INTRODUCTORY CHAPTER §1. THE systematic al writers among 3. whose works formed the basis of the compilations Justinian, separated the entire postive jurisprudence grand and opposed games: e Pic Law. ar: 1Private Law (jus publica, ju privatum). The Diges thus states the division:1-Hajus studii [juris] due sur positiones; publicum et privatum Publicum jus est quod at statum rei Romanæ spectat; privatum, quod ad singulorum utilitatem: sunt enim quadam publice utilia, quædam priva tim." Most of the modern juits of Europe make the same classification. Mr. John Austin, the profoundest writer on general jurisprudence which England has produced, rejects this division as useless and even perplexing Before Justin. Blackstone, in his Commentaries, had appressed this separa tion of departments, and had teated most of those matters which are generally ranged under the heat of Public Law, a parts of the law pertaining to persons. There can be no doubt that Blackstone's method has the merit of implicity when the object is to present either an outline, or a complete detailed statement, of the positie mies which make on the entire internal or municipal jurisprudence of a partieniar nation. But when it is designed to prent simply me partion of this whole, the division made by the Roman jurists, und followed by a majority of the mod only convement the entire body of a positive national jurisprudence does it embrace; in other words, what does a study of Public Law involve. Here we shall discover a marked diversity among theoretical writers. Austin says: Austin says: "Public Law, in its strict and definite signification, is confined to that portion of law which is concerned with political conditions; that is to say, with the powers, rights, duties, capacities, and incapacities, which are peculiar to political superiors, supreme and subordinate." The Roman writers, in addition to the subject of political conditions, included also that of criminal law. Savigny, certainly one of the ablest and most exhaustive of modern writers, describes Public Law as containing those rules which establish the various political conditions or status, those which define crimes and apportion their punishments, and those which regulate civil as well as criminal procedure.2 The ideas which lie at the basis of this classification are, that the state directly interferes, through its officials and in its organic capacity, with criminal and civil procedure, and that crimes affect the state as a body politic in a higher and more important sense than they do the private individuals whose rights may have been infringed upon by the offender, so that the punishment of the crime is intrinsically a public duty and a public act. § 3. The analysis of Falck is theoretically more accurate and practically more convenient than any of the preceding, and I shall adopt it as setting forth the proper bounds of Public Law, and the fundamental doctrines upon which the idea of the state and of a law for the state is based.3 §4. The members of a civil society are divided, in respect to the manner in which they are subjected to laws, into those who command and those who obey; and upon this division rests the distinction of Public Law and Private Law. In strictness, every individual person, in so far as he obeys, is, in 1 Lectures on Jurisprudence, Vol. 2, p. 435, Lect. XLIV. 2 Traité de Droit Romain, Vol. 1, chap. ii. § 9. 3 See Cours d'Introduction Générale a l'Étude du Droit, par N. Falck, (Juristiche Encyklopädie), chap. 1, §§ 26, 40, 41. The sections 4-12 in the text are substantially taken from Falck, with some omissions, and not a little amplification. respect to such act of obedience, and in respect to his duty to obey, a private person; and every commandment in a civil society primarily flows from the totality of its members, from the public, but is formally uttered by some representatives of that totality, be these representatives monarchs, hereditary or elected delegates, or electors who choose these delegates. The Public Law, therefore, embraces all those precepts which impose duties or confer rights upon the political superiors in the state, supreme or subordinate; upon those who organically represent the state as a body politic. Those rules which control the subject members of the state in their relations with the whole body, ought in strictness to be ranged in the Private Law; but as these relations are public in their nature, the rules themselves are also considered as a part of the Public Law. § 5. A conception of the Public Law as a distinct division of the entire body of jurisprudence will be made clearer by ascertaining what great departments are included in the Private Law. These departments may be thus enumerated : 1st. The Civil Law proper (droit civil, Civilrecht); consisting of (a) the Law as to Persons (jura personarum); (b) the Law as to Things (jura rerum); (c) the Law as to Obligations. 2d. Ecclesiastical Law (jus ecclesiasticum) in those countries where the Church is regarded as having a legal status, as something more than a voluntary association. This subdepartment does not exist in the United States, but does in England, and generally throughout Europe. The 3d. Supervisory Law (droit de la Police, Polizeirecht). 