of the thing itself; the common law at first knew of no such action. Hence the moulders of our common law divided property into two classes. Real property was that in respect of which a real action would lie, i.e., land and rights in or over land. Personal property was that in respect of which a personal action. would lie, i.e., things (or, as they preferred to call them, chattels) and choses in action. There was, however, one class of property which appeared to our ancestors to contain elements both real and personal, and to which they therefore gave the self-contradictory title of "chattels real." These consisted of leaseholds and other chattel interests in land; and the owner was permitted to enforce his right to property of this kind by a "mixed action." This classification of property still lingers in our law, though its divisions are unscientific and its nomenclature meaningless, if not misleading. An English lawyer is, therefore, still compelled to tabulate the different kinds of property in the following illogical manner-illogical, because it is based upon distinctions of procedure which are now obsolete: I. Real property consists of(i.) land; (ii.) rights in, to or over land. II. Personal property consists of— (iii.) chattels real; (iv.) chattels personal; CHAPTER VI. PUBLIC WRONGS. So far we have dealt with rights of property and rights of action (jura in rem, jura in re alienâ, jura in personam). These rights are all created and protected by the State, defined and regulated by its laws. The State will not regard as a tort every act which has caused damage—not even if the act be done maliciously with the intention of causing damage. The act must be in itself "unlawful; " and the law decides what acts are lawful, and what are not. Moreover no action lies to recover compensation for any harm or loss which is not the direct consequence of some wrongful act or omission of the defendant's. So with contracts. The State will not enforce every bargain which the parties may think fit to make between themselves. In some cases the State requires that the contract shall be reduced into writing and signed; in all cases it requires either that it shall be reduced into writing and signed, sealed and delivered by the parties, or that the person on whom the burden of the contract will rest shall receive some valuable consideration. The State will not enforce an illegal or immoral contract, or any contract which it deems contrary to public policy (such as a betting or wagering contract, or a contract by an occupier of land that he will not avail himself of the provisions of the Ground Game Act, 18801). The State will not as a rule enforce a contract made by an infant, though it will now enforce a contract made by a married woman. The State will not enforce a contract obtained by fraud, violence or undue influence, or an unfair bargain made with an expectant heir, or many contracts made with a professional money-lender.2 143 & 44 Vict. c. 47, ss. 2, 3. 2 See the Money-lenders Acts, post, pp. 718, 731. The State then creates, defines and regulates all civil rights. Nevertheless every civil right, as soon as it is created, vests in the individual person concerned. It becomes his property, and he may use it or not as he pleases. The State cannot compel him to bring an action if he is unwilling so to do, nor compel him to abandon his action if he wishes to continue it. We now pass to a class of cases which is governed by different considerations-to those violations of public right and those neglects of public duty which we call Crimes. In such matters the State assumes a sterner attitude, and speaks in more imperative tones. Such acts and omissions are forbidden under pain of fine or imprisonment. The laws which forbid such acts and omissions are "commands" in the strictest Austinian sense; they are enforced by stringent sanctions, and the State in issuing them is clearly an "uncommanded commander." The matter is no longer in the hands of a private person; it is the duty of the officers of the State to repress that which the State has declared to be hurtful to the community as a whole. A crime is a wrongful act or omission which the State punishes in the interests of the community at large. Every offence of a public nature, every violation of a right of the public, every neglect or omission of a duty owed to the public, is a crime. So is any act which is "of a public evil example,' such as the performance of an immoral play, the sale of obscene books or pictures, or any other act of public indecency. An unsuccessful attempt to commit a crime is a crime, if the offender has done all in his power, or nearly all in his power, carry his criminal intention into effect. An omission to do one's duty will be a crime if it is likely to involve serious consequences to others, such as loss of life or limb, or permanent injury to health. Gross negligence, even in doing a lawful act, may sometimes also be a crime. to But by no means every crime is a tort. It is not essential to constitute a crime that any member of the public should 1 2 Hawk. P. C., c. 25, s. 4. actually sustain injury or inconvenience. No private individual, for instance, has any right of action for damages because another has unsuccessfully attempted to obtain money from him by false pretences, or has forged his name to a cheque so clumsily that no one is deceived by it. These and many other wrongful acts, then, are crimes but not torts. Again, it is not necessary that every act which the State thus prohibits should be in itself morally wrong. It often may be necessary, in the interest of the community at large, that some act innocent in itself should be forbidden, and that those who disregard the prohibition should be punished. An act or omission, which in ordinary circumstances can do no harm, may become harmful if done at a particular time, or in a particular place, or in other special circumstances. Thus the manufacture of gunpowder is in itself an innocent and indeed a useful act, and when manufactured it must be stored somewhere. But it is a danger to the public, and therefore indictable as a nuisance, for any one to manufacture or to keep in large quantities gunpowder or any other explosive or inflammable material in a town or closely inhabited place. Again it was always regarded as a crime by the common law of England for any one knowingly to send to market for sale as human food. meat which was unfit for human consumption. But ignorance is easy to plead and difficult to disprove, and ignorance in such a matter is gravely culpable whenever it endangers human life and health. Hence by a modern statute it has been made a misdemeanour for any one, even unknowingly, to send such meat to market to be sold as human food.3 But it may be asked, As not every wrongful act is a crime, and not every criminal act is in itself wrongful, on what principle does the State determine what acts it will forbid and punish? What test does the State apply to determine whether it will place a particular act or omission in the category of crimes, or only in the less obnoxious list of torts? The answer is that the only test which can be applied is that which is or should be the touchstone of every law, namely, the greatest happiness of the greatest number. The State repress that which the needs of the nation at any given moment require to be repressed. Our ancestors were content must 1 R. v. Lister (1857), Dearsl. & B. 209. 2 Shillito v. Thompson (1875), 1 Q. B. D. 12, 14. with a simple code of criminal law, which would be wholly inadequate to meet the necessities of a more complicated civilisation. As commerce spreads and the luxuries of life increase, the opportunities for fraud and violence multiply, and new kinds of crime are constantly invented, against which the people must be protected by fresh legislation.' Hence it is very difficult to reduce crimes to any scientific classification, or even to draw a strict line of demarcation between a crime and a tort. A crime then is the breach of a duty imposed by law on every citizen for the benefit of the community at large; a tort is the breach of a particular duty owed to an individual. The distinction, nevertheless, is of a somewhat accidental character. It is not based on any clear logical principle, but rather finds its explanation in history. At different periods, different acts have been regarded either as tortious or as criminal, according to the prevailing sentiment of the day. Many acts are now criminal in England which were formerly matters of purely civil jurisdiction. In Roman law theft was a crime as well as a tort; but we consider it solely a crime. The Romans regarded adultery as a crime; in English law it is a civil injury, giving a right to damages against the adulterer. Some writers on jurisprudence tell us that a crime is an injury which directly affects the State, while a tort directly affects the individual. But most crimes directly concern an individual; take, for instance, larceny and murder. Other writers say that the substantial distinction lies rather in the remedy pursued: when the wrongful act is a crime, the State prosecutes and punishes the offender: when it is a tort, the remedy is left in the hands of the individual aggrieved, who may sue for damages or not, as he pleases. But this distinction also is far from satisfactory. We often hear of "private prosecutions; " and indeed it is seldom that the State initiates any criminal proceeding of its own accord: it generally waits for some individual to set it in motion. The 1 Quaeritur, ut crescunt tot magna volumina legis ? In promptu causa est, crescit in orbe dolus." Per cur. in Twyne's Case (1601), 3 Rep. at p. 82 a; 1 Sm. L. C., 12th ed., at p. 4. |