Civil and Criminal Divide

To speak of the "destabilization" of anything is to imply that there was a time of stability. In the case of the civil/criminal distinction, this would be a somewhat misleading implication. The distinction between criminal and civil wrongs, and the nature of the processes used to address them, have never been static, but rather have continuously changed over time, often dramatically. For example, in Roman law, often cited by contemporary legal scholars as evidence of the ancient pedigree of the civil/criminal divide, robbery and theft were classified as (private) torts rather than as the (public) crimes we now consider them. And in early English common law, the civil/criminal distinction was neither a distinction between two intrinsically different wrongs, nor a bifurcation of procedural regimes, but rather was reflected in a choice among writs, of which there were at least four, that could be pursued by a victim of a wrong or by officers of the Crown. It was not until the mid-eighteenth century that any systematic defense of a civil/criminal distinction in English law was offered—by William Blackstone in his enormously influential Commentaries on the Laws of England, initially published as a series of lectures between 1765 and 1769, and now known simply as Blackstone's Commentaries. Blackstone divided English law generally into "private wrongs" and "public wrongs" and in turn divided legal sanctions into compensation (for private wrongs) and punishment (for public wrongs). Blackstone was the first to bifurcate the law into two such clearly distinct systems.

Despite this checkered history, the civil/criminal distinction was established enough by the time of the founding of the American republic to be written into the federal constitution—not once, but many times. The framers of theU.S. Constitution clearly did not find the distinction particularly ambiguous, because they made reference to it in numerous places throughout the Bill of Rights without feeling any need to explain what constituted, for example, "criminal cases" for purposes of the Sixth Amendment, "self-incrimination" for purposes of the Fifth Amendment, or "punishments" for the purposes of the Eighth Amendment. Early American judicial cases, too, assumed a sharp and knowable divide between the realms of civil and criminal law. For example, many American common law courts rejected early claims for "punitive" damages in civil tort cases, relying upon a clear distinction between the intrinsically punitive function of the criminal law and the intrinsically compensatory purpose of civil law. Asked one such court, "How could the idea of punishment be deliberately and designedly installed as a doctrine of civil remedies? Is not punishment out of place, irregular, anomalous, exceptional, unjust, unscientific, not to say absurd and ridiculous, when classed among civil remedies?" (Fay v. Parker, 53 N.S. 342, 382 (1873)). While punitive damages eventually were accepted as part of the American tort system, courts throughout the nineteenth and early twentieth century continued to speak with assurance about the clear distinction between "criminal prosecutions" and "the enforcement of remedial sanctions," as the U.S. Supreme Court did as late as 1938. (Helvering v. Mitchell, 303 U.S. 391, 402 (1938)).