§ 52. Municipal law defined. Blackstone's confusion results from two things: first, an erroneous definition of law; and second, a labored attempt on his part to make it appear that the classification of legal subjects resulted naturally and necessarily from definition. Had he followed more closely his model (Hale), he would have avoided at least the charge of confusion. "By some philosopher," says Justice Wilson, "definition and division are considered as the two great nerves of science. But, unless they are marked by the purest precision, the fullest comprehension, and the most chastised justness of thought, they will perplex, instead of unfolding--they will darken, instead of illustrating, what is meant to be divided or defined. A defect or inaccuracy, much more an impropriety, in a definition or division, more especially of a first principle, will spread confusion, distraction and contradictions over the remotest parts of the most extended system" (54). It must also be borne in mind that, there being many forms of government, there will be as many different ideas of municipal law. In a despotism the will of the ruler is law; in another form of government, that which is agreed upon by the people is law. It is useless to attempt to make one universal definition which will be suitable alike to Roman, to English, and to American jurisprudence. A definition cannot be given except after the most perfect conception of the subject of the definition. The truth is, no word can be truly defined until the exact idea is understood in all its relations which the word is 54 Wilson's Works, p. 52. designed to represent (55). Nevertheless, we will venture to define municipal law in American jurisprudence as the body of rules agreed upon by the people regulating the rights and duties of persons (56). Judge Dillon says: "Law is the name for the body or system of rules, regulations, principles and enactments protected by the state and which the state will compulsorily enforce if required" (57). "The thing to remember is that coercion by the State is the essential quality of law, distinguishing it from morality or ethics" (58). From the fate which has attended prior definitions of the law, it would not be surprising if this one was found too narrow in this, or too broad in that, view (59); but in 55 Matthews' "Words, Their Use and Abuse," 23. 56 Huntado v. California, 110 U. S. 516. Several words in this sentence have a technical meaning, which must be understood before the definition readily defines; especially is this the case with the word "person." See 1 Wilson's Works, 89, 90. "That what is now called the common law of England was made up of a variety of different laws, enacted by the several Saxon kings reigning over the distinct parts of the kingdom; which several laws, affecting then only parts of the English nation, were reduced into one body and extended equally to the whole nation by King Alfred, appears from Fortescue's Preface; and that it is therefore properly called the common law of England, because it was done ‘ut in jus commune totius gentis transiret.' But it had an ancienter origin than Edward the Confessor, and was at first called the foolright or people's right (for it is plain it could not be called the common law of Edward the Confessor's time, for then they spoke Saxon; nor in William the Conqueror's time, for then they spoke French), but it received this name when the language came to be altered. And Lord Coke (1 Inst. 142) says: "The common law is sometimes called right, common right, common justice."" Millar v. Taylor, 4 Burr. 2343, 2344. 57 Law and Jur., p. 21. 68 Id., p. 12. 59 See Dillon Law and Jur., p. 9. asmuch as it is apprehended that no definition of the law, or a law, is essential to classification and analysis, we do not deem it wise to here spend any more time upon a definition (60). § 53. Primary classification. The subjects of jurisprudence. American law or jurisprudence has two primary objects, namely, municipal law and international law. These will constitute the main heads of the analysis, using the former term in its broadest sense, as used by jurists generally. These two great branches of law are not distinct and separate-they touch and support each other; but their orbit and sanction is different, quite as much so as that of national and state law. The consideration of this subject may be appropriately closed by adopting, as indicative of the intention of the author, the language of Lord Hale as to his intended treatment of the same subject applied to English law: "Nor shall I confine myself to the method or terms of the civil law, nor of others who have given general schemes and analysis of law; but shall use that method and those words and expressions that I shall think most conducible to the thing I aim at" (61). 60 Mr. George H. Smith, in his learned treatise on the Law of Private Right, where will be found a criticism of the common definitions of law, says: "But while even a perfect definition of the law would do but little to help us at the threshold of our inquiries, an incorrect definition, by giving us a false notion of the law and misleading us as to the method to be pursued in studying it, may do us infinite harm; and hence it will be necessary for us to examine at some length the various definitions that have been offered-so far, at least, as may be necessary to avoid being misled by them." Page xi. 61 Hale's Preface to Analysis. CHAPTER V. PERSONAL RELATIONS. THINGS. ACTIONS (1). § 54. Leading words defined. Fundamental ideas explained. In this chapter we shall endeavor to show and explain the ideas involved in the main heads to be adopted in the classification of the civil branch of American municipal law. The chief obstacle encountered in such a discussion is the difficulty of conveying, in written language, the exact ideas intended. Mr. Madison, in the Federalist (2), very aptly points out the impediment in the following language: "Besides the obscurity arising from the complexity of objects and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them. But no language is so 1 The matters considered in this chapter, and examined with such minute care, are really the touchstones of the law. At every turn in practice they are encountered. Master them at the outset and the way is easy. Pass them over lightly, gaining only obscure ideas of their meaning, and the law seems a labyrinth, and the cases applying it a forest without order. * No. 87. copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be conceived, the definition, of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered; and this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, as luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated." § 55. Suggestions on criticism, construction and interpretation. This suggests a remark in reference to the spirit of criticism of the productions and writings of others-a remark equally applicable and useful in connection with the subject of construction and interpretation of laws or documents (3). Before condemning any one as inaccurate, erroneous or nonsensical, the position of the writer, the age in which he lived, the subject-matter, and indeed the very meaning of the words in the vernacular and idiom of the language of the time and place should be comprehended; and with this in view the author has taken the greatest pains not to do injustice to any of those whose language, expressions or efforts he is obliged to discuss in this and the preceding chapter. On first reading, to a person of the present day and surrounded with the institutions and ideas which obtain 81 Blk. Com. pp. 122, 123. |