distinction surely cannot depend upon differences of procedure which are accidental rather than essential. A third test has frequently been applied in modern times -a somewhat topsy-turvy test; for it makes the nature of the act depend upon the ultimate result of the proceedings which may or may not be subsequently taken against the wrong-doer. If the proceedings end in the infliction of fine or imprisonment upon him, then he has committed a crime; if, however, they end in a judgment against him, awarding the plaintiff a certain sum of money as damages, then his act was a tort and not a crime. This is a practical distinction, no doubt, and one which has been frequently applied in our Law Courts. But is not this putting the cart before the horse? It seems somewhat illogical to make the quality of the wrongful act depend upon its consequences, not to the person injured, but to the wrong-doer. This test, in short, does not go to the root of the matter, or disclose mental basis for the distinction. any funda We venture, therefore, to submit the following definitions as a clearer statement of the essential difference between a crime and a tort : A crime is a wrongful act of such a kind that the State deems it necessary, in the interests of the public, to repress it; for its repetition would be harmful to the community as a whole. A tort is a wrongful act which gives the person injured a right to be compensated by the wrong-doer for the injury done him. But it must be confessed that this distinction between a tort and a crime was unknown to our Saxon and Norman ancestors or at all events was wholly ignored by them. It has been stated that all nations in the earlier stages of their civilisation recognise only torts, for they have not yet risen to the conception of a crime. It would be more correct, however, to say that early civilisations possessed a body of law which dealt with a group of miscellaneous offences, some of which resemble our modern crime, while others are more analogous to the modern tort. Still, even in Anglo-Saxon society there was the "wer" as well as the 1 See, for instance, the judgments in Cattell v. Ireson (1858), E. B. & E. 91, and in Seaman v. Burley, [1896] 2 Q. B. 314. "wite" in respect of most penal offences; and in Cnut's time there was a clear list of the King's "rights" (hám-sócne [burglary], flymenafyrmie [harbouring of runaways], mund-bryce [breach of the peace], &c.). The Norman Kings and still more the Plantagenets built up a strong central criminal jurisdiction, which was enforced either in the King's own Court or in the county courts by the King's visiting justices. Nevertheless, appeal of felony was not for centuries abolished' and was at first no doubt encouraged, at least negatively, the King being concerned rather with the fines to which he was entitled than with the crimes themselves. It was not till the reign of Henry VIII. that there came into vogue the system of prosecution by indictment, which was a nearer approach to our modern criminal procedure. The history of our law thus ever disappoints those who expect to find in it any scientific theory or nice analysis of modern jurisprudential conceptions. It follows from the above definitions that the same wrongful act may be both a tort and a crime; for an act which injures an individual and entitles him to compensation may at the same time be such that its repetition would be most harmful to society. So in a few cases a breach of contract may be a crime. But these coincidences in no way affect the position, or alter the action, taken by the State with reference to an act which it has forbidden under pain of punishment. In such cases the wrong-doer is liable to proceedings of two kinds-the individual whom he has injured may bring a civil action against him for damages: the State may prosecute him for the crime which he has committed. Nevertheless the object of the criminal proceedings will be in every case to punish the offender and to prevent any repetition of the offence; the object of the civil proceedings will be to compensate the person injured by giving him damages or other relief. The person injured conducts the civil action, irrespective of the Crown; the Crown conducts the prosecution independently of the plaintiff. Only the plaintiff can settle the action; only the Crown can pardon the crime. When the same wrongful act is both a tort and a crime, no one can bring an action for damages for the tort unless he has suffered some special injury over and above what every one else has sustained. The mere fact that A. has committed a crime is no reason why all the citizens of London 1 It was not absolutely abolished till 1819, though it had then long been obsolete : see Ashford v. Thornton (1818), 1 B. & Ald. 405. 