Gambar halaman
PDF
ePub
[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

CRIMINAL LAW.

INTRODUCTION.

§ 1. Place of Criminal Law in Jurisprudence.

rights.

THE immediate object of law in the abstract is the Division of
creation and protection of rights (a), which rights
subsist either-

(1) Between subject and subject; or,
(2) Between state and subject; or,
3) Between state and state.

Division of

Hence arises a threefold division of law (b) into—
(1) Private law, dealing with the rights subsist- law.
ing between subject and subject;

(2) Public law, dealing with the rights subsisting
between state and subject; and

(3) International law, dealing with the rights
subsisting between state and state.

Private law is either (c)

(1) Substantive, defining the rights of indi-
viduals; or,

(2) Adjective, indicating the procedure by which
they are to be enforced.

[blocks in formation]

Private law.

H.

B

Moreover, substantive private law deals with rights
which may be either-
(a) Normal, or

(b) Abnormal,

according as the persons with whom they are con-
nected are of the ordinary type or deviate from it,
as in the cases of lunacy, infancy, &c.

Whether normal or abnormal, rights are also—
(A) Antecedent, as existing irrespectively of any
wrong having been committed; or

(B) Remedial, as springing up when an antecedent
right has been violated.

Antecedent rights are either in rem, i. e., available against the whole world, or in personam, i. e., available only against a definite individual.

Remedial rights are almost all available only in personam. This division of private law may be more shortly expressed as follows:

Public law.

Private law
is either

Substantive, defining rights

normal

which are

antecedent {

in rem.

in personam.

abnormal remedial-in personam.

Adjective, providing for the protection of rights.

It would be possible to apply the above divisions of private to public law also; but as such a classification would entail considerable inconvenience in our view of the criminal law, we prefer to adopt the arrangement of public law (d) under the heads ofI. Constitutional Law;

II. Administrative Law;
III. Criminal Law

[ocr errors]

IV. Criminal Procedure; and

V. The Law and Procedure relating to the state in its quasi-private personality.

(d) Holland's Jurisprudence, pp. 245–247.

Hence, criminal law and criminal procedure, the subjects of our present inquiry, are two subdivisions of public law (e).

§ 2. Nature of a Crime.

a crime.

In accordance with the preceding division of law, Definition of a crime may be defined as the violation of a right subsisting between the state and a subject (ƒ), and affecting the whole community, considered as a community.

between

A tort, on the other hand, is a violation of the Distinction private or civil rights (other than those arising under crimes and a contract) subsisting between individuals, considered as individuals.

This distinction between crimes and torts may at first sight appear a fine one; for the same set of circumstances will from one point of view constitute a tort, while from another point of view they amount to a crime.

In the case, for instance, of an assault, the right violated is that which every man has, that his bodily safety shall be respected, and for the wrong done to this right the injured party is entitled to claim. damages; from this point of view, therefore, this violation is a tort. But this is not all. The act of

(e) For a further discussion of the nature of law, and rights, the student is referred to Prof. Holland's Jurisprudence, and Austin's writings on that subject. As in the present treatise we are dealing merely with criminal law and procedure, it is beyond its scope to further discuss the three other subdivisions of public law.

(f) In 4 Steph. Comm. p. 4, a crime is defined as the violation of a right, when considered in reference to the evil tendency of such violation, as regards the community at large.

torts.

« SebelumnyaLanjutkan »