Common Law Crimes Research Articles

Lenity and Federal Common Law Crimes

Lenity and Federal Common Law Crimes

Judicial Creativity in a Common Law System

The most remarkable feature of Scots criminal law is that it is still a common law system. It contains, of course, many statutory offences, mostly recent and concerned with the regulation of modern developments such as road traffic or wireless telegraphy. There are also a large number of statutory frauds, dealing with all kinds of things, such as companies, bankruptcies, the regulation of professions, etc., but many of those are unnecessary, in the sense that the behaviour they prohibit can be dealt with as common law fraud, which covers the achievement of any practical result. There are also some modern preventive crimes created by statute, such as carrying offensive weapons in public, but other preventive offences, such as housebreaking with intent to steal, were created by the common law. There are very few of what might be regarded as basic crimes which are statutory. The most striking example is the crime of incest which, until recently, was dealt with under the Incest Act of 1567, passed by the Scottish Parliament in the wake of the Reformation. The Incest Act incorporated the 18th chapter of Leviticus into the law of Scotland, and with some amendments, it remained the law until the passing of the Incest and Related Offences (Scotland) Act 1986. But that was an oddity, and there is some authority that parent-child incest is a common law crime. The basic crimes, such as those concerned with injuring the person or property of others, are essentially matters regulated by the common law, the creations of judges, without any statutory definitions, and all with the same maximum penalty of life imprisonment.

Personal Safety in Dangerous Places.

Personal safety during fieldwork is seldom addressed directly in the literature. Drawing from many prior years of ethnographic research and from field experience while studying crack distributors in New York City, the authors provide a variety of strategies by which ethnographic research can be safely conducted in dangerous settings. By projecting an appropriate demeanor, ethnographers can seek others for protector and locator roles, routinely create a safety zone in the field, and establish compatible field roles with potential subjects. The article also provides strategies for avoiding or handling sexual approaches, common law crimes, fights, drive-by shootings, and contacts with the police. When integrated with other standard qualitative methods, ethnographic strategies help to ensure that no physical harm comes to the field-worker and other staff members. Moreover, the presence of researchers may actually reduce (and not increase) potential and actual violence among crack distributors/abusers or others present in the field setting.

Abstraction and Authority

ion and Authority Frank H. Easterbrookt Our Constitution creates a government of laws and not of men. The distinction is more than slogan. It is embedded in structure. Congress must proceed by law, using intelligible standards and principles with sufficient breadth to be more than bills of attainder. Rules are proposed, debated, voted on, and published. Process matters: failure at any step means no law. There are no common law crimes. Sudden changes in norms may transgress the Ex Post Facto Clause, the Due Process Clause, or both. Executive officials must act under standards they can defend in (and before courts); judges too must support their decisions by reasons of general application. Yet the law teems with devices that defeat uniformity and predictability. Laws may create plastic standards. They may, for example, charge an agency to act in the public interest, convenience, and necessity. Judges attempt to define unreasonable restraints of trade. Balancing tests blossom in constitutional law-although lists of factors do not create tests, for a combination of a lack of weights for the factors and the tension in a 200year stock of precedent enables judges to go any which way. As society becomes more complex and actors-Presidents, administrators, legislators, judges-have less time to spend on each subject, it becomes both tempting and essential (if business is to be finished at all) to muddle through with standards rather than rules. Even in theory it is difficult to know when a rule is preferable to a standard;1 in practice neither information nor time permits a confident choice.2 Language itself is too crude for full specificat Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer, The Law School, The University of Chicago. This Article was prepared for The Bill of Rights in the Welfare State: A Bicentennial Symposium, held at The University of Chicago Law School on October 25-26, 1991. I 1991 by Frank H. Easterbrook. I thank Thomas Collier, G. Michael Halfenger, Alan J. Meese and Richard A. Posner for helpful comments on an earlier draft. ' Isaac Ehrlich and Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J Legal Stud 257 (1974). See also Donald Wittman, Prior Regulation versus Post Liability: The Choice Between Input and Output Monitoring, 6 J Legal Stud 193 (1977). 2 See Frank H. Easterbrook, What's So Special About Judges?, 61 U Colo L Rev 773,

The Sound of Silence: United States v. Hudson & Goodwin, The Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes

The Sound of Silence: United States v. Hudson & Goodwin, The Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes

