Odger's English Common Law

CRIME AND TORT. 43
distinction surely cannot depend upon differences of pro-
cedure which are accidental rather than essential.
A third test has frequently been applied in modern times
—a somewhat topsy-turvy test ; for it makes the nature of
the act depend upon the ultimate result of the proceedings
which may or may not be subsequently taken against the
wrong-doer. If the proceedings end in the infliction of fine
or imprisonment upon him, then he has committed a crime ;
if, however, they end in a judgment against him, awarding
the plaintiff a certain sum of money as damages, then his act
was a tort and not a crime. This is a practical distinction,
no doubt, and one which has been frequently applied in our
Law Courts. 1
But is not this putting the cart before the
horse ? It seems somewhat illogical to make the quality of
the wrongful act depend upon its consequences, not to the
person injured, but to the wrong-doer. This test, in short,
does not go to the root of the matter, or disclose any funda-
mental basis for the distinction.
"We venture, therefore, to submit the following definitions
as a clearer statement of the essential difference between a
crime and a tort :
—
A crime is a wrongful act of such ai kind that the State
deems it necessary, in the interests of the public, to repress
it ; for its repetition would be harmful to the community as
a whole.
A tort is a wrongful act which gives the person injured a
right to be compensated by the wrong-doer for the injury
done him.
Bub it must be confessed that this distinction between a tort and a crime
was unknown to our Saxon and Norman ancestors—or at all events was
wholly ignored by them. It has been stated that all nations in the
earlier stages of their civilisation recognise only torts, for they have not
yet risen to the conception of a crime. It would be more correct, however,
to say that early civilisations possessed a body of law which dealt with a
group of miscellaneous offences, some of which resemble our modern
crime, while others are more analogous to the modern tort.
Still, even in Anglo-Saxon society there was the " wer " as well as the
1 See, for instance, the judgments in Cattell v. Ireson (1868), E. B. & E. 91.
and in Seaman v. BurUy, [1896J 2 Q. B. 3U.