2 See post, p. 106. should claim damages from him; each plaintiff must show a separate loss peculiar to himself. Thus, a conspiracy by two or more persons to do an unlawful act is in itself a crime. In order to sustain an action for such a conspiracy the plaintiff must not only prove the conspiracy; he must also show that some wrongful act was done in pursuance of it by the defendants which has caused some special or particular damage to himself.1 It is always, however, a defence to a charge of crime that the mind of the accused did not go with his act. He must know what he is doing, and he must know that what he is doing is wrong. He must possess both will and judgment and be free to exercise both. Hence no man can commit a crime when he is asleep or has been thoroughly drugged; but drunkenness voluntarily produced is no defence in ordinary cases. No infant under seven years of age can commit a crime. Coercion and extreme necessity are defences in all save the gravest cases. A lunatic will be punished if he knows both what he is doing and that he ought not to do it, although his desire to do it may be prompted by some delusion. But he will not be liable where the delusion is of such a kind that, if the facts were as he supposed, his act would be justifiable. So, if a criminal act be committed under a reasonable mistake as to a matter of fact, the prisoner's guilt depends on whether he would still be liable if the facts were as he supposed. A mistake as to the law excuses no one. In ordinary cases the burden of proving such facts as somnambulism, lunacy, duress and mistake lies on the prisoner. For the law presumes that every one of full age knows what he is doing, knows right from wrong, and knows (and therefore intends) the natural consequences of his act. 1 See post, pp. 625 et seq. CHAPTER VII. REMEDIES. LAW not only creates rights; it also provides remedies for wrongs. A law, as we have seen, is a rule of conduct which the State prescribes and enforces. It is prescribed by substantive law, and enforced by adjective law. In other words, substantive law deals with rights and duties, adjective law with remedies. The wisest measure conferring rights or imposing duties will be inoperative, if no adequate remedy be provided in case those rights are violated or those duties neglected. A defect in the machinery by which an Act is to be enforced will often render that Act a dead letter. It is the boast of English law that "there is no wrong without a remedy." But this boast is not wholly justified. There are certain wrongs for which the law, on grounds of public policy, allows no redress. Thus no action will lie for certain acts of State, or for defamatory words uttered in Parliament or by a judge on the bench. Again the remedy for a wrong may in some cases be barred, although the right is not extinguished. In such cases the remedy may sometimes be revived. As a rule, the remedy must be sought in the Law Courts. But there are a few cases in which a person injured may "take the law into his own hands" and obtain redress without legal proceedings. Thus he may enter upon his own lands, or retake possession of his own goods, whenever he can do so peaceably; he may enter upon the lands of another to abate a private nuisance, or to distrain for rent in arrear. But in most cases he must have recourse to litigation. There are two kinds of remedies-criminal and civil. When the State proceeds to enforce the rights of its citizens by punishing those who violate them with fine and imprisonment, the proceedings are criminal. When the State compels wrong-doers to compensate those whom they have injured, and to abstain from any repetition of the wrongful act-when it insists on the due performance of contracts and the payment of damages in case a contract is broken-the proceedings are civil. Criminal proceedings are heard in the following courts:— Magistrates' Courts. Borough Quarter Sessions. County Quarter Sessions. The Central Criminal Court. The King's Bench Division of the High Court of The Court of Criminal Appeal. The House of Lords. In criminal courts the proceedings usually commence with a summons, bidding the accused appear in court before the magistrates on a certain day in some cases a warrant will be issued at once for his arrest. Simple matters are disposed of summarily by the magistrates. Graver cases are sent to Quarter Sessions or to the Assizes for trial by a jury. In these graver cases, the prosecution states in detail the precise charge against the prisoner in a document which is called an indictment. The trial commences by the accused person being called upon to enter the dock and plead to the indictment preferred against him. But no one now can be called upon to do this, unless (a) he has been committed by justices of the peace to take his trial there on that charge, or (b) the consent or direction in writing of a judge of the High Court or of the Attorney-General or Solicitor-General to the presentation of the indictment has been given.1 In some few cases the prisoner must state his defence in a written plea; but, as a rule, he merely pleads "Guilty" or "Not guilty" orally from the dock. If he pleads guilty, or if after pleading not guilty he is tried and convicted, he may 1 Grand Juries (Suspension) Act, 1917 (7 Geo. V., c. 4). |