4th. The Law as to Crimes and Punishments. 5th. The Law as to Civil and Criminal Procedure. Private Law, therefore, includes those rules which define the rights, powers, capacities, and incapacities of various classes of persons, private, domestic, or professional; the rights of property in all its grades which may be had in or over things; and the rights which flow from contracts and all other sources of obligations between determinate individuals. It also embraces a description of those delicts or offences which the state punishes, and which are called crimes, together with the means and methods by which these crimes are punished, and those by which civil rights and duties are protected and enforced. Finally, under the denomination of Police are ranged all those governmental means proper to maintain good morals, public security, order, health, and the like; in general, all those means which augment the convenience and promote the tranquillity of social life. It should be carefully noticed that, although the state by virtue of its sovereignty is the source of all these rules, and, at the call of a person interested, interferes by certain classes of functionaries, such as magistrates, judges, administrative officers, in enforcing duties and protecting rights, and interferes directly in its own name and by its own authority in punishing criminals and exercising social supervision, yet all these rules primarily and essentially concern the members of the civil society in their private, individual, separate capacities; the state is not involved in its separate, organic unity as a body politic; although interested, it is rather so incidentally than directly. § 6. The Public Law, on the other hand, touches and affects the state in its organic unity. It regards that state as one body politic in its juridical relations, whether those relations be with its own subjects, or with other independent states. As these two classes of relations do and ever will exist, the Public Law may properly be divided into the two corresponding departments Political Law, or State Law properly so called (Staatsrecht), and International Law (jus inter gentes, Völkerrecht). The department of International Law may be dismissed with this mention as entirely foreign to the purposes of this work. § 7. As an aid in ascertaining with definiteness what classes of rules properly fall within the division of Political Law, it will be advantageous to advert briefly to the essential feature of the state under its necessary conditions. This essential feature, without which the state cannot exist, consists in the possession of sovereign power. The nature of sovereignty, both in respect to the external and the internal relations of the state, will be fully developed in a subsequent chapter; it is sufficient now to say that the sovereign power consists in the collective will and in the faculty of wielding and disposing those forces which obey that will. This sovereign power should be conceived of as indivisible in its nature, and as appertaining to the totality of members of the body politic — to the entire people: for, except under peculiar circumstances, there exists no reason for excluding from participation in the common will and action either one or many of those who directly take part in the political society. § 8. If this idea of the primary source of sovereignty can be accepted by the German theorist, by Americans it should certainly be regarded as axiomatic, and as lying at the very bottom of our conceptions of the state, and of the political structure we have erected in accordance with those conceptions. The expression, All power proceeds from the People, is trite enough, but the full significance of the expression is perhaps not sufficiently apprehended. According to the American theory, here reproduced by Falck, sovereignty does not reside in legislators, or executives, who are chosen, nor in the body of electors who immediately choose, but in the total aggregate of persons who are members of the state, and who by the present constituted order of things are primarily represented by the existing body of electors, and ultimately, by the legislative and executive officers. § 9. Although it is truly said that the sovereignty resides in the aggregate of members, yet in states of a certain extent it is not possible, and even in the smallest it would not be convenient, for this totality of the people to deliberate and act. These functions of deliberation and action, which constitute the exercise of the sovereign power, are therefore confided to many, or to one, of the members of the body politic, and in that case it is often said of these persons that they possess the sovereign power. Practically, there is nothing improper in this form of expression, so long as the constituted order of things in any particular state subsists; the totality having delegated their capacity to deliberate and act to representatives, have not generally reserved to themselves any |