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§ 2. Features of ordering of criminal law of colonies and states in formation of the USA

The period of struggle of North American colonies for the independence and the subsequent formation from their set of the new sovereign state - the United States of America - has left an appreciable trace on all further history of development of the American criminal law.

In the end of XVIII - the beginning of XIX century in legal systems of North American colonies (and subsequently and states) there were so considerable changes, that they have predetermined inevitability of renewal of scale works in the field of criminal law streamlining. Undoubtedly, the main thing from such changes was gradual institutsionalizatsija the government and an order of formation of the right in colonies. Strengthening of the device of the government led to that, as the power institute, and right institute became less dependent on that influence, which population of colonies was capable to render earlier of them. In these conditions not so much satisfaction of momentary requirements of the population, how many self-development and maintenance of own functional self-sufficiency became the primary goal of legal systems of colonies. However it substantially also promoted returning of the American criminal law to its primary, unsystematic condition and caused necessity of its repeated ordering.

First of all, the given problem should be considered from the point of view of features of development of the criminal legislation of colonies in second half XVIII century the Greatest threat to its ordered condition proceeded, strangely enough, from gradual strengthening of a role of the law in regulation criminally-legal relations. The basic problem connected with it consisted that together with complication of public relations in the North America simultaneously there was also a necessity of expansion of a circle of interests protected in a criminal order and as the law was one of preferable forms of fastening ugolovnopravovyh norms it inevitably led to the increasing growth of system of the criminal legislation.

Thus in itself expansion of sphere of the criminal legislation would not be so significant problem, if not a number of the important circumstances. First of all, it is necessary to specify that by the end of XVIII century the technique of acceptance by colonies of new criminal laws, no less than the new legislation as a whole, has essentially changed. If in the beginning of the colonial period the quantity of an accessible and used standard material was small and easily was located in insignificant codes of laws on volume later similar collections have simply ceased to contain in themselves all necessary rules of law. Was not an exception and criminal law area. As a rule, new structures of crimes were made out individual, not allocated of a lump of the legislation by criminal laws, that in the conditions of increase pravotvorcheskoj activity of colonies and absence at them other effective remedies of streamlining of a standard material did their criminal law rather chaotic and inconsistent.

The problem of disorder of criminal law got special value during the period which has followed the announcement by North American colonies of the independence, formation of independent states and their further association in the high-grade state - the United States of America. The principles which have affirmed across the nation of republican board caused, first, necessity of revealing and reforming by each of states of the criminal laws contradicting bases of the new law and order, and secondly, pushed their authorities to more accurate and consecutive fastening of a legal status of their own citizens in all spheres of a public life, not excluding and spheres criminally-legal relations.

Maintenance of availability of knowledge of laws operating in its territory was rather important element of the state functioning with «the consent operated» and on the basis of idea of "general prosperity», also

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To directly people.

However in practice realisation at least one of the listed principles appeared at the best inconvenient. Absence of certain structure of the legislation of states in a combination to the general legal illiteracy of the population led to what to receive accurate representations about own rights, duties and about the criminal interdictions established in laws it was practically impossible for inhabitants of states. Thus, in spite of the fact that already only one fact of inaccessibility of the legislation to inhabitants of states had negative enough value, other consequences following from it had not less destructive character. In particular, one of the most negative results of an unsystematic condition of the legislation was appreciable decrease in level of trust of the population of states to the right as to the basic regulator of public relations and the basic guarding system of a society. Uncertainty and inaccessibility of the right of states communicated critics with ill-intentioned actions of lawyers and judges which, in their opinion, used a complexity of the legislation operating in states for the purpose of extraction for itself additional financial benefit. According to similar logic the right turned from the tool of protection of the person to means for profit reception by impious representatives of a legal trade, that especially [28 [29] [30] adversely affected area criminally-legal relations where frequently on a game were well-being, freedom or even human life.

