undertaken to do; nor is it till the one or the other has failed in his self-imposed duty, that an obligation ex contractu arises.

There are two other classes of wrongs which create obligations, termed respectively by the Romans, obligationes quasi ex delicto, and obligationes quasi ex contractu. The former obligation, quasi ex delicto, occurs when the injurious act or omission is not a crimei.e., an act or omission for which the guilty can be punished criminally-but is one for which he may be compelled, at the suit of the injured, to give satisfaction or compensation; such acts or omissions are termed by the English law torts. The distinction between obligations ex contractu and obligations quasi ex contractu does not appear to be recognized by the English law; or perhaps it would be more correct to say, that these terms are not. By the Roman law, an obligation quasi ex contractu arose when any person, without convention with another, spontaneously, and presumably for the benefit of the other, assumed the direction of his affairs,-cum

quis negotia absentis gesserit.... quia non ex maleficio substantiam capiunt, quasi ex contractu (obligationes) nasci videntur. By the English law, such conduct creates what is termed an implied contract.2

1 Just. Inst. iii. 28, 1.

2 Quasi-delicts are incidents by which damage is done to the obligee, though without the negligence or intention of the obligor, and for which damage the obligor is bound to make satisfaction. They are not delicts, because intention or negligence is of the essence of a delict; it being useless to apply a sanction where the will is passive.

The distinction between quasi-contract and quasi-delict seems to be useless. In neither case is there either contract or delict. They are merely arranged under these heads, because there is an obligation (stricto sensu), as there would have been if there had been a contract or a delict. (Austin, p. 945.) In the English law, the above terms do not occur; there the obligation is said to arise out of a contract or promise which the law implies. But the fiction is the same. (Austin, p. 945.)

'A Crime or misdeameanor (delict) is an act committed or omitted, in violation of a public law either forbidding or commanding it," (i.e., in violation of a prohibitory law, such violation entailing punishment).

An act or omission is not a crime, or is not imputable to the party, unless the party knew, or with due attention might have known, that, under the circumstances of the fact, it was a crime. Every crime, therefore, supposes on the part of the criminal criminal knowledge or criminal negligence-vel scienter vel negligenter.2

An

'The difference between crimes and civil injuries, is not to be sought for in a supposed difference between their tendencies, but in the difference between the modes wherein they are respectively pursued, or wherein the sanction is applied in the two cases. offence which is pursued at the discretion of the injured party or his representative, is a civil injury. An offence which is pursued by the sovereign, or by the subordinates of the sovereign, or, as in England, in the name of the sovereign, is a crime.' 3

An act or omission is not a crime if it be purely involuntary; i.e., if the not doing the act done, or the doing the act omitted, did not depend in any wise on the wish or will of the party.

Generally, an act or omission is not a crime, or is more or less excusable, if it proceeded from an instant and well-grounded fear stronger than the fear naturally inspired by the law.

The distinction between private and public wrongs, or civil injuries and crimes, would seem to consist in 1 Steph. Com. vol. 4, p. 89, Note. 2 Austin, p. 1092. 3 Austin, p. 417.

this: Where the wrong is a civil injury, the sanction is enforced at the discretion of the party, or his representatives, whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign. And, accordingly, the same wrong may be private or public, as we take it with reference to one, or to another sanction. Considered as a ground of action on the part of the injured individual,-by the law of England,-an assault or battery is a civil injury. The same battery, considered as a ground for an indictment, is a crime, or public wrong.' The same may be said of libel.

1

'In all cases of wrongs which are breaches of absolute duties, the sanction is enforced at the discretion of the sovereign or state. It is only by the sovereign or state that the liability incurred by the wrong-doer can be remitted.' 'The pursuit of criminals resides in this country in the king; or, in a few instances, in the House of Commons; as when it impeaches an alleged offender before the House of Lords.' 2

"The Romans classed criminal law and the law of political conditions under the general term jus publicum: for, say they, "ad statum rei Romanæ, ad publice utilia spectat;" whereas the remaining matter of the corpus juris is placed under the head jus privatum: for, say they," ad singulorum utilitatem, ad privatum utilia spectat."'3

The only distinction, then, which exists between a civil injury and a crime, is that, in the case of the former, the wrong-doer, tortfeasor, may be pursued by the injured for personal satisfaction; in the case of the latter, the wrong-doer, criminal, can only be pursued by the 1 Austin, p. 518.

2 Ib. p. 518.

3 Just. Inst. 1. 1.

injured in the name of the Crown, in order that punishment may be inflicted upon him by the State.

Bentham divides offences into the four following kinds :-'1. Private Offences-Those which are injurious to such or such assignable individuals, other than the delinquent himself. 2. Reflective OffencesThose by which the delinquent injures nobody but himself; or, if he injures others, it is only in consequence of the injury done to himself. 3. Semi-public Offences -Those which affect a portion of the community, a district, a particular corporation, a religious sect, a commercial company, or any association of individuals united by some common interest, but forming a circle inferior in extent to that of the community. All such offences consist of a danger which threatens, but which as yet attacks no particular individual. 4. Public Offences-Those which produce some common danger to all the members of the State, or to an indefinite number of non-assignable individuals, although it does not appear that any one in particular is more likely to suffer than any other.'1

6 Since,' he says, 'the happiness of an individual flows from four sources, the offences which may attack it can be arranged under four divisions:-1. Offences against the person. 2. Offences against property. 3. Offences against reputation. 4. Offences against the condition; that is, against domestic or civil relations, such as the relation of father and child, husband and wife, master and servant, citizen and magistrate, &c.

'Offences which are injurious in more respects than one may be designated by compound terms; as, offences 1 1 Principles of the Penal Code, ch. i.

F

against the person and property, offences against the person and reputation, &c.'1

The distinction attempted to be drawn by some of our legal writers between malum (quia) prohibitum and malum in se, and that of the Roman lawyers between crimes juris gentium and crimes jure civili, appears to be unsupported by reason, and is certainly repugnant to the theories of sovereignty and utility, as already stated, and is practically useless.

Rights. Whenever a legal duty is to be performed towards or in respect of some determinate person, that person is invested with a right.

All rights are rights to acts or forbearances, either on the part of persons generally, or of particular persons. When we talk of our right to a thing, we mean, if the thing is in our possession, a right to the forbearance of all persons from taking it, or disturbing us in its enjoyment. If it is in the possession of some other person, we mean a right to an act or forbearance of that person-the act of delivering it to us, or the forbearance on his part from detaining it. It is by commanding these acts and forbearances that the law confers the right; and the right, therefore, is essentially and directly a right to these acts or forbearances, and only indirectly to the thing itself.

Every right resides in a person or persons, determinate or certain; meaning by a person determinate, a person determined specifically; and it avails against a person or persons-or answers to a relative duty incumbent on a person or persons-other than the person in whom it resides.

Every legal right is the creature of a positive law; 1 Penal Code, ch. ii.