Positive law is also divided, with reference 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 con ferring on the person wronged a right from the enjoyment of which he is excluded by the defendant, or of obtaining from the defendant com pensation 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 representatives, 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 compensation for the viola tion of a right, which he claims from the defendant. The scope of a criminal prosecution is to inflict punishment 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 action. By the civil law, in England, is commonly understood the Roman law generally, or that portion of it which is received in the ecclesias tical 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 con ceptions of moral justice. In the language of the English law, common law is opposed to equity, concerning which opposition see EQUITY. Common law is so denominated as being founded on usages common to the whole nation, and not peculiar to a certain district. (I Blackat. ' 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 tlie Roman law, jus civile is opposed to jus prtetorzurn (the law made by the judicial legislation of the prietors), 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 pririlegium. Privilegium is an ancient term of the Roman law, inasmuch as it occurred in the Twelve Tables. (Cicero, Leg.' iii. 19.) It signified, according to its etymo
logy, a measure directed at a single person (Amine= privum), as dis tinguished from a law which applies to classes of persons ; for it is stated in a fragment of Ulpian preserved in the Digests, " jura non in eingulas personae, red generaliter constituuntur." (D. 1. 3. 8.) The latter part of the word privilegium is connected with lex ; but we have already stated that lex originally did not necessarily signify a rule. More properly, however, a privilegium signifies a special command of the sovereign, not founded on an existing general command or law. Such a privikgiuns may either be beneficial to the person or persons affected by it, as an exemption from all personal actions which the king of England 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 prisilegium is explained by Sir W. Blackstone as follows :—" Municipal (that is, positive) law is a rule; not a transient sudden order from a superior to or concerning a particular person, but something permanent, uniform, and universal. Therefore a particular act of the legislature 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 a law. But an act to declare the crime of which Titius is accused shall be deemed high treason ; this has permanency, uniformity, and universality, and therefore is properly a rule" (or law). (I Com.,' p. 44.) The distinction here adverted to is that meant by the Greek writers when they speak of governments administered according to law, and governments administered not according to law. (See particularly Aristotle, Pont.; iv., 4, 5.) In the latter class of states, the acts of the government were a succeession of privilegia (generally styled by the Greeks tfro(a,Etara, although tfrotapara were often laws, strictly so called). Montesquieu's dis tinction between monarchy and despotism is founded upon the same principle. (` Esprit des Lois,' ii. 1.) Government by privilegia is properly called arbitrary government, the government being admi nistered not according to rules, but according to the arbitrium of the sovereign one or many.