However, such criticism far not always had under itself powerful enough bases. It is remarkable, that the similar fears caused by an unsystematic condition of the legislation of states, expressed both lawyers and judges. So, for example, James Sullivan (James Sullivan, 1744-1808), the authoritative lawyer from Massachusetts, approved, that «exact knowledge of laws so important, how much significantly and its maintenance;... While we have no precisely known system legal maksim both principles, and precisely known and certain system of statutes in force, ours the life and the property are defenceless». According to one of lawyers of Connecticut, «each citizen should receive knowledge of those laws which operate its daily affairs and protect invaluable gifts of a life, freedom and the property». Under the statement of the lawyer from Georgia, «a direct consequence of the representative state is the due awareness of the people on those laws and rules by which their duties are defined and their rights» [31 [32] [33] are fixed. The lawyer from Pennsylvania placed emphasis that absence of accurate system of the legislation led «to involuntary insubordination of the citizen to laws of its own country, let even it would be glad to them to submit, if understood them» [34].

The aspiration of the American lawyers to prove necessity of streamlining of the legislation of states was supported also with their own interests. It is obvious, that for effective performance of the professional duties lawyers and judges should have possibility to get acquainted with the maintenance of normative acts operating in states. However absence of effective ordering did access to them from lawyers rather limited. The basic complexities which lawyers and judges faced in the daily activity, have been connected by that collections of the legislation of states (and before their occurrence - collections of the legislation of colonies) owing to the various reasons had only very limited distribution. The fullest meetings of the operating legislation were accessible only legislaturam while practising lawyers, judges and other officials have been forced to rely on various informal compilations of normative acts including own drawing up [35 [36]. However, and the possession a full set of the operating legislation was not a guarantee of reception of objective representation about operating on territory of staff laws. Legislation meetings were a little useful from the practical point of view: in them laws of the American and English origin, public and private-law certificates irregularly alternated; frequently there was no table of contents and the index etc.

Moreover, necessity of orientation for a considerable quantity of unsystematized acts led to complexities not only in pravoprimenenii, but also in lawmaking. The state legislature of states at the subsequent legislative activity quite often had no possibility to consider all facts of change or cancellation of those or other laws, that, certainly, led to occurrence still the big contradictions in the operating legislation, and the increase in legislative activity of states only aggravated and without that a difficult situation. In this connection in practice it was inconvenient not only to reveal the law which was coming under to application, but also to establish, whether it kept a validity and if kept in what volume.

Thus, gradual expansion of sphere of regulation of criminal laws in the conditions of amplifying unsystematic character of the legislation of states led to occurrence of numerous problems of the social and legal character requiring the prompt permission. As developed by the end XVIII - to the beginning of XIX century the situation in the field of the criminal legislation of states mismatched neither to interests of citizens, nor interests of lawyers and judges, interests of legislators, states have appeared again before necessity of its ordering.

As practice, for the permission of a problem of ordering of the legislation has shown, the overwhelming majority of states has addressed to a method of so-called audit of the right issued still in XVI century in England. For the reasons similar to what have caused the disorganised condition of the legislation of North American states, the English parliament also showed certain interest to ordering of the legislation of England. So, one of the first and most successful projects of audit belonged to Frensisu Bacon who has offered the plan on reduction of volume of the English legislation by cancellation become outdated and actually not operating statutes and inclusion of their remained weight in uniform certificates unified under the form, constituted on a legal regulation subject. Therefore, when again formed states have appeared before necessity of carrying out of fuller and intelligent ordering of the legislation operating in their territory, the reference to practice of audit already tested in England was represented to them by quite proved and natural step. [37 [38]

