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Journal of Criminal Law and Criminology Volume 50 Article 13 Issue 1 May-June Summer 1959 Criminal Procedure and Civil Rights G. Douglas Gourley Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation G. Douglas Gourley, Criminal Procedure and Civil Rights, 50 J. Crim. L. & Criminology 71 (1959-1960) This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. POLICE SCIENCE CRIMINAL PROCEDURE AND CIVIL RIGHTS G. DOUGLAS GOURLEY The author is head of the Department of Police Science and Administration at Los Angeles State College, Los Angeles. Mr. Gourley retired in January 1957 as an Inspector in the Los Angeles Police Department after 20 years of service. Included in his assignments in the Los Angeles Department was that of Commander of the Training Division, and in addition he has served as an Instructor of Police Science Administration at the University of Southern California before assuming his present duties at Los Angeles State College. Mr. Gourley is author of Public Relations and the Police (Charles C Thomas Publisher) and has published a number of professional articles including several in this Joumal.-EDITOR. Many a law enforcement officer has complained, Even before that far off date, when man first either vocally or to himself, that often it appears started to regulate his brother's conduct, he has that the present rules of criminal procedure were been concerned with machinery for the administra- designed for the protection of the guilty, rather tion of justice. In the day of the wooden shield and than the efficient administration of criminal war dub there were no nice distinctions made be- justice. To some, rules of procedure seem to place tween crimes and civil wrongs. Disputes were hurdle after hurdle in the path of speedy and ag- settled by physical means and either the plaintiff gressive law enforcement. In reality they are de- or defendant was carried off the field. The first signed to protect the individual from the arbitrary improvements in the administration of justice or capricious exercise of authority by despots and were characterized by attempts to regulate private persons in public office and other high places; they combat with various rules and standards, rather are based on a philosophy which maintains that than to establish a system of criminal law. It was every defendent is entitled to a fair trial and that not until adequate mores and customs were de- it is better to permit several guilty persons to go veloped sufficiently to maintain at least a code of free than to convict one who is innocent. unwritten law that personal grievances could be In order to understand the philosophy and settled by appeal to judges. It was not until the mechanics of criminal procedure as it exists today tribe, and later the state, assumed its obligations in America it is necessary to have some familiarity as administrator of justice, that criminal procedure with the history of our theory of government, became an official prosecution, rather than an un- particularly those facets which deal with the age official private skirmish. After personal standards old struggle of the common people in all countries had finally given away to collective group ideas of to obtain and preserve the fundamental human right and wrong, legal standards and ethical con- rights and liberties which we refer to today as civil cepts began to develop. rights and civil liberties. ThE ANTIQUITY OF CIVIL RIGHTS THE BEGINNINGS oF CInUnNAL PROCEDURE Interwoven throughout the fabric of criminal Our theory of government, which embraces procedure as we know it in America today, is the criminal procedure, developed through many cen- concept of civil rights and civil liberties. Contrary turies in England before its introduction to the to popular and contemporary impression, civil western hemisphere. This political development rights were not initiated by the misappropriation played a major role in determining criminal proce- of the King's tea in Boston Harbor. Civil rights in dure as it is administered today. In order to under- a varying degree are as old as mankind. They have stand the theory and purpose, the "why" of appeared in ancient civilizations and then been criminal procedure, it is necessary to briefly review lost to reappear hundreds of years later. Each new the history of man's struggle for freedom and nation that has recreated them always claims to liberty. have invented something new. G. DOUGLAS GOURLEY [Vol. so GREECE AND RoME ment and civil liberties. The Anglo-Saxons in Pre- According to western standards, civil rights are Norman times utilized numerous assemblies and of fairly recent origin. It would be entirely mis- courts in which all free-men were encouraged to participate. In many cases these were little more leading to say, however, that civil rights originated justice was in Anglo-American culture. Ancient Greece and than old tribal gatherings in which determined by common council. later the Roman Empire had many traces of civil rights similar to our western system today. In Although there are those who claim otherwise, it would appear that civil rights have developed Athens particularly during the Fifth Century B.C., In any a form of civil liberty was a right of the citizenry. through enlightened political progress. event the very foundations of Anglo-American civil Equal opportunities for participation in govern- periods of ment, trial by jury, to be confronted by witnesses, and criminal procedure developed during benevolent despotism in the Norman era of English and be judged by one's peers was guaranteed ma- during Athenian Democracy. True, the society of history. Indeed, it seems strange that the chinery of our present judicial system should find ancient Greece was relatively simple, and her civil its birth during the totalitarianism of medieval rights concepts could hardly be compared to at first modern western procedure, but she did guarantee days. Actually, criminal and civil procedure existed only as a feudal expediency and civil rights her citizenry an equal opportunity to practice the applied to the few only in unwritten feudal law customs of her particular culture. It would be stretching things to say that the and custom. Romans adopted and practiced a system of civil AssIzEs OF HENRY II rights to any extent. During the Republic they came about as close to anything resembling civil Among the first landmarks in the development rights as in any period of their history. We are in- of the English judicial system were certain of the debted to the Romans, for political theory although assizes or decrees of Henry II. Most important of they did not practice it to any great extent them- these was the Assize of Clarendon in 1166, which selves. For the following theories, basic to our own laid down the outline of a new court system. Prior law, we must give credit to the Romans: the social to this time the courts were either local affairs contract theory (that government originated as a administered by the feudal nobility or the church. voluntary agreement among citizens), the idea of There was no centralized administration of justice popular sovereignty (that all power ultimately except for a few royal traveling judges sent out on resides with the people), the principle of the circuit by the crown. More specifically, the Assize separation of powers, and the belief in the equal- of Clarendon created permanently the system of ity and brotherhood of man. It should be remem- circuit judges, and was the first attempt to write bered, however, that when we connect civil rights laws in contrast to the mere rewording of tradition with the ancient peoples of Greece and Rome, and custom. we apply this principle to only a fraction of the The Assize of Clarendon transformed into writ- population. Fifty percent of the population of ten law the Norman custom of utilizing witnesses Athens was slaves, and in the later days of the to give information under oath to the king's offi- Roman Empire only a small percentage of the pop- cials. It ordered the sheriffs to select certain bodies idus could claim the privileges of citizenship. Al- of men who were expected to report all crimes though this is a far cry from civil rights as we which the witnesses thought should be tried. This know it today its application within a particular is undoubtedly the direct ancestor of our modern nation seems to be only a matter of degree; rarely grand jury. The "presentments" of Henry's juries if ever has its administration embraced the entire were turned over to the royal judges on circuit, citizenry. Today in our own nation its scope has who then tried the accused persons. broadened, and its guarantees have become more THE MAGNA CARTA extensive. There are those who will contend, how- ever, that even in America its application is not About this time (1215) there came into existence universal. an instrument which historians point to as the "corner-stone of English liberty". Actually, it was THE ANGLO-SAXON EvOLUTION no more than a feudal agreement between a power- The English peoples have always maintained a ful nobility and an unruly king. John I was a rogue strong inclination towards representative govern- even for Thirteenth Century England. His open 19591 CRIMINAL PROCEDURE AND CIVIL RIGHTS corruption and thievery abused the feudal code to it had never been before.

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