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History of Criminal Law -

       The history of Criminal Law in California goes back to the introduction of common law in England. Originally, the state only regulated people's conduct to the extent it interfered with society's interests. Much of the behavior of the person was left to either to the home or to the Church.

The Church

       The Church was primarily the regulator for the morality of the people, including having hearings and punishments for those who violated the rules against adultery or incest. As time went on, the Church started to lose its ability to control various aspects of the lives of the people and the governmentstarting controlling more and more, including regulations about what people must do or what people must not do. The Bishop of the diocese would preside over the ecclesiastical court and the local sheriff would preside over the remaining civil courts. There would be significant differences in the rules for each of the counties or regions in a country.

Introduction of Common Law

       In England things changed after the Norman conquest in 1066. Henry II decided to institutionalize the law throughout England by unifying the law so that it would be "common" to the country and reinstated the jury system. The judges were sent out from London to hear the cases. Upon their return, they would discuss their cases and developed "case" law. The judges would then rely on this "case" law to decide future cases. Thus, the law became "common" throughout England. "Statutory" law, or the law passed by the legislature, did not occur for several hundred years.

Crimes under Common Law

       There were three basic crimes under the common law: treason, felony and misdemeanor.
  • Treason - Treason had two subdivisions: high treason and petit treason or petty treason.
  • Felony - There were also two categories of felonies: those with benefit of clergy and those without benefit of clergy. The punishment for all felonies was death; except the punishment for mayhem which was mutilation. Additionally, the criminal would forfeit all their land and property to the king. If the felony was committed by a member of the clergy, the clergy had the right to be tried in the ecclesiastical court rather than the King's court. Death was not an option in the court of the church. As the King grew stronger over time and the Church grew weaker, the King ultimately obtained control over all cases, even those involving the clergy. However, the clergy still could not be put to death, although they would be tried in the King's court.
  • Misdemeanor - The primary common law misdemeanors were assault and batter, perjury, bribery, forgery and conspiracy. There was a great distinction between a felony and a misdemeanor at common law. A person charged with a misdemeanor was entitled to an attorney, a copy of the written accusation and was also entitled to a special jury. A person charged with a felony was not entitled to these rights. A misdemeanant did not suffer forfeiture of property.
State Law

       In the United States, the new states would look to "common law" to help decide and interpret the law. However, each state was free to modify the law with whatever statutes the state chose to enact. Thus, today, virtually all states laws are based in part on common law and partially on statutory law.

California Law

       In California, the criminal laws are primarily set forth in the Penal Code. The Penal Code was first enacted in 1872. The state legislature is constantly making changes to the Penal Code, including adding new laws and new punishments.

       The balance of the criminal laws are divided between the Vehicle Code for most driving related offenses and the Health and Safety Code for all of the drug related offenses. The criminal laws are also subject to the initiative process whereby the general population of the state can enact significant changes to the laws, such as passage of the Three Strikes Law.

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History of Criminal Law
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