federal law. All federal law is statutory, and many in the legal industry are familiar with the phrase “There is no federal common law.”

Most modern state criminal prosecutions are brought pursuant to state statutes. All federal criminal actions are brought pursuant to federal statute. These statutes embody many of the principles and legal doctrines developed at Common Law. Indeed, many of the criminal offenses prosecuted in state courts today were offenses at Common Law. Many of the elements that must be proven in cases, not to mention the rules of procedure and evidence that inform and direct court proceedings, have their roots in the Common Law.

The interplay between modern statutory law and common law principles is just one matter that renders both the prosecution and defense of criminal matters an extremely complicated and at times perplexing endeavor. Attorneys-at-law are trained to recognize, understand and apply both common law principles as well as principles and doctrines that continue to develop as a result of decisions handed down by state and federal courts throughout the country.

Without the assistance of an experienced criminal defense attorney, a criminal defendant can feel as though one has been cast adrift in the ocean, with an incomplete map. If you or someone you know is facing criminal charges, let us cast out a lifeline. Give us a call today at (704) 370-2828 to speak with one of our experienced criminal defense attorneys.