Page:The Green Bag (1889–1914), Volume 17.pdf/17

 THE GREEN BAG of social revolution, it is crying out for means of conforming to it. That may be true, the critic perhaps will say; but as he thinks of the matter the whole of the criminal law appears to him to be arbitrary and artificial. He wants to know why breach of trust in certain cases is a criminal offence while breach of con tract is not; is there any consistent distinc tion running through the criminal law, which saves it from the charge of being haphazard? My friend does not object to a distinction between compensation and punishment; he knows that such a distinction has been well marked from the time when, according to a recent version of scripture, Adam and Eve ''lost their property." The objection is only that the distinction is not carried out upon sound theory. The answer must be given in broad lines. Our friend must be informed that the crim inal law has two tap-roots, the first public defence, the second possession. In regard to the first, it will only be necessary to re mind him that in early feudal times the chief danger to the king's government was the turbulence of the barons; their jealousies and enmities, accompanied as they inevi tably were, with depredations and slaughter, often leading to outbreak and war. Such things must be put down, or the king him self would be unseated; they must be put down and the offenders punished — to take their lands and goods would be part of the punishment indeed, but only part. It was of the same idea, extending with time, that all disorder, of whatever kind, was dan gerous to the State and must be similarly dealt with. In the earlier times — my friend is well informed on this point — little if any discrimination was made between small and great breaches of good order, except in regard to the weight of punish ment; but breaches of contract, among a people not engaged in commerce, were matters of small importance, not touching the king's welfare; and so redress in such cases was left to the injured parties in the

way of pecuniary compensation. And in process of time the smaller offences against order detached themselves from the greater ones, as not tending to affect the State, and they, like breaches of contract, became the subject of compensation only, forming our law of torts. There is surely nothing arbi trary in this, so far as the idea of the whole is concerned; though in regard to details there might sometimes be ground for dif ference of opinion. It is not necessary to consider changes of theory in regard to the purpose of punishment. The other tap-root, possession, involves some technical law; but the essential idea of it may readily be understood by laymen. Possession in primitive, and indeed in civi lized times, is a conception closely akin to ownership. We still speak, in ordinary lan guage, of a man's possessions in the sense of his property, that idea was very greatly intensified in early times. My friend will now anticipate the point — a man could not steal what, though only for the time being, was his own.1 Hence the distinction of to-day between larceny and "conversion"; the man in lawful possession of another's goods, who wrongfully converts them to his own use, must make compensation but can not be punished as for crime, as he might have been had he not had lawful possession. Hence too the distinction in former times between larceny and embezzlement, a dis tinction now fortunately removed by statute — fortunately, because it is very important that embezzlers should be dealt with with the strong hand. The criminal law is no doubt imperfect, but it began and still is proceeding, as far as it goes, on right lines, with a tendency more and more to plant itself on sound theory. 1 The modern way of putting it is, that larceny begins in trespass, that is, in wrongful taking pos session; which is the same idea. A man could and can steal his own goods, if only they are in the lawful possession of another — such is the potency of the old idea of possession. See Commonwealth v. Rourke. 10 Cush. 397, 390-