The Role of the People in First Amendment Theory

History is what we make of it. Although there is undeniably a core of hard fact in any historical event, the contemporary significance of a past occurrence turns largely on a series of cultural choices made subsequent to the original happening. Which facts will a society emphasize, and which will it ignore? What words will be used to describe those facts? With what other events will this event be descriptively and normatively assimilated? What theory or principle or concept will this event be taken to exemplify? All of these questions are questions of characterization, and each characterization is a choice that will determine the present perception of a past event, often as much as what actually occurred. I begin with these general observations about the nature of history because the question of the subsequent characterization of a historical event is nowhere more obvious than with respect to the trial 250 years ago of John Peter Zenger.' A commonly accepted characterization of the event and its significance is as follows: Zenger was a comparatively minor member of a group that criticized Governor William Cosby's regime of the Province of New York. Zenger printed criticisms of Cosby in the New York Weekly Journal, created primarily for the purpose of attacking Cosby. As publisher of this criticism of government, Zenger was prosecuted for the common law crime of seditious libel. Largely as a result of the powerful advocacy of his lawyer, Andrew Hamilton, the

The Invention of a Common Law Crime: Perjury and the Elizabethan Courts

The impetus for this study was concern with the place of statutes within the English common law during the sixteenth and seventeenth centuries. There seems to have been significant shift in attitudes towards statutory law between the medieval and early modern periods; specifically, while some medieval statutes were perceived by contemporaries as innovative, by the seventeenth century statutes tended to be regarded otherwise, as confirmation of pre-existing law and not as innovative.' It is clear, however, that regardless of how they were viewed by contemporaries, were innovative statutes in the sixteenth century; one need not go farther than the great Henrician statutes of Uses and Wills (27 Henry 8, c. 10, 32 Henry 8, c. 1).2 If, then, the was reluctant to recognize innovation, how did this mind deal with innovative statutes, i.e., ones creating new procedures, remedies, and/or crimes? The question becomes critical when asked of the later Tudor period during which, according to Pocock, there occurred great hardening and consolidation of common-law thought.3 This study is not, however, direct response to Pocock's call for a detailed study of Tudor common-law thought which would show how and when it came into being.4 Rather, it approaches this issue from far more narrow focus. This study involves an examination of one particular statute, the Perjury Statute of 1563 (5 Elizabeth, c. 9) and the treat-

Sex Differences in Criminal Activity

National victimization survey data for the years 1972 to 1976 are examined in order to investigate the extent to which they are in accord with Uniform Crime Report arrest data regarding the offender's sex. The results for common-law crimes–both the personal crimes of rape, robbery, assault, and personal larceny, as well as the household crimes of burglary, larceny, and motor vehicle theft–parallel arrest data in showing that male involvement in these crimes is proportionately much greater than is the involvement of females. Except for a slight recent increase in female involvement for larceny, there did not appear to be systematic changes in the proportionate involvement of females across the few years of victimization data now available. Victims of female-offender crimes reported them less often to the police than was true for victims of male-offender crimes. But the latter crimes are usually more serious and male-offenders dominate commercial robbery, almost always reported to the police. The chivalry hypothesis–that male victims of female offenders are reluctant to report female-offender crimes to the police–was not supported. Even with seriousness of victimizations controlled, males tended to report their victimizations to the police more when they were victimized by females; the opposite was true for female victims. Overall, the results are consistent with the argument that sex is an important nonartifactual correlate of involvement in criminal behavior. Theories that fail to recognize and accommodate the importance of sex–and other traditional demographic correlates (e.g., race) of involvement in common-law crimes–are ignoring important factors accounting for criminal activity.

The American Law of Slavery, 1810-1860 a Study in the Persistence of Legal Autonomy

In 1821 the Mississippi Supreme Court held that a white person could be indicted for the common law crime of murder when the victim was a slave: Because individuals may have been deprived of many of their rights by society, it does not follow, that they have been deprived of all their rights.In some respects, slaves may be considered as chattels, but in others, they are regarded as men. The law views them as capable of committing crimes. This can only be upon the principle, that they are men and rational beings.

REVIEWS

Book reviewed in this article:The Concept of a Legal System. By J. RazLaw as Fact. By Karl Olivecrona.Local Government. By R. J. Buxton.Hire‐Purchase Law and Practice. Second edition. By R. M. Goode, ll.b.Law and Practice of the Stock Exchange. By Geoffrey Cooper and Richard J. Cridlan.South African Criminal Law and Procedure (formerly Gardiner and Lansdown): Volume II—Common Law Crimes. By P. M. A. Hunt.Natural Resources and Public Property under the Canadian Constitution. By G. V. La Forest, q.c.Public International Law. By D. J. Latham BrownA Modern Introduction to International Law. By Michael Akehurst

The Role of Common Law Concepts in Modern Criminal Jurisprudence (A Symposium) III. Common Law Crimes against Public Morals

The Role of Common Law Concepts in Modern Criminal Jurisprudence (A Symposium) III. Common Law Crimes against Public Morals

