Odger's English Common Law

CRIMES. 41
actually sustain injury or inconvenience. No private individual,
for instance, has any right of action for damages because
another has unsuccessfully attempted to obtain money from
him by false pretences, or has forged his name to a cheque so
clumsily 'that no one is deceived by it. These and many
other wrongful acts, then, are crimes but not torts.
Again, it is not necessary that every act which the State
thus prohibits should be in itself morally wrong. It often
may be necessary, in the interest of the community at large,
that some act innocent in itself should be forbidden, and that
those who disregard the prohibition should be punished. An
act or omission, which in ordinary circumstances can do no
harm, may become harmful if done at a particular time, or in
a particular place, or in other special circumstances.
Thus the manufacture of gunpowder is in itself an innocent and
indeed a useful act, and when manufactured it must be stored somewhere.
But it is a danger to the public, and therefore indictable as a nuisance, for
any one to manufacture or to keep in large quantities gunpowder or any
other explosive or inflammable material in a town or closely inhabited
place. 1 Again it was always regarded as a crime by the common law
of England for any one knowingly to send to market for sale as human food
meat which was unfit for human consumption. 2 But ignorance is easy to
plead and difficult to disprove, and ignorance in such a matter is gravely
culpable whenever it endangers human life and health. Hence by a modern
statute it has been made a misdemeanour for any one, even unknowingly, to
send such meat to market to be sold as human food. 3
But it may be asked, As not every wrongful act is a crime,
and not every criminal act is in itself wrongful, on what
principle does the State determine what acts it will forbid
and punish ? "What test does the State apply to determine
whether it will place a particular act or omission in the
category of crimes, or only in the less obnoxious list of torts ?
The answer is that the only test which can be applied is that
which is or should be the touchstone of every law, namely,
the greatest happiness of the greatest number. The State
must repress that which the needs of the nation at any given
moment require to be repressed. Our ancestors were content
1 R. v. Lister (1857), Dearsl. & B. 209.
2 Shillito v. Thompson (1875), 1 Q. B. D. 12, 14.
3 See 35 & 36 Vict. o. 74, s. 2.