However, in most cases legislation audit passed spontaneously enough and in the conditions of considerable pravotvorcheskoj independence of states differed in each of them an appreciable originality. Only one names of the documents which were accepted by results of carrying out of audit testify to it: « The alphabetic collection of the public statute law of South Carolina "," the List of laws and decisions of the State of Maryland »[39 [40],« the Reviewed code of laws of Virginia »[41] etc. the Term"audit", thus, was thought in the USA widely enough and did not exclude the diversified activity of states on ordering of own legislation. However, as a rule, the certificates accepted during audit represented the complex, diversified arches of legislations of states. Being considerable on the volume, the given arches were capable to avoid a problem vyborochnosti a statement of a standard material by which have not been deprived collections of rules of law of the last decades. Laws entering into them were published completely more often and settled down in a chronological or alphabetic order. Thus one of compulsory conditions of registration of results of audit was inclusion in the arches full, proindeksirovannyh lists of certificates settling down in them that has been urged to facilitate process of detection of necessary documents.

In due course practice of audit of the legislation has got the wide circulation in states. So, if by 1800 the similar arches have been developed only in several states by 1815 of audit laws already ten of thirteen former North American colonies [42] have undergone. However, the success of audit of the criminal legislation should not be absolutised. Though the described method of revision of laws really systematised the criminal legislation, it has appeared is not capable to resolve the problems put before it to the full. While complex codes of laws practically completely eliminated a problem of inaccessibility of the criminal legislation to lawyers and judges, they could not inform effectively the maintenance of criminally-legal interdictions to the population of states since using possibility such arches on - the former remained only behind narrow enough circle interested in studying of the right of experts.

Other vital issue of spent audit was it orientirovannost not on qualitative updating of states of laws operating in territory, and only on their editorial editing. At the same time in some cases necessity of modification of the criminal legislation of states really was available. As a rule, such changes were a part of the course taken by states on reconsideration of the criminal policy spent by them, and also on criminal liability liberalisation. Thus special importance of these directions of activity was underlined even in the most key standard legal acts of states. So, for example, in the constitution of Pennsylvania it was directly said that «criminal laws operating till now should be reformed the following state legislature of staff so soon 1776, how much it is possible, and punishments in some cases should be made by less severe and as a whole more corresponding to weight of crimes» [43]. The similar requirement contained, for example, and in the constitution of New Hampshire 1784, blaming existence of excessively severe criminal laws and proclaiming true purpose of punishment «correction, instead of mankind destruction» [44].

It meant, that, how much legislation audit was useful obshchepravovaja, criminal law ordering should be spent by a little excellent rules. Necessity of satisfaction of requirement of the population for reception of accurate knowledge of the criminal interdictions established in the right and punishments for their infringement together with necessity of correction of some substantial aspects of criminal law of states demanded, first of all, application of the branch approach to ordering of the criminal legislation, and realised it not only the authorities of Pennsylvania or New Hampshire, but also the power of other states.

Legislative experience of the State of Virginia can be considered as rather characteristic precedent of working out of the branch arch of norms of criminal law, for example. Creation of such document has been initiated in this staff in 1776 as one of directions of audit of its legislation. In this occasion Thomas Jefferson to whom drawing up of the new criminal arch also was entrusted, noticed, that «many from operating [in this staff] laws are fair only for a monarchy and are incompatible with the republican form of government», and owing to it they come under to reforming [45]. Following principles of the Declaration of the rights of Virginia of the 1776 which have established an interdiction on «severe and unusual» punishments, Jefferson has made an attempt to soften the criminal liability for fulfilment of variety of crimes and it is essential to limit a circle of those penal acts which were punished earlier exclusively by a death penalty. Thus it is necessary to underline, that the document developed by it differed appreciable brevity and did not apply for absolute completeness of legal regulation. However it did not interfere with performance by this arch of key problems facing to it: to fastening of the cores of criminal interdictions operating in staff and liberalisation of the criminal liability for their infringement.

