Odger's English Common Law

42 PUBLIC WRONGS.
with a simple code of criminal law, which would be wholly
inadequate to meet the necessities of a more complicated
civilisation. As commerce spreads and the luxuries of life
increase, the opportunities for fraud and violence multiply,
and new kinds of crime are constantly invented, against
which the people must be protected by fresh legislation. 1
Hence it is very difficult to reduce crimes to any scientific
classification, or even to draw a strict line of demarcation
between a crime and a tort.
A crime then is the breach of a duty imposed by law on every
citizen for the benefit of the community at large ; a tort is the
breach of a particular duty owed to an individual. The distinc-
tion, nevertheless, is of a somewhat accidental character. It
is not based on any clear logical principle, but rather finds its
explanation in history. At different periods, different acts
have been regarded either as tortious or as criminal, according
to the prevailing sentiment of the day. Many acts are now
criminal in England which were formerly matters of purely
civil jurisdiction. In Eoman law theft was a crime as well
as a tort ; but we consider it solely a crime. The Eomans
regarded adultery as a crime; in English law it is a civil
injury, giving a right to damages against the adulterer.
Some writers on jurisprudence tell us that a crime is an
injury which directly affects the State, while a tort directly
affects the individual. But most crimes directly concern an
individual ; take, for instance, larceny and murder. Other
writers say that the substantial distinction lies rather in the
remedy pursued : when the wrongful act is a crime, the State
prosecutes and punishes the offender : when it is a tort, the
remedy is left in the hands of the individual aggrieved, who
may sue for damages or not, as he pleases. But this distinc-
tion also is far from satisfactory. We often hear of "private
prosecutions ; " and indeed it is seldom that the State
initiates any criminal proceeding of its own accord : it
generally waits for some individual to set it in motion. The
i " Quaeritur, ut cresount tot magna volumina legis ?
In promptu causa est, crescit in orbe dolus."
Per cur. in Twyne's Case (1601), 3 Eep. at p. 82 a ; 1 Sm. L. C, 12th ed., at p. i.