The administration of justice has been already defined as the maintenance of right within a political community by means of the physical force of the state. It is the application by the state of the sanction of force to the rule of right. We have now to notice that it is divisible into two parts, which are distinguished as the administration of civil and that of criminal justice. In applying the sanction of physical force to the rules of right, the tribunals of the state may act in one or other of two different ways. They may either enforce rights or punish wrongs. In other words, they may either compel a man to perform the duty which he owes, or they may punish him for having failed to perform it. Hence the distinction between civil and criminal justice. The former consists in the enforcement of rights, the latter in the punishment of wrongs. In a civil proceeding the plaintiff claims a right, and the court secures it for him by putting pressure upon the defendant to that end, as when one claims a debt that is due to him, or the restoration of property wrongfully detained from him, or damages payable to him by way of compensation for wrongful harm, or the prevention of a threatened injury by way of injunction. In a criminal proceeding, on the other hand, the prosecutor claims no right, but accuses the defendant of a wrong He is not a claimant, but an accuser. The court makes no attempt to constrain the defendant to perform any duty, or to respect any right. It visits him instead with a penalty for the duty already disregarded and for the right already violated, as where he is hanged for murder or imprisoned for theft.
Both in civil and in criminal proceedings there is a wrong (actual or threatened) complained of. For the law will not enforce a right except as against a person who has already violated it, or who has at the least already shown an intention of doing so. Justice is administered only against wrongdoers, in act or in intent. Yet the complaint is of an essentially different character in civil and in criminal cases. In civil justice it amounts to a claim of right, in criminal justice it amounts merely to an accusation of wrong. Civil justice is concerned primarily with the plaintiff and his rights; criminal justice with the defendant and his offences. The former gives to the plaintiff, the latter to the defendant, that which he deserves.
A wrong regarded as the subject-matter of civil proceedings is called a civil wrong; one regarded as the subject-matter of criminal proceedings is termed a criminal wrong or a crime. The position of a person who has, by actual or threatened wrongdoing, exposed himself to legal proceedings, is termed liability or responsibility, and it is either civil or criminal according to the nature of the proceedings to which the wrongdoer is exposed.
The same act may be both a civil injury and a crime, both forms of legal remedy being available. Reason demands that in general these two remedies shall be concurrent, and not merely alternative. If possible, the law should not only compel men to perform their disregarded duties, but should by means of punishment guard against the repetition of such wrongdoing in the future. The thief should not only be compelled to restore his plunder, but should also be imprisoned for having taken it, lest he and others steal again. To this duplication of remedies, however, there are numerous exceptions. Punishment is the sole resource in cases where enforcement is from the nature of things impossible, and enforcement is the sole remedy in those cases in which it is itself a sufficient precautionary measure for the future. Not to speak of the defendant’s liability for the costs of the proceedings, the civil remedy of enforcement very commonly contains, as we shall see later, a penal element which is sufficient to render unnecessary or unjustifiable any cumulative criminal responsibility.
We have defined a criminal proceeding as one designed for the punishment of a wrong done by the defendant, and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff. We have now to consider a very different explanation which has been widely accepted. By many persons the distinction between crimes and civil injuries is identified with that between public and private wrongs. By a public wrong is meant an offence committed against the state or the community at large, and dealt with in a proceeding to which the state is itself a party. A private wrong is one committed against a private person, and dealt with at the suit of the individual so injured. The thief is criminally prosecuted by the State, but the trespasser is civilly sued by him whose right he has violated Criminal defamation, it is said, is a public wrong, and is dealt with as such at the suit of the State; civil defamation is a private wrong, and is dealt with accordingly by way of an action for damages by the person libelled. Blackstone’s statement of this view may be taken as representative “Wrongs,” he says, “ are divisible into two sorts or species, private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community; and ore distinguished by the harsher appellation of crimes and misdemeanours. ”
But this explanation is insufficient. In the first place, all public wrongs are not crimes. A refusal to pay taxes is an offence against the state, and is dealt with at the suit of the state, but it is a civil wrong for all that, just as a refusal to repay money lent by a private person is a civil wrong. The breach of a contract made with the state is no more a criminal offence than is the breach of a contract made with a subject. An action by the state for the recovery of a debt, or for damages, or for the restoration of public property, or for the enforcement of a public trust, is purely civil, although in each case the person injured and suing is the state itself.
Conversely, and in the second place, all crimes are not public wrongs. Most of the very numerous offences that are now punishable on summary conviction may be prosecuted at the suit of a private person , yet the proceedings are undoubtedly criminal none the less. We must conclude, therefore, that the divisions between public and private wrongs and between crimes and civil injuries are not coincident but cross divisions Public rights are often enforced, and private wrongs are often punished. The distinction between criminal and civil wrongs is based not on any difference in the nature of the right infringed, but on a difference in the nature of the remedy applied.
The plausibility of the theory in question is chiefly attributable to a certain peculiarity in the historical development of the administration of justice. Where the criminal remedy of punishment is left in the hands of the individuals injured, to be claimed or not as they think fit, it invariably tends to degenerate into the civil remedy of pecuniary compensation. Men barter their barren rights of vengeance for the more substantial solatium of coin of the realm. Offenders find no difficulty in buying off the vengeance of those they have offended, and a system of money payments by way of composition takes the place of a system of true punishments. Hence it is that in primitive codes true criminal law is almost unknown Its place is taken by that portion of civil law which is concerned with pecuniary redress. Murder, theft and violence are not crimes to be punished by loss of life, limb or liberty, but civil injuries to be paid for This is a well recognised characteristic of the early law both of Rome and England. In the Jewish law we notice an attempt to check this process of substitution, and to maintain the law of homicide, at least, as truly criminal “ Ye shall take no satisfaction for the life of a murderer, which is guilty of death : but he shall be surely put to death. ” Such attempts, however, will be for the most part vain, until the state takes upon itself the office of prosecutor, and until offences worthy of punishment cease to be matters between private persons, and become matters between the wrongdoer and the community at large. Only when the criminal has to answer for his deed to the state itself will true criminal law be successfully established and maintained. Thus at Rome the more important forms of criminal justice pertained to the sovereign assemblies of the people, while civil justice was done in the courts of the praetor and other magistrates So in England indictable crimes are in legal theory offences against “ the peace of our Lord the King, his crown and dignity ,” and it was only under the rule of royal justice that true criminal law was superadded to the more primitive system of pecuniary compensation. Even at the present day, for the protection of the law; of crime, it is necessary to prohibit as itself a crime the compounding of a felony, and to prevent in courts of summary jurisdiction the settlement of criminal proceedings by the parties without the leave of the court itself. Such is the historical justification of the doctrine which identifies the distinction between civil injuries and crimes with that between public and private wrongs. The considerations already adduced should be sufficient to satisfy us that the justification is inadequate.