Legal Aspects of Arson

Arson is a peculiar crime. It is committed covertly and in secrecy, and consequently, the admissibility and sufficiency of evidence are problems to be solved. A conviction, if possible, is generally the result of an accumulation of numerous bits of circumstantial evidence. The prosecuting attorney, of necessity, is impelled to offer evidence bordering on the imaginary line which separates the admissible from the inadmissible. Now for a moment let us consider the old common law crime of arson which consisted of the wilful and malicious burning of the house or outhouse of another man. It could not be committed by burning an unoccupied dwelling. While the house had to be occupied, it was not necessary that the occupant be in the building at the time of the fire. The crime also included setting fire to any outhouses which were used in connection with the dwelling and which were located close enough so that the flames would endanger the occupants of the dwelling. The crime was against the security of the home and not against property and, therefore, the occupant could not commit the crime by burning the house in which he lived. It is easy to see that arson at common law was confined to very narrow limits. Other burnings were punishable, not as arson, but as high misdemeanors. To remedy the inadequacies of the common law, the legislatures of the various states gradually began to extend and broaden the definition of the crime, until today it covers all kinds of buildings and structures, even including personal property. Now the crime of arson includes the burning of the one's own property, whereas, at common law, it was limited to the burning of the dwelling house occupied by another person. While the legislative enactments in some states were adequate, in others they fell short. The Model Arson Law was designed not only to bring about uniformity but to correct the deficiencies of the common law and the statutory laws. As will be seen later, the Model Law covers practically any intentional burning that can occur and makes it much easier than before to convict the arsonist. At the present time, all states are operating under this law, with the exception of Maine, Minnesota, New York, Oklahoma, Tennessee, Texas and Washington.

Federal Criminal Jurisdiction and Prosecutors' Discretion

offenses, occupying approximately one quarter of federal judges' time,1 had its meager beginnings before birth of constitutional federal government itself. The Articles of Confederation provided that the United States in Congress assembled, shall have sole and exclusive right and power of . . . appointing courts for trial of piracies and felonies committed on high seas. . . .2 The Constitution defined treason and expressly authorized Congress to punish counterfeiting of United States securities and coins, as well as piracies and felonies on high seas and offenses against law of nations.3 But great bulk of federal criminal activity rests upon constitutional power of Congress to enact laws necessary and proper to execution of specifically conferred powers, for there are no commonlaw crimes in federal jurisprudence.4 The first federal criminal legislation, antedating

Common Law Crimes in the United States

Common Law Crimes in the United States

Recent Developments in Criminal Law

Before considering some of the recent criminal law cases which are significant as indices of the present course of criminal law, let us briefly review some of the major inherent difficulties attending the administration of criminal law. The degree of efficiency that can be attained in enforcing rules governing human conduct is intimately associated with the extent to which such precepts lend themselves to enforcement.' It is virtually inevitable that whenever society burdens the law with an extensive program of regulation of many phases of conduct whose very nature does not permit of simple objective treatment there will follow loud complaints of the breakdown of the traditional enforcing agencies. The problem of enforcing the criminal law is in reality a problem of the intrinsic limitations upon effective legal action. Crime is a relative concept, varying both with the society in which it is prohibited and the time at which it is prohibited.2 To the fact that the evolution of the criminal law lacked scientific guidance we may ascribe the great number of vestigial penal laws, both substantive and adjective, which so frequently mire the enforcing agencies. Often, strict compliance with the technical requirements of criminal procedure stemmed from the endeavor of the courts to ameliorate the excessive severity of the punishments for the old common law crimes. Our modern criminal codes are not unified by a single consistent underlying concept but rather consist of a mixture of principles derived from diverse schools of philosophy. Each generation has accepted the criminal law as it was bequeathed by its fathers, rarely troubling to examine its heritage for the purpose of culling out those portions which were based upon outmoded theories. Each generation has sought to build upon the foundation of the old criminal laws regardless of whether or not the foundation could accommodate the structure. This accounts

Absolute Prohibition in Statutory Offences

In all common law crimes, other than common nuisance, it appears that some culpable mental element, or mens rea, is required. The mental element is ‘culpable’ in the sense that the actus is only criminal when it is coupled with a realization of the probable consequences of the act or omission. In statutory offences this rule does not hold good; the actus may be prohibited in such language that a person may be liable for doing an act whether or not he did, or could, have foreseen the consequences. Such offences create what is commonly called Absolute Liability. Unfortunately our judges have used the expression mens rea in different senses. In this paper I use mens rea in its common law sense, and discuss at the end a meaning of mens rea that is now becoming common.