"American and English Encyclopædia of Law," second edition, 1898; the latest and best work of the kind.

Article on Crime. "A Crime is more accurately characterized as a wrong directly or indirectly affecting the public, to the commission of which the state has annexed certain punishments and penalties, and which it prosecutes in its own name in what is called a criminal proceeding." (p. 248).

Crimes distinguished from civil injuries. In State vs. Williams, 7 Rob. (La.) 271, it is said: "The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this; that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity." (4 Blackstone Com. 5.)

These extracts from the works of well-known writers on jurisprudence should suffice to give us clear ideas concerning the origin and nature of crime and criminal law. We see that among primitive peoples criminal law had scarcely yet come into existence. The penal laws first developed were laws of tort, or injuries of man to man; and laws of sin, or offenses against the gods. But the idea of crime as a serious injury to society itself, and the punishment of criminals by society, obedient to the passion for vengeance and the dictates of ancestral custom, are found everywhere among primitive Aryans and all other races of men. As

turn to the original state of barbarity. All punishments which exceed the necessity of preserving this bond, are in their nature unjust." See Beccaria, chapter II., Of the Right to Punish.

"Every punishment which does not arise from absolute necessity," says the great Montesquieu, "is tyrannical." (Same chapter.)

that great authority, Sir Henry Sumner Maine, writes in Ancient Law (p. 372):

"It is not to be supposed that a conception so simple and elementary as that of wrong done to the state was wanting in any primitive society. It means rather that the very distinctness with which this conception is realized is the true cause which at first prevents the growth of a criminal law." "When the Roman community conceived itself wronged, the state avenged itself by a single act on the individual wrong-doer. "The trial of a criminal was a proceeding wholly extraordinary, wholly irregular, wholly independent of settled rules and fixed conditions."

Crime includes Misdemeanors. It is important that we should recognize this truth. There is no fixed line of moral heinousness beyond which all acts are crimes. That which is punished as a most serious offence in one age is often a simple misdemeanor in another, or perhaps no crime at all. On the other hand, harmless actions or petty misdemeanors of ancient days are now among our most troublesome and dangerous crimes. Is adultery a crime, misdemeanor, or civil injury? In New York it is legally a crime; in England, more of the nature of a tort, and in some countries it is simply a sin, unpunished by the law. Our ancestors very lightly regarded most forms of forgery and fraud, malicious injuries. to property, painful wounds and attempts at murder. We deem them serious crimes. What shall we say of drunkenness, of the sale of intoxicants, of failure to have one's children educated? Most people see nothing immoral in such conduct, but a few states have made these actions criminal. in recent years. The moral sense and intelligence of the community decide such questions, according to social needs, upon the plane of development attained.

The definition of Crime in the American and English Encyclopædia of Law (1898), is framed to include misde

meanors. On page 248 we read: "Although in common usage the word crime commonly denotes such offences as are of a deep and atrocious die, and similar faults and omissions of less consequence are comprised under the name of misdemeanors, yet "crime" and "misdemeanor" in legal language are synonymous terms and the word "crime" in a statute has frequently been held to include misdemeanors." This is clearly recognized in the Report on Forgery, by the Select Committee on the Criminal Law of England, 1827. "Forgery is made criminal by the Common Law, and by various statutes. At Common Law it is a misdemeanor only; under the statutes it is frequently a felony. But, unless in raising the crime to a higher class," etc. (p. 1).

Sir James Fitz James Stephen writes: "A large number of misdemeanors were created by statute at different times, but especially in the 18th and 19th centuries, which differ in no essential respect from the common crimes distinguished as felonies. For instance, to obtain goods by false pretences, to misappropriate securities intrusted to the offender as agent, solicitor or banker, and to commit many other fraudulent or mischievous acts, are, as far as moral guilt is concerned, on a level with theft."2

It is very necessary that we should grasp clearly the distinction between tort, sin, crime, and acts of war. The field of crime has spread to such an extent as to cover many actions formerly classed under these other heads.

