mischief" (o). On the other hand, an act perfectly innocent, from a moral point of view, may render the doer amenable to punishment as a criminal. To take an extreme example-W. was convicted on an indictment for a common nuisance, for erecting an embankment which, although it was in some degree a hindrance to navigation, was advantageous in a greater degree to the users of the port (p). Here the motive, if not praiseworthy, was at least innocent. The fact that the motive of the defendant was positively pious and laudable has not prevented a conviction (g).

prohibita.

This forces upon our notice a division of crimes into Mala in se mala in se and mala quia prohibita; a distinction which and Mala quia is of little practical importance in our English system, and which must necessarily vary with the standard of good and bad (r). There will always be some crimes which naturally take their place in the one class or the other-for example, no one will hesitate to say that murder is malum in se, or that the secret importation of articles liable to custom is merely malum quia prohibitum; but between these offences there are many acts which it is difficult to assign to their proper class.

and by statute.

Some acts have been recognized as crimes in the Crimes at English Law from time immemorial, though their common law punishment and incidents may have been affected by legislation. Thus murder and rape are crimes at common law. In other cases, acts have been pronounced crimes by particular statutes, which have also provided for their punishment-e.g., offences under the Bankruptcy Laws.

(0) Attorney-General v. Sillem, 2 H. & C. 526.

(p) R. v. Ward, 5 L. J. (K.B.) 221.

(9) R. v. Sharpe, 26 L. J. (M.C.) 47.
(r) Austin, 590.

Division of the subject.

In treating of the Criminal Law, or the Pleas of the Crown (8), the subject naturally divides itself into two portions. The first, dealing with crimes generally, and the various individual crimes, their constituents, their differences, appropriate punishments, and other incidents, may be termed-The Law of Crimes. The second, dealing with the machinery by means of which these crimes are prevented, or, if committed, by means of which they meet with their punishment, may be termed-The Law of Criminal Procedure.

(s) So called because the king is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is, therefore, in all cases the proper prosecutor for every public offence. 4 Bl. 2.

CHAPTER II.

DIVISIONS OF CRIME.

in Criminal

Crime.-Offence. These terms are sometimes used Explanation of synonymously of the whole of illegal acts which entail leading terms punishment. Each of them, however, has sometimes a Law. narrower signification; and in this sense they are opposed to each other, and divide between them the whole field of acts which each in its wider sense covers. The latter use is that which confines the term "offence to acts which are not indictable, but which are punished on summary conviction; while "crime" is restricted to those which are the subjects of indictment.

Indictable Crimes.—All treasons, felonies, and misdemeanors, misprisions of treason and felony (t), whether existing at common law or created by statute, are the subjects of indictment. So also are all attempts to commit any of these acts (u); and even an intention to commit high treason is indictable. Further, if a statute prohibits a matter of public grievance, or commands a matter of public convenience (such as the repairing of highways or the like), all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute does not manifestly seem to exclude this mode of proceeding (v). But it is otherwise if the rights which are regulated are merely private. If the statute on which the indictment is

v. p. 8.

(u) v. p. 16.

(v) 2 Hawk. c. 25, s. 4.

framed is repealed, no proceedings can be taken provided at least the prisoner has not pleaded (x).

Misprision. In general this term signifies some neglect or contempt, especially when a person, without assenting thereto, knows of any treason or felony and conceals it (y). But it is also applied to every great misdemeanor which had no certain name given to it in the law; for example, the maladministration of public officers. The former kind is sometimes termed negative, the latter positive misprision.

The main classification of indictable crimes is threefold-Treason, Felony, Misdemeanor-though "treason" is strictly included in the term "felony."

Felony.-Misdemeanor. It will be remembered that in contrasting crimes and civil injuries, we found that there were no intrinsic qualities the possession of which assigned an act to either class. In distinguishing felony from misdemeanor we shall also find that the difference is only one founded on the consequences of each. But the latter classification is exhaustive, and not a cross-division, as in the case of crimes and civil injuries, inasmuch as the same act cannot be both a felony and a misdemeanor.

It is a popular idea, which to a certain extent the law has countenanced, that the distinction into felonies and misdemeanors is one founded on the degree of enormity of the crime. That this is not the case necessarily will be seen when we consider what offences belong to the one class and what to the other. No one will maintain that perjury, which is a misdemeanor, is of less gravity than simple larceny, which is a felony.

(x) R. v. Denton, 21 L. J. (M.C.) 207.
(y) v. pp. 54, 96.

As a rule, however, the more serious crimes are felonies.

What, then, is the origin and force of this distinction, Origin of a distinction attended with important consequences?" felony." To obtain an answer we must look back to the period of feudal law. The term "felony" is derived from two words (z), the one signifying a fief or feud, the other price or value. Thus the term was applied to those offences which resulted in the tenant's forfeiture of his land to the lord of the fee; though primarily it signified the penal consequences, i.e., the forfeiture, of these offences. By another slight deflexion the term was extended to offences which involved forfeiture of goods. Blackstone thus defines a felony to be "an offence which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital or other punishment may be superadded according to the degree of guilt" (a). Capital punishment, associated in the popular mind with felony, was an usual, though not a necessary, incident. Petit-larceny was a felony, but not capitally punished; standing mute at a trial was punished with death, though not a felony. Though the ground of distinction into felony and misdemeanor was the consequence of the crime, of course originally there must have been some reason for attaching the graver consequences to one act and not to another. This was furnished by a consideration of the gravity and commonness of the offence, a consideration not attended to in later periods (b).

It may be noticed that where a statute declares that an offender against its provisions shall be deemed to have feloniously committed the act, the offence is thereby made a felony (c).

Fee-lon. For some conjectural derivations, v. 4 St. Bl. 7.

(a) 4 Bl. 95.

(b) Fitz. St. 57.

(c) R. v. Johnson, 3 M. & Sel. 556.