125 



LAW. 



LAW 



126 



of Gaius, on which the Institutes of Justinian are mainly founded. 

 Hence it appears that the Roman lawyers included under jus publicum 

 not only the powers of the sovereign, and the rights and duties of per- 

 sons in public conditions, but also criminal law. Their definition of 

 jus publicum, however, does not properly include criminal law, and the 

 term, as used by later writers, haa not in general this extension. Pub- 

 lieu* is the adjective of populus, and signifies that which belonged to 

 the sovereign body of the citizens ; hence jus publicum signified that 

 law which concerned the government of Rome, and its magistrates and 

 other functionaries. Priratus seems to have meant originally that 

 which was separated or let apart from any common stock; hence 

 it came to signify that which did not concern directly the public or 

 state. 



The formal division of law into public and private is not to be found 

 in the institutional treatises of English law. It is, however, used by 

 Lord Bacon, in his treatise ' De Augmentis,' lib. viii., aph. 80 ; where 

 he advises that, after the model of the Roman jurists, jut publicum 

 should be excluded from institutional treatises. 



Sir W. Blackstone, in the first book of his ' Commentaries,' treats of 

 the rights and duties of persons, in their public and private relations 

 to each other (pp. 146, 422). The former branch of this division, 

 which occupies chapters 2 to 13, comprehends jus publicum, in its 

 limited sense, which nearly corresponds to the English term ' consti- 

 tutional law.' The droit politique or conititutionntl of Mr. Bentham, 

 in his 'Traitcs de Legislation' (torn, i., p. 147, 325-6, ed. 1802), is 

 also equivalent to jut publicum, in its strict sense. (Austin's Outline, 

 p. Ixvii.) 



Positive law is further divided, with reference to its subject, into the 

 f persons and the law of thinc/s. The Roman jurists, who were the 

 authors of this division, arranged these two classes under the head of 

 jut priratum, together with a third, viz., the lam of actions, or of 

 judicial procedure. A full explanation of this important division is 

 not consistent with the purpose of the present article : a brief and 

 lucid statement will be found iu Mr. Austin's ' Outline' already cited, 

 pp. xvi-xviii. The most important conditions or status, composing 

 the law of persons, are public or political, and private. The former 

 species includes all persons sharing the sovereign power and all public 

 functionaries ; the latter includes the conditions of husband and wife, 

 parent and child, master and servant, guardian and ward, &c. The 

 term jus publicum, when used in a precise sense, is equivalent to the 

 former of these species. Sir W. Blackstone, misled by the ambiguity 

 of the Latin word jus, has rendered jus personarum and jut rerum by 

 ' ri/ktt of persons,' and ' riyhtt of things.' The origin of this portentous 

 blunder is explained in Mr. Austin's ' Outline,' p. Ixiii. 



Positive law is also divided, with reference to the legal consequences 

 of a breach of legal duty, into civil and criminal. 



:< that department of law in which every breach of a duty 

 may bo 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- 

 f 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 tarn action is partly a 

 civil and partly a penal, but is in no respect a criminal action. By the 

 in England, is commonly understood the Roman law 

 generally, or that portion of it which is received in the ecclesias- 

 tical court*. 



Law a sometimes opposed to equity. E'imtij, 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 

 > opposed to equity, concerning which opposition see EQUITY. 

 Common law is so denominated as being founded on usages common to 

 the whole nation, ami nut peculiar to a certain district. (1 Blackst. 

 ' (''>rnm.' p. 87-8.) In like manner, "the Book of Common Prayer" 

 is so designated in order to distinguish it from forms of prayer intended 

 f., r /;) '.,//, devotion. It may be remarked, that, in the language 

 i if the Roman law, jut civile is opposed to jus prcetorium (the law made 

 by the judicial legislation of the praters), in the same manner 

 that, in the language of the English law, common lam is opposed to 

 equity. 