As a whole, isolated and differing enough high completeness of legal regulation the arch criminally-rules of law, similar to volume which has been developed in Virginia, became rather successful form of ordering of the criminal legislation of states. Such format was convenient both from the point of view of use by its citizens, and from the point of view of use by its lawyers and judges. In that measure in which the arch did not cover others significant criminally-rule of law, it was supplemented with other spectrum of the criminal legislation which in process of distribution of practice of audit also became more and more accessible and systematic. Taking into account that the form of criminal law of various states developed under the influence of rather similar tendencies, the similar combination of methods of the general and private audit of the criminal legislation appeared the extremely demanded among bolshej their parts, as allowed to recognise such form of ordering as rather successful way of struggle of states with problems of uncertainty and inaccessibility of criminal law operating in their territory.

Besides the difficulties connected with active development of the criminal legislation of states, there was also other important factor promoting renewal of works on complex ordering of their criminal law in formation of the USA. It was the universal statement by the end of XVIII century common law England as one of leading sources of criminal law of North American colonies, and subsequently and states.

The establishment of elements of the traditional English right of judiciary practice in the North America was a consequence of gradual strengthening of political, economic, legal and cultural influence

The Great Britain on the possession in North Atlantic region. Thus the perception of these traditions was the natural and natural process caused more likely by requirement of colonies to have a certain subsidiary legal system, rather than desire of the British authorities to impose it own legal orders [46]. Use of legal customs and judiciary practice of England allowed colonial judges to meet effectively lacks of the legislation operating in colonies, including in criminally-legal sphere. In particular, thanks to the reception common law judges had an opportunity directly to borrow from decisions of English vessels separate structures of crimes which were absent in criminal laws of colonies and consequently could not form the basis for attraction of offenders to the criminal liability. In many respects the reception common law in the field of criminal law has been justified also because the criminal legislation of colonies quite often did not contain definitions of the structures of crimes fixed in it while English judiciary practice opened them in detail and at high level. Use common law was favourable England to the American lawyers and for the reason, that they had an opportunity to appeal to the arguments earlier already formulated by English lawyers and judges, for strengthening with their help of own positions in new litigations.

However it is important to notice, that the reception common law England assumed nevertheless not so much loan by North American colonies of its substantial aspects, how many reproduction of the technique of formation of the right by means of judicial business. Therefore inexpediency of further use of only one English judgements in pravoprimenitelnoj activity of the American judges, especially in the conditions of dissonance of relations between colonies and mother country, became in due course more and more obvious. Similar reflexions resulted the American lawyers and judges in comprehension of necessity of creation in separate states and in all territory of the USA own «constant system common law» which, under statement Efraima Kirbi (Ephraim Kirby, 1757-1804), one of influential lawyers of Connecticut, could become a basis of all legal device of the state and provide flexible development of the American right in the future.

Thus for creation such «the constant system common law» was required to achieve at least orderliness of weight of judiciary practice already saved up by the American vessels, and in an ideal and at all to adjust the future mechanism of preservation and an information transfer about judgements accepted by them. The problem consisted that in states any mechanism of ordering of materials of judiciary practice was absent basically. By the tradition which have developed still during the colonial period, records about judgements though, as a rule, also were led, were not numerous and contained only the most general data on the resolved affairs. At the same time the American lawyers and judges felt requirement for reception of wider knowledge of an essence of decisions accepted by vessels as, studying them, they comprehended the logic, standing up for processes of formation and right application in practice. Critically estimating a situation, Kirbi wrote: « Arguments of judges without history of all business were not always intelligible; they were known only to a small amount of people; and being written down on paper single sheets, they have been subject to loss, that soon resulted them in a condition of full oblivion »[47 [48] [49]. Differently, the disorder condition common law states in that kind in which it has developed, by the end of XVIII century contradicted interests of lawyers and judges for which the permanent job with judiciary practice became their key professional duty.

