Beyond the tort/crime distinction

Boston University Law Review

Volumn 76, Issue 1-2, 1996, Pages 103-111

  Friedman, David ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0043232434     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (42)

1. David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. REV. 59 (1996).
2. 4 WILLIAM BLACKSTONE, COMMENTARIES *316.
3. Id. at *312-13 ("As this method of prosecution is still in force, I cannot omit to mention it: but . . . it is very little in use . . . .").
4. J.M. BEATTIE, CRIME AND THE COURTS IN ENGLAND 1660-1800, at 35-36 (1986) (discussing the crucial role of private prosecution).
5. For a more detailed description of these institutions, see David D. Friedman, Making Sense of English Law Enforcement in the 18th Century, 2 U. CHI. ROUNDTABLE 475 (1995).
6. This assumes that the public action-the indictment - was publicly prosecuted in the middle ages. An alternative possibility is that both the nominally public action (indictment) and the nominally private (appeal) were, in practice, privately prosecuted in the middle ages, just as the indictment was in the eighteenth century.
7. Douglas Hay, Prosecution and Power: Malicious Prosecution in the English Courts 1750-1850 in POLICING AND PROSECUTION IN BRITAIN 1750-1850, at 343, 345 (Douglas Hay & Francis Snyder eds., 1989) ("[M]any commentators have acknowledged frankly enough that the satisfaction of a desire for revenge is a legitimate, indeed important, aspect of many lawful criminal prosecutions."); Seipp, supra note 1, at 63 (discussing medieval victims' feelings of vengeance and their belief that "vengeance was a virtue and sometimes a duty").
8. Friedman, supra note 5, at 484-88.
9. A familiar modern example is the case of a department store with an announced policy of prosecuting shoplifters.
10. See generally P.J.R. King, Prosecution Associations and Their Impact in Eighteenth-Century Essex, in POLICING AND PROSECUTION IN BRITAIN: 1750-1850, supra note 7; David Philips, Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England 1760-1860, in POLICING AND PROSECUTION IN BRITAIN 1750-1850, supra note 7; Friedman, supra note 5.
11. See generally P.J.R. King, Prosecution Associations and Their Impact in Eighteenth-Century Essex, in POLICING AND PROSECUTION IN BRITAIN: 1750-1850, supra note 7; David Philips, Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England 1760-1860, in POLICING AND PROSECUTION IN BRITAIN 1750-1850, supra note 7; Friedman, supra note 5.
12. See generally P.J.R. King, Prosecution Associations and Their Impact in Eighteenth-Century Essex, in POLICING AND PROSECUTION IN BRITAIN: 1750-1850, supra note 7; David Philips, Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England 1760-1860, in POLICING AND PROSECUTION IN BRITAIN 1750-1850, supra note 7; Friedman, supra note 5.
13. Philips, supra note 10, at 132-35 (describing the structure and function of prosecution associations).
14. Id. at 139 (noting that the advertisements were frequently coupled with warnings that the association would prosecute any offender).
15. Id. at 120 (citing estimates of up to 4000 associations, but accepting 1000 as "a good working estimate").
16. Commitment strategies based on emotions, such as vengeance, are discussed in DAVID D. FRIEDMAN, PRICE THEORY: AN INTERMEDIATE TEXT 288-90 (1990). See generally ROBERT H. FRANK, PASSIONS WITHIN REASON: THE STRATEGIC ROLE OF THE EMOTIONS (1988).
17. Commitment strategies based on emotions, such as vengeance, are discussed in DAVID D. FRIEDMAN, PRICE THEORY: AN INTERMEDIATE TEXT 288-90 (1990). See generally ROBERT H. FRANK, PASSIONS WITHIN REASON: THE STRATEGIC ROLE OF THE EMOTIONS (1988).
18. Seipp, supra note 1, at 70.
19. Friedman, supra note 5, at 486-88.
20. 2 LEON RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750, at 138 n.2 (1956) ("The compounding of penal actions, originally allowed, was made illegal by 18 Eliz. c. 5, made perpetual by 27 Eliz. c. 10."); see also 4 BLACKSTONE, supra note 2, at *133-34, *136 (categorizing compounding as a private wrong); Seipp, supra note 1, at 79 n.130.
21. 2 LEON RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750, at 138 n.2 (1956) ("The compounding of penal actions, originally allowed, was made illegal by 18 Eliz. c. 5, made perpetual by 27 Eliz. c. 10."); see also 4 BLACKSTONE, supra note 2, at *133-34, *136 (categorizing compounding as a private wrong); Seipp, supra note 1, at 79 n.130.
22. 2 LEON RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750, at 138 n.2 (1956) ("The compounding of penal actions, originally allowed, was made illegal by 18 Eliz. c. 5, made perpetual by 27 Eliz. c. 10."); see also 4 BLACKSTONE, supra note 2, at *133-34, *136 (categorizing compounding as a private wrong); Seipp, supra note 1, at 79 n.130.
23. E.g., Seipp, supra note 1, at 79.
24. Id. at 83-84 ("One interpretation of the choice between crime and tort is that it created one law for the rich and another for the poor. . . . but th[is] simple equation . . . fails to account for the real differences between victims seeking vengeance and victims seeking compensation.").
25. For an analysis of a similar system in Iceland, see David Friedman, Private Creation and Enforcement of Law: A Historical Case, 8 J. LEGAL STUD. 399 (1979).