A law is likewise opposed to a pririlegium. Pririlrgium is an 



am.'ii'nt term of the Roman law, inasmuch as it occurred in the Twelve 



. (Cicero, ' Leg.' iii. 19.) It signified, according to its etymo- 



a measure directed at a single person (hominem privum), an dis- 



i*hed 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 



lingulas perionas, sed generaliter constituuntur." (D. i. 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 privileyium, signifies a special command of 

 the sovereign, not founded on an existing general command or law. 

 Such a privileyium 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 

 privilegium 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). (1 ' 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, ' Polit.,' iv., 4, 5.) In 

 the latter class of states, the acts of the government were a succeession 

 of privilegia (generally styled by the Greeks i^^iV/iara, although 

 <fa<t>la/juiTa were often laics, 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. 



Concerning the difference between the making of laws and the 

 execution of them, or (as they are termed) the legislative and executive 

 functions of government, see LEGISLATION. 



Law is sometimes opposed to fact ; that is to say, the rule of law 

 is distinguished from the facts or events to which it is applied in 

 practice. In this sense it is said that every one is presumed to know 

 the law ; whereas ignorance of the fact is an excuse. (For the 

 doctrines of the Roman Law on this subject, eee ' Dig.' 22. 6.) The 

 distinction between law and fact is important in our system of juris- 

 prudence, with reference to trial by jury ; for, according to the theory 

 of our law, the judge decides concerning the law, and the jury con- 

 cerning the fact. This maxim is, however; little more than theory ; 

 for in practice the jury, by its power of returning a general verdict, is 

 judge both of the law and the fact. [JURY. J (See Best on ' Evidence,' 

 3rd edit. p. 103.) 



Laws, considered singly, have been divided into numerous species, 

 as declaratory, remedial, penal, repealing, &c., laws. Concerning 

 these see Austin's ' Province of Jurisprudence,' p. 22, and Dwarris on 

 ' Statutes,' ch. 10. 



4. Oriyin and End of Positive Law. It has been above stated that all 

 positive laws are commands, direct or indirect, of the person or persons 

 exercising supreme political power in an independent society. Con- 

 sequently the notion that positive laws are derived from a compact 

 between sovereign and subjects (styled the original or social contract) 

 is a delusion. 



The proper end of positive law is the promotion of the temporal 

 happiness, or well being, of the community over which the law extends. 

 Thus Aristotle, in his ' Politics,' says that " political society was formed 

 in order to enable men to live, and it continues to exist in order that 

 they may live happily." (1. 2.) " Finis et scopus (says Lord Bacon) 

 quern leges intueri atque ad quern jussiones et sanction es suas dirigero 

 debent, non alius est quam ut civet feliciter deyant." (' De Augrn.,' lib. 

 viii., aph. 5.) The meaning of Aristotle and Bacon, in the passages 

 just cited, was no other than that expressed by Mr. Bentham in his 

 well-known formula, that the end of political government is "the 

 greatest happiness of the greatest number." 



We have stated that the proper end of positive law is the promotion 

 of the temporal happiness of the community. The end of the political 

 union is the promotion of the happiness of its members in the present 

 state of existence ; that is to say, in the existence which is compre- 

 hended between birth and death. The promotion of men's happiness 

 in the existence which commences after death is the end of the 

 religious or ecclesiastical union. (See Warburton's ' Divine Legation,' 

 b. 1, s. 2, vol. i, p. 215, 8vo ed.) 



From the benevolence of the Deity, it is presumed that those rules 

 which tend the most to produce the happiness of his creatures are most 

 agreeable to him ; and consequently the terra " Divine law " (also 

 called natural law) is used to signify those maxims to which human 

 laws ought to conform. In the vast countries where the Mohammedan- 

 and Brahminical religions prevail, a great proportion of the positive law 

 is supposed to be derived from the direct revelation of a supernatural 

 being ; and therefore the Divine law and the positive laws of the state 

 in great measure coincide. The Christian dispensation, however, does 

 not (like the Jewish) contain any system of rules out of which a body 

 of positive law can be formed, or which can be enforced by a civil 

 government. Consequently, in Christian countries a very small part 

 of positive law is founded upon precepts derived from immediate reve- 

 lation : the far greater part of positive law is or ought to be fashioned 



