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may prescribe to my child or ward certain conduct, which the Courts of Justice will compel him to follow.
'A private person cannot be the author of a law; but he may be a party to a transaction, by which transaction, in virtue of a general law made by the legislature, he gives certain rights and creates certain obligations."
Austin divides positive laws into–1. Imperative. 2. Declaratory laws, or laws explaining the import of existing positive law. 3. Laws abrogating or repealing existing positive law. 4. Imperfect laws, or laws of imperfect obligation.
Public Law. The phrase public lav has at least four or five totally different meanings.
Austin says, 'Taken in its strict and definite signification, the term public law 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.' 5 In this sense, it is obvious that a large portion of the matter embraced in it is not law, but positive morality or ethical maxims.
The Romans style criminal law and the law of political conditions, jus publicum; for, say they, 'ad statum rei Romanæ, ad publice utilia spectat': to which they
i Austin, p. 540.
2 Ib. p. 541. Ib. p. 105.
4 Ib. p. 781. 5 Ib. p. 770. In this sense it is not unfrequently divided into two portions, constitutional law and administrative law. Administrative law determines the ends and modes to and in which the sovereign powers shall be exercised; shall be exercised directly by the monarch or sovereign number, or shall be exercised directly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust. (Austin, p. 73.)
oppose the residue of the law, which they style jus privatum; for, say they, 'ad singulorum utilitatem, ad privatum utilia spectat.'
This distinction, however, with the reason assigned for drawing it, is calculated to mislead, by suggesting that the interests of individuals are not identical with those of the state. It tends to foster the error that the commission of civil wrongs is less prejudicial to a state than the commission of criminal offences; and it diverts attention from the study of the more important branch, if indeed the one can, correctly, be said to be more important than the other. If, however, we understand by the proposition, that we may regard a political community in two lights, first as a unit, and secondly as an aggregate of independent units, we see that every class of law may be ranged more or less accurately under one of two beads, which may with propriety be respectively termed public and private. To the public law, or that portion of the law specially enacted for the community regarded as a unit, we may refer in every political system :-1, Constitutional Law; 2, Public International Law; 3, Military Law; 4, Ecclesiastical Law, i.e., on the supposition of a union between Church and State ; 5, Criminal Law, i.e., when criminals are prosecuted either by, or in the name of the state or sovereign, the consequence of conviction being punishment; and 6, Bankruptcy Law, the basis of which I take to be the recognition by the State that, under certain circumstances, any citizen may become so hopelessly embarrassed as to render it a social necessity to relieve him from the whole or a portion of his liabilities, and to suspend as to them the machinery of the civil law. Under the head of private law we may place the residue.
Equity.l-Upon reference to Table No. 2, it will be observed that the term “Equity" does not appear. But as in connection with perhaps every system of Jurisprudence we find either that term or an equivalent, some mention of it here is necessary. We may observe :-1. Every law is, necessarily, general or particular as to the terms in which it is couched. 2. As the object of every law is to define, or to assist in defining, the limits of the subject's freedom, it is obvious that, with but comparatively few exceptions, the very essence and merit of a law depends upon the precision of its language. 3. Assuming that the law as it stands today is exactly suited to the circumstances and necessities of to-day, and assuming at the same time, what invariable experience has taught us, that all things are mutable, and consequently that circumstances and necessities are constantly varying ; and we seem driven to the conclusion that the very fact of a law being exactly suited to to-day creates a presumption that it will not suit the future. 4. In the early stages of every political system that has not, as did the United States, adopted as it were, bodily the law of some other State—the laws, and cases decided upon those laws, are necessarily few; and consequently the judge, in endeavouring to adjudicate upon the merits of a novel case, must either determine it by the letter or by the spirit of the law. The letter of the law may work a hardship by not exactly fitting the case, though the case may strictly be within its spirit. Experience has shown that weak judges prefer to adhere to the text,
1 Vide post “English Municipal Law,” tit. “Equity.”
rather than to grapple with principles; and as the result, narrow and technical decisions have not unfrequently been piled up, till principle became entirely hidden from view. The unfitness of the institutions of the past to the sentiments and necessities of the present, or the denial of justice, i.e. the law of the land, from an overweening regard for what is commonly styled authority, appears to have rendered one of two things imperative-the law had to be recast, or certain new judges appointed, with discretionary power to grant relief in cases where the actual law or judicial precedents would work an obvious wrong.
All nations have experienced the one; most, it may be presumed, have experienced the other; and some, both. Most, perhaps imbued with the sentiment, “ that it is better to bear the ills we have than to fly to others that we know not of,” have resorted, at least in the first instance, to the latter expedient; and while leaving the general body of the law essentially in its integrity, have endeavoured to supplement it with an adjusting agency, a species of legal safety valve--an Equitable Jurisdiction. Equity judges, however, like Common Law judges, or judges when exercising their Equity functions as distinguished from their Common Law functions, in systems where the same person possesses both, naturally fall into the same course with respect to each. The decisions of to-day become the precedents of to-morrow. In the course of time, the file of precedents grows so formidable, as to leave to the presiding judge of the period nothing but the name, and to his court, nothing but the fiction. The Equity judge is no less fettered by authority than is his Common Law brother judge. If, in the general opinion of the rulers for the time being, that mass of authority is wholesome, things are suffered to continue; the judges of either jurisdiction, according to their individual capacity and integrity, administering the law equitably, i.e. impartially. If, on the other hand, the mass of authority is regarded as a cumbrous impediment to justice, or as a fertile source of injustice, the two systems are fused. The wheat is sifted from the chaff, and the good codified. In other words, matters are put in train for a repetition of the same career; the only difference is that the start being from a new basis, from a basis resulting from long experience, the changes will be less rapid.
In B.c. 753, Rome started with laws of which we may say that practically we know nothing. Between B.c. 451 and B.C. 449, the then existing laws were codified and drawn up in the form with which we are familiar, and which is known as the Twelve Tables. Between B.C. 449 and B.c. 366, the Patricians and Plebeians carried on the struggle for political equality. In the latter year, the Plebeian triumphed in the election of one of his order to the highest office in the land—the Consulate. In B.C. 301, we find him Pontifex Maximus; and a few years later, in B.c. 286, the Hortensian Law made Plebiscita equally binding upon both orders. Slowly but steadily, during the latter portion of this period, the commercial relations of Rome with other countries had been growing in importance. The Decemvirate, who prepared the Twelve Tables, not having even dreamed of such a state of things, had made no provision for it. Those laws were applicable only to Roman citizens. Consequently, in B.C. 245, it was found necessary to appoint a special judge—the Prætor Peregrinus—to do justice as best he could in disputes between Roman