Our criminal justice system offers an interesting paradox.
If a criminal commits a violent action against a peaceful person — say, a mugging or a murder — then for justice to be done, the police have to arrest the criminal and try him in a court of law. If convicted, the criminal will be imprisoned where his livelihood is provided by tax dollars, and those taxes will be paid, in part, by the very person he committed the crime against in the first place.
In short, victims of crime — on the rare occasion that state justice is carried out — are victimized twice: once by the private criminal, and a second time by the tax-extracting government.
Most people never question this system. It’s just the way it is and has always been. But once this paradox is recognized, it is easy to see that the root of the problem rests in the fact that in our modern court system, the State itself plays the role of the victim. The criminal owes a “debt to society” – and society, of course, is always represented by society’s government. The State is the universal victim of all crime.
This was not always the case. In Anglo-Saxon law, prior to the Crown’s encroachment into the legal system — which was a gradual, centuries-long process — the private victims of crimes were the ones responsible for bringing suit, and any debt owed by a criminal was to be paid to the person whose rights were actually violated. In any system of customary or spontaneous law, this appears to be the model that develops.
In English law, there were various courts that served each of the several respective needs of a legal system. After the Norman Conquest, the English monarch began to insert itself into the legal system as a means of raising revenue. Bruce Benson traces this history. “Beginning with Henry I, authoritarian legislation became increasingly important.”1 Traditional common laws were codified, and the fines for statute offenses were formally stipulated with designation as to who gets paid what amount for any given offense.
Customary law was still maintained in the legal system, and the royal courts only applied where the Crown claimed jurisdiction. These were offenses that violated “the King’s Peace.” The problem was, with a monetary incentive for the Crown, what constituted “the King’s Peace” was open to interpretation. Bryce Lyon elaborates:
In the growth of this list [of violations of statute law] we may be certain that although the king’s concern for law and order was a cause, another interest was need of money; to increase his income the king only needed to use his prerogative and throw his jurisdiction over another offense.2
To expand jurisdiction, the king began allowing appeals to be made to the royal courts. To do this, the appellor had to claim that the appellee was not only violating his personal rights, but that the “King’s peace” was also being violated. Thus, the Crown shared victim status with the individual bringing suit.
Lyon offers more commentary: “By creating this fiction, practically any offense could be interpreted as a breach of the king’s peace and so brought before the royal court.”3
Following this, the notion of a “felony” was introduced to English law. Originally, this referred to any betrayal or crime by a vassal against a feudal lord. Now the feudal lord was the sole victim of felony offenses, and this concept was open to expansion as well. “Again,” Lyon tells us,
royal greed seems to be the best explanation for the expansion of the concept of felony. Any crime called a felony meant that if the appellee was found guilty his possessions escheated to the king. The more crimes called felonies, the greater the income, and so the list of felonies continued to grow throughout the twelfth century.4
In a previous article, I discussed how the evolution of royal law led to the creation of our modern prison system. The introduction of prisons and the expansion of felony claims occurred concomitantly as the crown sought more sources of revenue. Under Henry II, royal courts expanded through the introduction of itinerant judges who traveled from shire to shire to adjudicated disputes under the growing body of felony law, which required the holding of prisoners.
Additionally, the concept of a “frankpledge” was introduced, which obligated citizens to help enforce the royal law by carrying out police duties (not unlike the infamous obligation imposed on northern US citizens under the Fugitive Slave Act of 1850). Citizens who were found in violation of their frankpledge could also face a fine for simply failing “to pursue criminals or report all crimes through inquest juries.”5 The frankpledges — which at times were levied against entire communities — demonstrate the growing view that the Crown was the victim; in this case, it was the victim of a violation of a “contract” imposed on the citizenry as part of a supposedly reciprocal agreement that the State will uphold justice as its end of the bargain.
Along with other legal innovations, such as the development of new kinds of writs — which compelled defendants to appear before a royal court — and juries — which were originally used to make accusations and provide information to the king’s judges (a different function than the modern jury), the king established the office of “Sheriff” to seek and arrest felons in order to create more disputes that could be brought to the royal courts. More disputes meant more revenue. But now, like our modern justice system, the writs, juries, and sheriffs were being used to find conflicts even in cases in which no victim cared to bring suit. Unlike the early appeals to the royal court, the State became the sole “victim” in a case, rather than merely sharing victim status in the case that a true criminal offense also violated the King’s Peace.
A significant development that grew out of this by the end of Henry II’s reign was the distinction between “criminal” and “civil” offenses. Civil offenses were those covered by traditional customary law, in which the victim of an offense brought a tort against the person accused and was due restitution. Criminal cases were those that generated revenue for the king. Instead of paying restitution to the victim, criminal violations made the Crown the victim of offenses that may or may not have a private victim.
As Anglo-Saxon law continued to involve, criminal offenses became more and more the norm. As Benson writes, “By the middle of the thirteenth century, the King’s high courts were moving toward the institutional structure that would last into the late nineteenth century. The Court of the King’s Bench, the Court of Common Pleas, and the Court of the Exchequer became identifiable entities with identifiable jurisdictions.”6 As the law grew, the State officially established itself as the universal victim.