26. For examples of revenue from law enforcement under the Angevins, see W.L. WARREN, KING JOHN 176-77 (1978).
27. See Douglas Hay, Property, Authority and the Criminal Law, in DOUGLAS HAY ET AL., ALBION'S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND 45-49 (1975) ("[T]he common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation. . . . [T]he power of gentlemen and peers to punish or forgive . . . maintain[ed] the fabric of obedience, gratitude and deference."); see also Friedman, supra note 5, at 497-98. To the extent that out-of-court settlements between defendants and prosecutors were practical even if illegal, some of the gains from prosecution in the eighteenth century would have gone to the prosecutor, usually the victim.
28. See Douglas Hay, Property, Authority and the Criminal Law, in DOUGLAS HAY ET AL., ALBION'S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND 45-49 (1975) ("[T]he common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation. . . . [T]he power of gentlemen and peers to punish or forgive . . . maintain[ed] the fabric of obedience, gratitude and deference."); see also Friedman, supra note 5, at 497-98. To the extent that out-of-court settlements between defendants and prosecutors were practical even if illegal, some of the gains from prosecution in the eighteenth century would have gone to the prosecutor, usually the victim.
29. Douglas Hay & Francis Snyder, Using the Criminal Law, 1750-1850: Policing, Private Prosecution, and the State, in POLICING AND PROSECUTION IN BRITAIN 1750-1850, supra note 7, at 3, 4 ("In the mid eighteenth century a 'gendarmerie' was an unthinkable incursion on English liberties.").
30. Id. at 6-7, 10.
31. This is not Professor Seipp's conclusion; his focus is on the historical development of concepts, not the logic or propriety of different ways of enforcing law.
32. There are other alternatives; in eighteenth century England the private prosecutor was not necessarily the victim.
33. This is an oversimplification, but is adequate for the purposes of this Comment. For a more detailed analysis of optimal deterrence, see David D. Friedman, Reflections on Optimal Punishment or Should the Rich Pay Higher Fines?, 3 RES L. & ECON. 185, 190-98 (1981); David D. Friedman, Should the Characteristics of Victims and Criminals Count? Payne v. Tennessee and Two Views of Efficient Punishment, 33 B.C. L. REV. 731, 732-43 (1993).
34. This is an oversimplification, but is adequate for the purposes of this Comment. For a more detailed analysis of optimal deterrence, see David D. Friedman, Reflections on Optimal Punishment or Should the Rich Pay Higher Fines?, 3 RES L. & ECON. 185, 190-98 (1981); David D. Friedman, Should the Characteristics of Victims and Criminals Count? Payne v. Tennessee and Two Views of Efficient Punishment, 33 B.C. L. REV. 731, 732-43 (1993).
35. Seipp, supra note 1, at 61-78 (discussing appeal of felony, indictment of felony, writ of trespass, and indictment of trespass).
36. In practice, appeals of felony could result in transfers of wealth if the parties settled out of court. Out-of-court settlements between private prosecutors and their victims seem to have been common during some parts of the period and illegal during others; there may have been times when they were both.
37. The system was actually more complex than I have shown here. In the case of a writ of trespass, the transfer was both to the victim and to the crown; in the case of an indictment of trespass, it was usually to the crown alone, although occasionally to the victim as well. In addition, both appeal and indictment of felony resulted not only in punishment (execution of the convicted felon), but in a transfer of the convicted felon's property and land to the crown and the feudal lord. See Seipp, supra note 1, at 61-78.
38. I am ignoring here both risk aversion and the costs to me of my unsuccessful defense; including such issues would complicate the example without adding anything useful to the argument.
39. For an argument that punitive damages represent such a scaling rule, see WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 160-63 (1987). But see David Friedman, An Economic Explanation of Punitive Damages, 40 ALA. L. REV. 1125 (1989) for a discussion of the reasons why I find this argument unconvincing. In any case, punitive damages have only recently come to play a significant role in tort law, and so the puzzle would still apply to most of the history of the Anglo-American legal system.
40. For an argument that punitive damages represent such a scaling rule, see WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 160-63 (1987). But see David Friedman, An Economic Explanation of Punitive Damages, 40 ALA. L. REV. 1125 (1989) for a discussion of the reasons why I find this argument unconvincing. In any case, punitive damages have only recently come to play a significant role in tort law, and so the puzzle would still apply to most of the history of the Anglo-American legal system.
41. In modern tort law, we associate this problem with stories of victims who abandon their wheelchairs immediately after collecting large damage judgements for permanently crippling injuries.
42. Friedman, supra note 5, at 477.