A tort is essentially a private injury as distinguished from a public wrong. It is a harm inflicted by a man upon his

1Crime includes Misdemeanors. England: Maine vs. Owen, 9 B. & C., 595; 17 E. C. L., 456. New York: Matter of Clark, 9 Wend. (N. Y.), 212. Penna.: Lehigh County vs.. Schock, 113 Pa. St., 373. Ill.: Van Meter vs. People, 60 Ill., 168. For many more such decisions see page 250, A. & E. Ency. of Law, 1898. History of the Criminal Law of England, i, 489. The criterion of a delete or tort is that," the person who suffers it, and not the State, is conceived to be wronged." (Maine, p. 371.)

fellow man, not regarded as a wrong done the state, but giving rise to a civil suit for damages. In ancient times the injured man would have sought private vengeance, and a blood feud might have resulted. Later, it became customary to accept arbitration and pecuniary composition. Society gave to this arbitration a legal form and made the acceptance of the damages awarded compulsory, unless the plaintiff chose not to press his suit. Thus, for a tribesman to kill or steal from a man of another clan within his own tribe, was a tort demanding vengeance or compensation.

A sin is an offence against God, frequently punished as a crime by men. To kill one's blood brother was a fearful sin, punished by the community with the dread social doom of outlawry.

To kill or steal from a member of another tribe was an act of war, the weakening of a natural enemy and consequently praiseworthy. It was only very slowly and gradually that theft, murder, robbery and rape (within the social group) became crimes; regarded not merely as misfortunes or harms to an individual, but chiefly as wrongs to society itself, to be punished by society, utterly irrespective of the wishes of the persons chiefly concerned.'

Primitive man was, as Aristotle has well said, "the hardest of all animals to govern." The European Aryan was a sturdy individualist, passionate, rebellious at restraint, loving war and vengeance as his duty and his right-as that which makes a man. The blood feud had its use. It tended to consolidate the family group and to develop responsibility. It was a rough and terrible means of preserving peace; for even the boldest man would hesitate before bringing the vengeance of an entire kindred upon his house from genera

1 Maine, p. 370–371, and Encyclopædia Britannica (article on Crime): "In very primitive tribes, murder, robbery and rape are not crimes—not at least in the modern sense."

18

The Coming of Law

tion to generation. It was also a weighty reason for the developing of strength, courage and weapon skill. Every hand must guard its own head and every freeman his own home. Thus it made for social stability and warlike power.

The tribal state was but a weak institution, chiefly for military purposes. It punished a few acts as crimes because they had to be punished if the social group was to hold together, but at first it dared not interfere with individual vengeance, the right of private war. Arbitration and composition for harm were very early offered as a substitute for blood revenge, but even when the state became strong enough to make arbitration compulsory, it yet preserved for long (in its trials) the semblance of a purely voluntary agreement.❜ What primitive society needed most was strong, despotic law, to bind it firmly together, and give it strength and power to grow. Such law was most difficult to create and to enforce. It formed first where most needed, strengthening the outer shell of association, hardening the tribe for war. Just as in the evolving sphere of earth the outside crust forms and hardens first, while the inside matter is yet hot and molten, so in primitive human society, the outside shell of legal custom hardened over the unruly passions of men unused to restraint, whose explosive natures were continually driving them into fierce words and bloody deeds. In this stage of development, writes Steinmetz, there is as yet a kind of indifference to internal affairs, and only occasional punishment of differing characters (by death, expulsion or the like) takes place. The moral and disciplinary consideration of crime is entirely absent. There is as yet no proper compulsory state power.5 Actions considered crimes were necessarily very few, while intense popular abhorrence and 2 Maine, p. 374.

Hearn, pp. 430-1.

* See Bagehot's Physics and Politics, p. 21, and Hearn, p. 393. 'Hearn, pp. 430–432.

Steinmetz, chapter 5, book ii.