It is obvious, that the developed situation demanded faster permission and states should resort again to practice of ordering of the right, only this time for struggle against the difficulties which have arisen not in the field of the legislation, and in area common law. Followed consider only that circumstance, that the way of formation common law, were a product of activity of vessels, essentially differed from a way of formation of the legislation which were a product of activity legislatur of states and consequently the approach to its ordering should be picked up the corresponding. However, special complexities with ordering common law could not arise, since, unlike the criminal legislation which frequently became object of reforming, common law did not assume active external intervention therefore all process of its ordering was reduced only to record of the most actual judgements, but in any way to their revision.

Therefore, first of all, with a view of maintenance of availability of the information on the resolved lawsuits in states process of the publication of the judgements which many elements directly have been borrowed by them from similar English practice has been adjusted. As a rule, the information on all basic decisions of superior courts of states was published in collections, and also data on the most significant judgements of courts below. Usually collections contained the short description of circumstances of business and the given reason decree on it. Affairs were arranged mainly chronologically, however to find out the necessary decision to the lawyer it was simple enough: collections contained both alphabetic, and thematic indexes. The part of collections of judgements had official character, a part - informal, however both those and others had special authority among experts as allowed them to receive objective representations about an essence of decisions accepted by vessels including on affairs of a criminally-legal orientation. Thus the similar form of ordering of judiciary practice admitted satisfactory even taking into account that it was not widely accessible to the population of states. As a whole prezjumirovalos, that studying of collections of judgements, no less than most common law, was faster a problem of lawyers and judges, rather than than citizens [50].

Thus, eventually application of methods of ordering of the legislation supplementing each other by them and common law became the most typical way of settlement of a problem of inaccessibility and uncertainty of criminal law operating in states. Parallel development of two these systems predetermined in most cases and parallel activity of states on their ordering. However in some cases, aspiring to improve the form and the maintenance of own criminal law, states undertook additional steps on its streamlining that created possibilities for occurrence in the USA qualitatively new arches criminally-rules of law. If till certain time widespread in states of an expert of ordering of the criminal legislation assumed at the best only association in one document of separate criminally-legal sanctions subsequently states have offered essentially other approach to the decision of the given problem. Its key elements were use of more accurate structure of a statement of a material in the text of the standard legal act, and also association in one document of criminally-rules of law various origin i.e. irrespective of, they have been initially formulated during legislative activity or during judiciary practice.

As one of most vivid examples of such document the arch criminally-rules of law the State of Georgia has acted developed during the period with 1811 on 1816. The given certificate differed, first of all, that he has made essential changes to the maintenance of separate institutes of criminal law of staff. The norms formulated during judiciary practice have undergone to changes not only positions of laws operating before, but also. Thanks to acceptance of this arch the legislator has processed and has simplified some of structures of crimes, and also has corrected and has fixed variety of questions of criminally-legal character which practically were completely regulated before by norms common law in the text of the law: rules of approach of the criminal liability for certain categories of persons, questions of partnership, relapse, etc. it is Thus rather characteristic, that qualitative changes of the maintenance have resulted and in qualitative transformation of structure of the document. The arch text represented uniform, logically complete system criminally-rules of law, consistently grouped on a subject sign in the chapters interconnected with each other and sections. The structure of the given document has reflected aspiration of its founders to division criminally-rules of law on what contained general provisions, and what fixed separate structures of crimes. So, for example, the norms opening the code, have been consolidated in sections «the Persons, capable to commit a crime» and «Accomplices of crimes»; after them rules of detection of intention in wrongful acts of the person, the basis of clearing of persons from the criminal liability, a rule of awarding punishment and other similar norms were described. Other part of the document has been devoted disclosing of concrete structures of the crimes grouped in differentiated on object of the criminal trespass of the head, such as «Crimes against staff and the people» or «Crimes and offences against justice».

