have been largely employed, that the prosecution of crimes has been left very much to the public at large, that a trial has been conducted in much the same form and spirit whether it would end in sentence of death or in judgment for damages. But, for all this, a civil action is one thing, a criminal prosecution is quite another. few contrasts should be noted at once.

one.

A

Of course, though a wrong is often no crime, and a crime is often no wrong, still there are many acts which are both wrongs and crimes. A man may be guilty of high-treason or many other crimes against public order without giving any one a cause of civil action; and even of crimes which are classed as offences against property, many can be committed without any one being injured; the forger is punished though he has not defrauded any On the other hand, the notice-board which tells us that "Trespassers will be prosecuted" is, if strictly construed, a wooden falsehood; a mere trespass on the land of another may be the subject of a civil action, but not of a criminal prosecution. Still, very often the same act is both a crime and a wrong. An assault is a case in point, and so is a theft. The defamatory libel that is a wrong is, at least very generally, a crime also. But, with a few exceptions, the rule holds good in England that no remedy or redress can be had in criminal proceedings. One exception may serve to illustrate the rule : the civil remedy of judicial separation can be obtained by a wife against her husband in criminal proceedings founded on an aggravated assault.1 But this is modern and still anomalous. Indirectly a prosecution may do

1 Statute, 1878, chap. 19. In the exercise of their summary penal jurisdiction magistrates can sometimes give a small remedy in the form of "amends" or "compensation."

One who has been

the person wronged a great service. libelled may clear his good name as effectually by prosecuting his libeller as by bringing a civil action; but the one proceeding will give him nothing, the other will give him compensation; the one will lead to the criminal's punishment, the other will not.

Then, again, though the crime be a wrong, the person wronged has no exclusive or peculiar title to prosecute the offender. In this country any person can prosecute any person for any crime. But a prosecution is theoretically a proceeding on the part of the Queen, and she has two checks upon the power of the prosecutor. She can pardon crimes, whether before or after trial, and can also stop criminal proceedings; the one power is exercised by the Home Secretary, the other by the AttorneyGeneral; but the Queen cannot forgive a wrong done to one of her subjects, or stop a civil action which he brings. On the other hand, a person wronged by a crime can release the offender from the claim for civil redress, but not from the penal consequences of his act; an agreement not to prosecute would, at least in most cases, be void, and in some cases the making of it would itself be a crime. It has also been supposed that if a wrongful act is a felony the person wronged cannot come by his civil remedy until the offender has been prosecuted; but it has become doubtful how, or even whether, this rule can be enforced, and certain that the offender cannot rely on his unprosecuted crime as defence to a civil action. Lastly, criminal proceedings will not (if we neglect one or two small matters) prevent civil proceedings, nor will a civil action prevent a prosecution; the thief is liable to be both punished and compelled to make redress.

But the suggested division of our subject between

Civil Justice and Criminal Justice would not be exhaustive unless we used the word criminal in a wide sense. As we shall hereafter see, there are two main methods of getting a man punished: (1) an indictment, which will lead to a trial by jury; (2) summary proceedings before magistrates, in the which there will be trial without jury. Now, some of the misdoings, the indictable offences, which might be punished by the former method and very many of the misdoings which are punished by the latter cannot be called crimes, unless that word may import but little blame or none at all. Against a man who being bound by law to repair a bridge has left it unrepaired, proceedings may be taken which in form will be much the same as those to which he would be open if he had perjured himself, for he has committed an indictable misdemeanour. This may be considered an exceptional case, and the graver criminal procedure is not often used, save when there is a charge of what all would call a crime. But with the summary procedure this is not so. Many serious offences may be punished by such means, but also those small breaches of public law of which an honest and law-abiding man may well be guilty. If we call these crimes, then Parliament in its every session invents many new crimes. For such offences we have no shorter technical term than offences punishable upon summary conviction. It must be noticed however that if we should depart somewhat from common usage in calling these offences crimes, still we should not depart from a usage which has been sanctioned by our courts and statutes. Proceedings before a magistrate which may end in the infliction of a small fine upon one who has not sent his child to school, or who has beaten his carpet in the street, are, according to our

books, criminal proceedings, and certainly they are proceedings which end in punishment, not in redress or relief.

However, it may save misunderstandings if we, for our own purposes, adopt the following convention: a crime shall be an indictable offence, one for which a man may be indicted by a grand jury and tried by a petty jury; a minor offence shall be one for which the offender cannot be indicted, but can be punished after trial without jury. It will be convenient at once to add that in our books of criminal law it is written that " every crime is either treason, felony, or misdemeanour." 1 The word treason may speak for itself. The distinction between felonies and other crimes is very old; it comes to us from a time when almost all felonies were capital crimes, and when it was nearly, or quite, correct to define a felony as a crime for which a man forfeits lands and goods. In course of time the distinction has become capricious, and of no great substantive importance; that is to say, we know little about the punishment that a criminal will get when we know only that his crime is felony or (as the case may be) misdemeanour. On the whole, a felony will be a bad crime, but there are bad crimes which are not felonies; perjury, for instance, is a misdemeanour, and the distinction between the larceny which is, and the obtaining by false pretences which is not, a felony, is often very subtle; both would be called theft by any but lawyers. This distinction still complicates criminal procedure; for there is often one rule for felony, another for misdemeanour; probably this old classification of crimes will disappear before long, but its existence must be remembered.

There are some apparent anomalies which deserve a 1 Stephen, Digest of Criminal Law, art. 15.

moment's notice. In this country the ordinary civil procedure has been often employed for what in substance was a penal purpose. We refer to the penal action, or action for a money penalty. The King, as already said, has power to pardon crimes and to stay criminal proceedings. It may be that these powers are nowadays exercised only for the most laudable purposes, but the use of them has been jealously dreaded by Parliaments. Therefore, Acts of Parliament have often enforced public duties, and in particular the duties of public officials, not by denouncing against those who should break them any such punishment as fine or imprisonment, but by giving an action of debt against such persons for the recovery of a fixed sum of money. Sometimes such action has been given to "the party grieved," to any person, that is, who is wronged by the breach of duty. In such cases it may be possible to regard the action as an action for a remedy, though the remedy may be out of all proportion to the wrong. To take one famous example, the Habeas Corpus Act of 1679 is studded with heavy money penalties. In substance these were meant to be punishments extremely sure and effective, which no king or minister could prevent, mitigate, or forgive, and just for this reason the mode appointed for exacting these large penalties was not in form a criminal proceeding; it was an action for debt by the party grieved. The sum that he would thus obtain might well be far more than what would compensate any wrong done to him; but compensation was not the object; the officer who kept men in prison unlawfully was to be punished severely, whether the King liked it or no. This is a famous example; but the same machinery has been used for many less notable purposes.