CHAP. I. such may be broken, yet it is not every breach of every law by every person in every capacity for which punishments are provided. In the case just mentioned of the law of inheritance, the law issues a variety of commands in reference to the property of the dead man. It commands all persons, except the heir-at-law, to abstain from it without special grounds. It commands the judges to adjudicate upon the existence of those special grounds, if lawfully required to do so, and it commands the sheriff to enforce the judgment which they deliver. The commands to the judges and the sheriff would in case of need be enforced by punishments, but the general command to the world at large, to abstain from intermeddling, is in general enforced only by the circumstance that, if men do intermeddle, they will have to pay damages and costs to the lawful heir. Unless their misconduct assumes such a form as to become theft, or some other act specifically forbidden under a specific sanction, it is not punished at all. Punish- The definition of crimes may, therefore, be conveniently tin "uLhcd restricted to acts forbidden by the law under pain of punishment. This definition, however, requires further explanation; for what, it may be asked, is a punishment? Every command involves a sanction, and thus every law forbids every act, which it forbids at all, under pain of punishment. This makes it necessary to give a definition of punishments as distinguished from sanctions. ments dis from sanctions. The sanctions of all laws of every kind will be found to fall under two great heads: those who disobey them may be forced to indemnify a third person either by damages or by specific performance, or they may themselves be subjected to some suffering. In each case the legislator enforces his commands by sanctions, but in the first case the sanction is imposed entirely for the sake of the injured party. Its enforcement is in his discretion, and for his advantage. In the second, the sanction consists in suffering imposed on the person disobeying. It is imposed for public purposes, and has no direct reference to the interests of the person injured bv the act punished. Punishments are thus sanctions, but they are sanctions imposed for the public, and at the discretion and by the direction of those who represent the public. ments dis. tinguished It may be worth while to observe that there is a distinction Chap. I. between a punishment and a penalty. The legislator some- pUnishtimes chooses to deter men from particular courses of conduct, not by affixing a specific punishment to acts done in pur- from suance of them, but by providing either that any one who penalties' pleases, or that particidar persons, if they please, may regard such acts in the light of private wrongs, and recover a specific indemnity in respect of them. This is the case with all statutes which authorize common informers to sue for penalties in respect of breaches of law, and also with regard to some of the provisions of the Eevenue Acts, under which the Attorney-General can proceed, if he thinks fit, as for a penalty. Penalties differ from punishments in the fact, that they are enforced at the discretion and for the benefit of the informer. They differ from damages in the fact that no personal injury has been done to the informer, and that the penalty which he recovers is in substance a reward for his vigilance in detecting a breach of the law, and not an indemnity for personal loss sustained by it. decisions on this This account of the province of criminal law is confirmed Judicial by several judicial decisions. The act by which parties to a suit are rendered competent witnesses does not apply to Point« "criminal proceedings," and the question has several times arisen, whether a particular proceeding was criminal within the meaning of the act. The result of the cases appears to be, that the infliction of punishment in the sense of the word just given is the true test by which criminal are distinguished from civil proceedings, and that the moral nature of the act has nothing to do with the question.* cludes Crimes being thus defined as acts punished by law, criminal Province of English law may be defined as that part of the law which relates to criminal crimes, and it will at once become apparent that these defini- law >ntions extend the sphere of criminal law considerably beyond many acts the narrow routine of the cases which usually occupy the not criminal courts. In this country an immense mass of affairs, which in other parts of the world fall under the head of civil Att.-Gen. v. Badloff, 10 Exch. 84. Compare Cattell v. Ireson, 27 L. J. M.C. 167. In Berry's case, Bell, Cr. Ca. 68, it was held that a bastardy summons is not a criminal proceeding. immoral. CHAP. I. administration, are transacted by the help of the criminal law. For example, the law of nuisances is a branch of the criminal law. A public nuisance is a misdemeanor punishable by fine and imprisonment, and it consists in doing anything which is an annoyance to all the Queen's subjects. It is under this head that questions about the legality of carrying on particular trades in particular situations, the liability to repair highways, and the sufficiency of their state of repair, the lawfulness of erections in rivers, on the sea-coast, or on or near bridges, and the like, are decided. The remedy for improper conduct in these respects is an indictment on which the offender is tried as on any other criminal charge. If he is convicted, an opportunity is in practice given him of abating tht nuisance; but if he failed to do so, substantial punishment would be inflicted. This peculiarity in our system may be traced to historical causes, which are more largely referred to and illustrated below. It is sufficient in this place to observe that they illustrate the general proposition, that the province of criminal law must not be supposed