2. Extraordinaria crimina, crimes for which no special procedure or punishment was provided: the punishment being, within limits, left to the discretion of the judge and the prosecution to the injured party.
3. Privata delicta, offences for which a special form of action was open to the injured party, e.g. actio furti.
The multiplicity of tribunals under the republic was replaced under the empire by a complete organization of the judiciary throughout the districts (dioceses) under the supervision of the emperor in his privy council (see Maine, Ancient Law, ed. 1906, p. 393). Public prosecution under the empire began by arrest of the accused, who was taken before an eirenarcha, who examined him (by torture in the case of a slave or parricide) and sent him on for trial before the praeses of the diocese (διοίκησις). Private prosecution followed, a procedure closely resembling that of civil actions, beginning with citatio (summons), followed by libellus or accusation, and appointment of a day for hearing. The right of either party to call witnesses was very imperfectly established.
The early laws of the Celtic races are preserved as to Wales in the laws of Hywel Dda, and as to Ireland in the Book of Aicill and other Brehon law tracts, which are professional collections of precedents and formulae made Celtic law. by the hereditary law caste (Brehons), whose business it was “to pass sentence from precedents and commentaries.” (See [Brehon Laws].) The development of Celtic law was arrested by the Saxon and Anglo-Norman conquest: but the materials preserved indicate an origin common with that of Germanic law.
The special characteristics of Irish criminal law, if it can be so called, were:—
1. The law was customary and theoretically unchangeable, and no legislative or judicial authority existed to alter or enforce it.
2. All crimes were treated as wrongs, for which compensation was made by assessment of damages by a consensual tribunal whose power to make awards depended on submission of the parties and the ultimate sanction of public opinion or custom. A customary tariff for compensation existed for all offences from wilful murder downwards. No crime was unamendable. The Irish law recognized a body price or compensation (S. bot) and an honour price or eric (S. wer), for which the family or tribe of the offender was collectively liable; but there is no clearly ascertained equivalent to the Saxon wite, or fine to the chief.
The laws of the Germanic tribes, so far as preserved in the Germania of Tacitus, and in the compilations of customs known as the Salic and Ripuarian laws, the Leges Barbarorum, the Dooms of Æthelberht and the collections of Germanic law. Anglo-Saxon law and custom (to be found in Thorpe’s Ancient Laws and Institutes of England), do not indicate any adequate or definite division between crimes and causes of civil action, but, like the laws of Babylon, recognize the system and contain the tariffs of compensation for wrongs. The idea of the compensation was originally to put an end (finis) to blood feuds and private war or vengeance.
These laws formed the foundation of the criminal law of Germany, including the Netherlands, of England and of Scandinavia. But in each country the development of criminal law has been affected by influences other than Germanic, mainly consisting in an infusion more or less great of ideas derived from Roman law. In England under Alfred some part of the Levitical law (Exod. xxi. 12-15) was incorporated, just as in 1567 the criminal law as to incest in Scotland was taken bodily from Leviticus xviii.