Positive law is also divided, with refer ence to the legal consequences of a breach of legal duty, into civil and criminal.
Civil law is that department of law in which every breach of a duty may be made the subject of a legal proceeding, for the purpose of conferring on the per son wronged a right from the enjoyment of which he is excluded by the defend ant, or of obtaining from the defendant compensation for a right violated by him.
Criminal law is that department of law in which every breach of duty may be made the subject of a legal proceeding instituted by the sovereign or his repre sentatives, for the purpose of inflicting punishment on the person charged with the breach of duty. The scope of a civil action is the redress of the plaintiff, by conferring on him the right, or compen sation for the violation of a right, which he claims from the defendant. The scope of a criminal action is to inflict punish ment on the defendant for the breach of a legal duty which is imputed to him. Penal law is not identical with criminal law; for an act or omission may be liable to legal punishment in consequence of an action instituted by a private person. The action in English law termed a qui tam action is partly a civil and partly a penal, but is in no respect a criminal ac tion. It has been already stated that the term jus civile originally signified the peculiar law of Rome. In modern times it has acquired, in many or most civilized countries, the limited sense which has just been explained. The term crimen was used by the Roman jurists as equiva lent to delictum publicum, that is, a delict which was the subject of a judicium pub ileum (Hugo, Ib. pp. 368, 959). (On the contents of the French Code civil see CODES, LES CINQ.) Civil and Criminal delicts or injuries are terms which, in strictness, are unknown to the English law. A criminal proceeding is, in the language of the English law, styled a plea of the crown, as being a penal action instituted by the crown. The court recently created by statute in London is however styled the Central Criminal Court. By the civil law, in England, is commonly understood the Roman law generally, or that portion of it which is received in the ecclesiastical courts.
Law is sometimes opposed to equity. Equity, in this sense, implies an arbitrary or discretionary power in the tribunal to decide, not according to prescribed rules of law, but according to its own concep tions of moral justice. In the language of the English law, common law is op posed to equity, concerning which op position see EQUITY. Common law is so denominated as being founded on usages common to the whole nation, and not pe culiar to a certain district. (1 Blackst. Comm., p. 67-8.) In like manner, "the Book of Common Prayer " is so designated in order to distinguish it from forms of prayer intended for private devotion. It
may be remarked, that, in the language of the Roman law, jets civile is opposed to jus prcetorium (the law made by the judicial legislation of the praetors), in the same manner that, in the language of the English law, common law is opposed to equity.
A law is likewise opposed to a privile gium. Privilegium is an ancient term of the Roman law, inasmuch as it occured in the Twelve Tables. cCicero, Leg., iii. 19.) It signified, according to its etymo logy, a measure directed at a single per son (hominem prima), as distinguished from a law which applies to classes of persons ; for as it is stated in a frag ment of Ulpian preserved in the Digests, " jura non in singulas personas, sed gene /sifter constituuntur." (Lib. i. tit. 3, fr. 8.) The latter part of the word privile gium is connected with lex; but we have already stated that lex originally did not necessarily signify a rule. More pro perly, however, a privilegium signifies a special command of the sovereign, not founded on an existing general command or law. Such a privilegium may either be beneficial to the person or persons af fected by it, as an exemption from all personal actions which the king of Eng land can (or could) grant by his writ of protection (Blackst. 3 Com., p. 289) ; or it may deprive him of some of his rights, or inflict some punishment upon him. The difference between a law and a privilegium is explained by Sir W. Blackstone as follows : "Municipal (i.e. positive) law is a rule ; not a transient sudden order from a superior to or con cerning a particular person, but some thing permanent, uniform, and universal. Therefore a particular act of the legis lature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law ; for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than thane a law. lint an act to declare the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and uni versality, and therefore is properly a rule" (or law). (1Com., p. 44.) The distinc tion here adverted to is that meant by the Greek writers when they speak of go vernments administered according to law, and governments administered not ac cording to law. (See particularly Aris totle, Polit., iv. 4, 5.) In the latter class of states, the acts of the government were a succession of privilegia (generally styled by the Greeks ilmobrawra, although slembleµars were often laws, strictly so called). Montesqnieu's distinction be tween monarchy and despotism is found ed upon the same principle (Esprit des Lois, ii. 1). Government by privilegia is properly called arbitrary government, the government being administered not according to rules, but according to the arbitrium of the sovereign one or many.