to be restricted to those acts which popular language would describe as crimes, but that it extends to every act, no matter what its moral quality may be, which the law has forbidden, and to which it has affixed a punishment. "Penal" would be a better phrase than "criminal" law, as it points out with greater emphasis the specific mark by which the province of law to which it applies is distinguished from other provinces; for the distinction arises not from the nature of the acts contemplated, but from the manner in which they are treated. Crimes frequently come under the cognizance of the law not only as crimes, but for other purposes, and as such form the subject-matter of laws which are not, in any sense of the word, penal. Many crimes, for example, are civil injuries, and as such may be made the subject of actions for damages independently of penal proceedings. This is the case with most assaults, with libels, and with some kinds of frauds. A person committing such acts may either be punished on conviction on an indictment, or compelled to pay damages, on a verdict in a civil action. The act remains the same in each case, though the consequences which it involves differ according to the mode in which it is CHAr. I. treated. This simple view of the matter avoids the difficulty, which Crimes has exercised some ingenuity, of attempting to distinguish and t0rts, between crimes and torts. The two terms do not exclude related. each other, and, therefore, cannot be distinguished. To ask whether an act is a crime or a tort, is like asking whether a man is a husband or a brother. Whatever is within the scope of the penal law is a crime; whatever is a ground for a claim of damages, as for an injury, is a tort: but there is no reason why the same act should not belong to both classes, and many acts do. Indeed, crimes may come under the cognizance of the law neither as crimes nor as torts. For example, bigamy is a cause of divorce; arson, by the party insured, would be a good defence by an insurance company to an action on a policy. In each of these cases, a crime would be judicially proved before a court of justice; yet the crime would be viewed by the court neither as a crime nor as a tort, but simply as an act affecting the status or the money liability of other persons. It follows from this that the consequences charged upon an act by law, and not the nature of the act itself, is the specific difference by which crimes are distinguished. classifica tion of cri Such being, in general, the nature of crimes and of criminal Natural law, what are the elements of which, from the nature of the case, it must be composed? The first and chief division is minai law. twofold. Every system of criminal law must be composed, first, of laws forbidding specified acts under specified punishments; and, secondly, of laws by which these general provisions may be applied to particular cases. The first of these divisions may be described as the law of crimes and punishments; the second as the law of criminal procedure. LAW OF PUNISH The law of crimes and punishments must consist of three Crimes parts: first, General principles, determining what are the AND elements which must concur in order to constitute an act of Ments. disobedience to a law; secondly, Definitions of crimes; and, thirdly, The apportionment of punishment. 1. Principles. 2. Defini tions. The law of criminal procedure consists of four parts 3. Xiiotfirst, The preliminary proceedings; including the taking ment of punish ment. 1.Instruc tion. CHAP. I. security, by imprisonment or otherwise, for the appearance at Procedure, the trial of the suspected person, the collection of evidence against him (called, in the French system, the instruction of the process), and his formal accusation; secondly, The regulation of the trial; thirdly, The rules governing the evidence produced at the trial; and, fourthly, The infliction of punishment. These divisions are inherent in the subject, and must exist, under some form or other, in every nation, and under every conceivable system. 4. Inflic tion of pu nishment. History. Plan of the present work. Independently of these broad general divisions, which must apply to every legal system whatever, certain features, peculiar to each particular system, affect the character of every part of it. The skeleton of the criminal law, in every country, is on the same general plan; but the shape of the members, their proportionate importance, and general appearance, differ widely; so that there is a corresponding difference in the functions which they are fitted to discharge. Laws, in different countries, may be, and are, made and abrogated in very different ways; they are contained in very different repositories; they propose to themselves different objects; they are animated by a different spirit; and these differences show their traces in every part of every system. In some countries the definitions of crimes are more complete than in others. In some, punishments are severe; in others, lenient. In some, the procedure is favourable to the accused; in others, to the prosecutor. The rules of evidence differ widely. In France, for example, they can hardly be said to exist at all. In England, they form one of the most prominent and characteristic parts of the system. The peculiar character of particular systems, in these and other analogous particulars, can be estimated only by historical inquiries. This general analysis of the province of criminal law is intended to explain the arrangement of this work. As its object is to give a general view of the criminal law of England, it begins by sketching the history of its construction. This forms the subject of the second chapter. The following chapters describe its different component parts in the order indicated above, examining first the general principles on which the subject depends, and then the particular institutions of |