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530 Wan Yin, In re, 10 Sawy. 532 Ward v. Flood, 48 Cal. I

U. S. v. Mobile, 4 Woods, 536 v. Moore, 3 Cranch, 159

639 172

v. Osborne, 6 Sawy. 406

v. Railroad Co. 17 Wall. 322 244 v. Reese, 92 U. S. 214 195, 202, 205, 209, 212 v. Rhodes, 1 Abb. (U. S.) 28 v. Ross, 1 Gallis. 624

208

365

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675 194

447

239

475

639

v. Maryland, 12 Wall. 418 174, 261, 322, 662 Warner v. People, 2 Den. 272 Warren v. Paul, 22 Ind. 276 Washington University v. Rouse, 8 Wall. 439 Watkins, Ex parte, 3 Pet. 193 Watson v. Mercer, 8 Pet. 88 423, 494 v. Tarpley, 18 How. 517 Webber v. Virginia, 103 U. S. 344 323,

Webster v. Cooper, 14 How. 504
Weil v. Calhoun, 25 Fed. Rep. 865

638

665

637

673, 674 Wells, Ex parte, 18 How. 307 575,578 Wells, Fargo & Co. v. N. P. R'y Co. 23 Fed. Rep. 469 Welton v. Missouri, 91 U. S. 275

328

284, 313, 322, 323, 662, 665, 672 Weston v. Charleston, 2 Pet. 449 248, 249

West River Bridge Co. v. Dix, 6 How. 507 450, 497, 658 West Wisconsin Railway v. Bd. of Supervisors, 93 U. S. 595 483 Wheeling Br. Case, 18 How. 421

581 364

639

662

Utica v. Churchill, 33 N. Y. 161

480 251

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§1. THE systematic juridical writers among the Romans, whose works formed the basis of the compilations made by Justinian, separated the entire positive jurisprudence into two grand and opposed departments: the Public Law, and the Private Law (jus publicum, jus privatum). The Digest thus states the division: "Hujus studii [juris] duæ sunt positiones; publicum et privatum. Publicum jus est quod ad statum rei Romanæ spectat; privatum, quod ad singulorum utilitatem: sunt enim quædam publice utilia, quædam privatim."

Most of the modern jurists 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 Austin, Blackstone, in his Commentaries, had suppressed this separation of departments, and had treated most of those matters which are generally ranged under the head of Public Law, as parts of the law pertaining to persons. There can be no doubt that Blackstone's method has the merit of simplicity when the object is to present either an outline, or a complete detailed statement, of the positive rules which make up the entire internal or municipal jurisprudence of a particular nation. But when it is designed to present simply some portion of this whole, the division made by the Roman jurists, and followed by a majority of the moderns, is not only convenient and natural but necessary..

§ 2. Assuming, therefore, the department of Public Law as opposed to that of Private Law, we inouire what portion of

1 Dig. Lib. 1, tit. 1, § 2.

1

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 subordi nate." The Roman writers, in addition to the subject of polit ical 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.

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