CHAPTER 1 HISTORY OF TORTS

There was no law of crimes in ancient societies but, only the law of delicts (torts)…Henry Maine Accordingly, Gaius 'Commentaries' had defined Furtum (theft) as a tort. The modern offences like Assault, Robbery etc., were torts only. As per the Germanic codes the modern

heinous offences like murder, grievous hurt etc. were torts and compensation was recoverable. Hence in the early historical periods the citizen was protected under the-law of torts, and in fact if we go back to ancient history of the codes penal law was minuter. All sins were under the head of Torts.Sin against God formed the I class of ordinances. Sins against the neighbor produced the II class.


It was much later that acts which touched the security of the States were made punishable by the legislature. This according to Maine is the origin of crime. Here the State intervened as an arbitrator.The early torts were disposed off as follows: Plaintiff deposited a sum of money as a stake. The defendant accepted the stake. The Praetor (judge) took security and this went to the coffers (exchequer) of the State. And the party who won got the wager amount. Of course, the Praetor took into consideration the damage incurred and the vengeance thereof.


The twelve tables before Justinian had classified the furtum into manifest arid non-manifest. If a manifest theft is done by a slave, death was the punishment, but if it is done by a citizen the punishment was the bonds-manship of his property. In non-manifest cases, the penalty

was double the value of property stolen by the thief. Gaius considerably reduced the nature of punishment. Until this period, there was no development of criminal Jurisprudence.

True criminal jurisprudence started only later. The State considered itself obliged to the wronged and the 'Popular Assembly' started punishing the offender. Thereafter, the committees of the Assembly were formed. These were the criminal tribunals which later became criminal courts. Broadly speaking Henry Maine classified the entire law of crime

into 4 stages.


1. The state recognised an injury to a person as an injury to the state. Here bills of 'pains and penalty' were passed by the Assembly. This named the various offences like murder and also prescribed the punishment (penalties).


2. When crimes increased in number, the legislature delegated its powers to commissions. Each commission was charged with the duty to investigate and was empowered to punish the offenders.


3. The commission was nominated by the legislature periodically.


4. Permanent Benches or Chambers with Judges were later established by the legislature. The legislature made certain acts defining the offences and specifying the punishment.


The development of the crime in Rome in subsequent years related to the establishment of a large number of criminal tribunals. Further, many statutes were also made. They separately dealt with different offences. There were also questions dealing with jurisdiction etc. Later these two were fused together.


The Romans had tolerably a complete criminal law by the time of Augustus. The process of conversion of torts 'into crime also went on. The punishment portion of the crime was transferred to the Magistrates nominated by the Emperor. The proceedings of the Senate passed on to the Imperial (Royal) Privy court.This became the ultimate criminal appellate court this influenced the doctrine that the Sovereign was the fountain of all Justice & Grace.


Two reasons account for fast development of criminal law; the memory of Roman Empire & the Church. Severe punishments were reduced under the influence of the Church, and mercy it taught. But offences against Almighty God and Treason had no mercy.


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