The establishment of equality before the law of persons subject to it.

Religious freedom.

No power can be exercised as of a personal right (in truth a mere corollary of the above).

Limitations are set upon all powers.

The creation of a jurisdiction to test all acts by the supreme law with the power to declare void and of no effect any act of any department or officer of government contravening that law (74).

The division of governmental functions and political sovereignty by subjects so that the national law and the state laws operate directly upon the individual. (Baldwin's Modern Political Institution, p. 12.)

In these respects the people of the United States ventured beyond the limits of precedent and founded a new system of government based on their peculiar conceptions of Right, Law and Government (75).

74 See Harvard Law Rev. vol. 7. No. 3, p. 130, Nov. 1893.

75 Prof. Leiber affirms that this is the first instance in history of a government balanced in this way. Leiber, Liberty and Self Govt., 258.

CHAPTER III.

FORMAL JURISPRUDENCE.

§ 29. The practical utility of technical and formal jurisprudence. Every branch of learning, every department of trade, every vocation, has its own peculiar vocabulary, its terms of art as they are called. It is only by the use of words that the ideas involved in a discourse can be communicated.

It is astonishing how few great leading terms are necessarily used even in the largest and most minute discourse. These leading terms express the substantive ideas which constitute the woof of the finished fabric. They are bound together by the warp of verbs, conjunctions and prepositions and embellished and given shades of meaning by adjectives and adverbs. The bulk of any discourse must be in words familiar to us all.

Apply this to the subject of law and it becomes plain that nearly all of its ideas cluster round such leading terms as Right, Duty, Obligation, Wrong, Injury, Person, Status, Thing, Property, Estate, Title, Action, Remedy, Justice, Equity, Law, Government, Agreement, Contract, etc. The ideas these words stand for-that is, what is the technical definition of each in the peculiar field of law-is what is meant when it is said: "The Jural con

ception of this or that word is," etc.; that is, its meaning in law.

The first practical function of jurisprudence then is to ascertain the meaning of such words and ascribe that definite meaning to them. If the hundred pages which followed had no other function and performed no further service, they would be worthy of a careful preliminary perusal and frequent study in connection with the special topics.

But formal jurisprudence performs another service equally important, equally useful and absolutely essential to simplicity, viz.: to give order and proportion to the treatment of the law.

By means of the visible outlines created by this process, the student sees on a single page the map of the whole field he is to cover and the explanation of these necessarily puts him in possession of the fundamental principles of that part of his subject.

Scientific jurisprudence is a subject of wide range and of great depth wherein is found much conflict of opinion among jurists and scholars, all of whom are entitled to respectful consideration.

The author's views are the result of the careful study and deliberate consideration over a period of many years of all such learning as his research discovered. These views have been expressed plainly, but it is hoped not dogmatically, and in the light of several years criticism it is believed that the conclusions find the approval of our best scholars.

Brief as the presentation is, yet it is believed to contain the essential ideas and doctrines which make up the substance of the best books on jurisprudence. In it will be found quite a sufficient list of books to enable the more earnest to make exhaustive study of ancient and modern systems. The theories of Jurisprudence are all displayed. The leading terms of the law defined and the various systems of classification and legal exposition more fully treated than elsewhere.

§ 30. Jurisprudence defined. "The term jurisprudence, like every other important term which takes its hue from the whole complex life of mankind, is ever needing to be defined afresh in the ever new language of each succeeding age” (1).

It has frequently been defined.

All jurists agree that we are indebted to the Romans for the beginning of the scientific treatment of the law and

In the Institutes Jurisprudence is defined as "the knowledge of things divine and human, the science of the just and the unjust" (2).

Since that definition was formulated, the meaning of the word "jurisprudence" has gone through several mutations, until now it has come to signify to us merely the science of human law, and to include within it everything within the domain of law (3).

1 Amos' An English Code, 206.

2 Inst., 1, 1.

8 Heron Jur. 66; 1 Austin Jur. 176; Dillon Law and Jur. 21.

Heron's definition is, "Jurisprudence is the science of positive law, the art of legislation, and the practice of law" (4).

Mackeldy's, "The science of compulsory law with their reasons and sources combined with their philosophy and history. The simple knowledge of laws without these lacks the scientific requisite of jurisprudence" (5).'

"As a science, jurisprudence is analytical; that is to say, it deals with the various relations which are regulated by legal rules, rather than with the rules themselves, abstractly speaking" (6).

Jurisprudence is a science which embraces not only a view of positive law and government as they exist in any particular system, but embraces the theories upon which private rights depend, and upon which governments and nations are builded. It bears "very intimate relation to the progress of civilization, and the study of one must embrace the other" (7). It is not the same as moral philosophy, although moral philosophy is one of the basic principles of jurisprudence. It is a broader term than political science in this; that jurisprudence must descend to and treat specific rules of private right (8).

The modern tendency to specialize has introduced some confusion of thought by engendering the idea that

4 Jurisprudence, p. 66; Austin's Jur. vol. 1, p. 176.

5 Mackeldy's Roman Law, p. 3.

6 Holland's Jurisprudence, p. 5.

7 See Gibbons' Decline and Fall, ch. 44.

• Warren's Law Studies, 167-9. See Am. Bar Assn. Rep. 1902, p. 437, et seq.