The format of the document developed in Georgia considerably enough differed from earlier arches criminally-rules of law, created as during the colonial period, and the years which have followed finding by North American colonies of the independence. Taking into account that the given arch has fixed essentially other form of the criminal law in many respects reminding the best samples of the European codification, and also taking into account that he has made essential changes to the maintenance of criminal law of one of states, in the USA it is considered the first American criminal code [51]. It is important to specify, that in this case the term "code" should be understood in value high-grade branch kodifitsirovannogo the certificate. The matter is that the tradition of use of the term "code" in relation to «more or to less systematised arches of the written law» has deep roots in jurisprudence of the USA. It is connected by that earlier English word «code» could mean simultaneously both the code of laws or the code, and simply considerable law on volume. However named substantial and outwardly formal lines of the document developed in Georgia allow to rank it as a category of branch criminal codes unequivocally.

Thus advantages of a similar way of fastening ugolovnopravovyh norms are obvious enough. The criminal code was rather successful design not simply because it fixed more a wide range criminally-rules of law, applied in states that is why, he allowed to do it much more effectively and consistently. The code not only strukturirovanno fixed criminal interdictions and key principles of criminal law of states, but also resulted them in the maximum conformity with time requirements. Thanks to the completeness and accurate internal structure the criminal code was to the greatest degree favourable to lawyers, judges and ordinary citizens: it was capable to provide necessary availability and definiteness of criminal law of states to experts and the population, and also could act as an additional guarantee of protection of citizens from a possible arbitrariness from the state. Fastening in the uniform normative act of the ordered, edited rules of law approached in practice idea realisation about reception by the population of accurate representations about the legal status and served as a measure directed against misuses of right by officials. Taking into account these circumstances universal occurrence of criminal codes in territory of the USA was only a matter of time.

Summing up, it is necessary to recognise, that the period of formation of the USA as the independent sovereign state has introduced set of qualitative changes both in criminal law of states, and in mechanisms of its ordering. Development of criminal law of states occurred mainly under the influence of the tendencies which have developed still during the colonial period, and, as well as earlier, was predetermined by requirements of the population for strict delimitation of the right operating in this or that territory, and also interests of lawyers and judges for which work with standard sources was a part of their professional duties. An active gain of the criminal legislation,

Imposed on already existing weight of regulatory legal acts of the colonial period, and also the statement common law England as one of leading sources of criminal law of states again entered it into a disorder condition. As it mismatched interests of legal and civil community, states have been forced to resort to practice of ordering of own criminal law again. In whole its streamlining it was carried out by means of the audit of the right consisting in working out by states of complex consolidated laws and drawing up by them separate branch collections criminally-rules of law. Streamlining common law was thus carried out, as a rule, by means of the publication of collections of judgements. However in process of development of ways of streamlining of criminal law states gave the increasing attention to mechanisms of branch ordering ugolovnopravovyh the norms as which higher display the idea of creation of the criminal code has acted.

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A source: Kochemasov Artem Vladimirovich. Historical experience of codification of criminal law in the USA in XIX - the beginning of XXI century the Dissertation on competition of a scientific degree of the master of laws. Moscow -. 2015

More on topic § 2. Features of ordering of criminal law of colonies and states in formation of the USA:

  1. § 1. The first attempts of ordering of criminal law in North American colonies
  2. § 2. Modelling UK 1962 and its role in formation of modern criminal law of states
  3. § 3. Preconditions and development of idea of ordering of federal criminal law
  4. § 3. The comparative analysis of legal nature of consolidated laws of the USA and various kinds of ordering in frameworks Continental law families
  5. Chapter 1. Formation of ideologically-theoretical bases and preconditions of codification of criminal law in the USA
  6. § 3. Influence of ideas kodifikatsionnogo movements on ordering of federal criminal law
  7. Chapter 3. Features of codification of criminal law in a context of development of legal system of the USA in XX - the beginning of XXI century
  8. § 1. Kodifikatsionnaja activity in the USA in the first decades of XIX century and evolution of the maintenance and the form of criminal codes of states
  9. § 4. Prospects of development of codification of criminal law in the USA in XXI century
  10. § 1. Changes in legal system of the USA in XX century as the precondition of renewal of works on criminal law codification