PRINCIPLES

OF

THE CRIMINAL LAW.

BOOK I.

INTRODUCTORY CHAPTER.

CRIME.

The term "crime" admits of description rather than definition. There are no certain and universal intrinsic qualities which at once stamp an act with the character of a crime. We term a flagitious act a crime rather on account of its consequences, than from regard to any such intrinsic. characteristics. Thus, turning to one of the most satisfactory explanations of the term under consideration, we learn that it is "an act of disobedience to a law forbidden under pain of punishment." (a)

The question at once presents itself, what are the distinguishing marks of "punishments?" This will, perhaps, be seen most clearly by a contrast. Sanctions (that is, evils incurred by a person in consequence of disobedience to a command, and thus enforcing that command) fall under two heads:

1. Those which consist in the wrong-doer being obliged to indemnify the injured party, either in the way of damages or of specific performance.

2. Some sufferings experienced by the wrong-doer.

(a) Fitz. St. 1.

In the first case, the enforcement of the sanction is in the discretion of the injured party (or his representative), and its object is his advantage.

In the second case, the sanction is imposed for the public benefit, and is enforced or remitted at the discretion of the sovereign body,(b) as the representative of the public; such discretion being exercised according to law. (c)

Here we arrive at the true ground of distinction (or rather difference, inasmuch as the two terms do not exclude each other, and therefore can not be distinguished (d)) between crimes and civil injuries or torts. The difference is not a difference between the tendencies of the two classes of wrongs, but a difference between the modes in which they are respectively pursued; that is, whether as in the first or second of the cases mentioned above.(e)

That there is nothing in the nature of a crime which, per se, determines that a particular wrongful act should be necessarily relegated to the category of crime, two considerations will suffice to show. First. In different countries, and at different eras in the history of the same country, the line between civil and criminal is, and has been, utterly different. For example, at Rome theft was regarded as a civil injury, for which pecuniary redress had to be made. And we have only to point back to the Anglo-Saxon system, to illustrate the narrowness of the domain of criminal law in rude societies. The second consideration is, that the same wrongful act is regarded as a crime or a civil injury according as it is viewed, and proceedings are taken with reference to the one or the other sanction. In the English law, the best examples of this are libels and assaults. The same writings, or

(b) Sometimes the exercise of this discretion is deputed to some member of the sovereign body, e. g., in England, to the king or queen (c) Fitz. St. 4; Austin, 518.

(d) "To ask whether an act is a crime or a tort, is like asking whether a man is a husband or a brother." Fitz. St. 7.

(e) Austin, 417. A good description of crimes having in view the true ground of difference, is given in 1 Bishop Crim. L. 2 43: "Those wrongs which the government notices as injurious to the public, and punishes in what is called a criminal proceeding, in its own name."

the same actions, may be made the subject of civil or of criminal proceedings. If A. write of B. that he is a swindler, B. may either indict A. for the crime, or bring an action against him for the civil injury.(f)

It may be well to interpose an explanation of the courses open to the injured person, when the same wrong is both a crime and a civil injury. He has not always the power of choosing in which way he will proceed. The rule is based on the distinction of crimes into felonies and misdemeanors.(g) In the case of felonies, the crime must be prosecuted before civil redress can be sought from the wrongdoer. In misdemeanors there is no such distinction; either proceeding may be taken first, or both may be pursued concurrently.(h) (1)

Before leaving the subject of the difference between crimes and civil injuries, two other false and groundless distinctions may be adverted to. Firstly. The distinction does not consist in this, that the mischief of crimes (as a class) is more extensive than that of civil injuries (as a class); nor, secondly, in this, that the end of the sanction in the case of crimes is prevention, in the case of civil injuries redress to the injured party.(1)

How nearly the two classes are related, even when the act can not be regarded as common to both, an example will serve to show. A. knowingly, fraudulently, and with intent to deceive B., sells him a quantity of beer, short of the just measure. This was held to be only an inconvenience. and injury to a private person, which might have been

(f) Austin, 417, 518.

(h) Addison on Torts, 31, 33.

(c) v. p. 9.

(i) Austin, 417, 520.

(1) In England, it is the duty of the injured person to institute and direct the criminal prosecution. In the United States, the injured person may, and ought to, be instrumental in procuring the arrest of the offender; but it is neither his duty nor his right to take any further part in binging the charge before the grand jury, or in conducting the prosecution; the state's attorney has the sole control. Hence, generally, in the United States, the rule no ionger exists, that a felony must be criminally prosecuted before reparation can be recovered from the wrong-doer in a civil action. The practice, however, is not uniform. Cases and statutes are cited in 1 Bishop Crim. L., Ed. 1868, 28 556-562