Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 44

Having discussed the distinction between Law of Things and Law of Persons, I proceed to the connected distinction between Public Law and Private Law.

The term ‘public law’ has two principal significations: one of which significations is large and vague; the other, strict and definite.

Taken with its strict and definite signification (to which I will advert in the first instance), 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.

745Taken with its strict and definite meaning, public law ought not (I think) to be opposed to all the rest of the law, but ought to be inserted in the Law of Persons, as one of the limbs or members of that supplemental department.

But before I proceed to the place which public law (as thus understood) ought to occupy in an arrangement of a corpus juris, I will touch briefly on two difficulties, which, it appears to me, are the only difficulties that the subject really presents.

An account of public law in this sense must comprise some of the rules of positive morality.

I have said that 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 subordinate.

Now, so far as public law relates to the Sovereign, it is clear that much of it is not law, but is merely positive morality, or ethical maxims. As against the monarch properly so called, or as against the sovereign body in its collective and sovereign capacity, the so-called laws which determine the constitution of the State, or which determine the ends or modes to and in which the sovereign powers shall be exercised, are not properly positive laws, but are laws set by general opinion, or merely ethical maxims which the Sovereign spontaneously observes.

In strictness, therefore, much of the public law which relates to the Sovereign or State, is not matter for any portion of the corpus juris: understanding by the corpus juris the system or collective whole of the positive laws which obtain in any society, political and independent.

And, for the same reason, it particularly is not matter for the Law of Persons or Status. For a status or condition, properly so called, consists of legal rights and duties, and of capacities and incapacities to take and incur them. And, consequently, a sovereign government of one, or a sovereign government of a number in its collective and sovereign capacity, is not invested with a status (in the proper acceptation of the term): or it is not invested with a status (in the proper acceptation of the term) derived from the positive law of its own political community.

But though, in logical rigour, much of the so-called law which relates to the Sovereign, ought to be banished from the corpus juris, it ought to be inserted in the corpus juris for reasons of convenience which are paramount to logical symmetry. For though, in strictness, it belongs to positive morality or to ethics, a knowledge of it is absolutely necessary in order to a knowledge 746of the positive law with which the corpus juris is properly concerned.

The case which I am now considering is one of the numerous cases wherein law and morality are so intimately and indissolubly allied, that, though they are of distinct natures and ought to be carefully distinguished, it is necessary nevertheless to consider them in conjunction. A description, therefore, of the law which regards the constitution of the State, and which determines the ends or modes to and in which the Sovereign exercises the sovereign powers, is an essential part of a complete corpus juris, although, properly speaking, that so-called law is not positive law.

The law of England, for example, cannot be understood, without a knowledge of the constitution of Parliament, and of the various rules by which that sovereign body conducts the business of legislation: although it is manifest that much of the law which determines the constitution of the Parliament, and many of the rules which Parliament follows in legislating, are either mere law imposed by the opinion of the community, or merely ethical maxims which the body spontaneously observes.

So much, therefore, of the law, regarding the Sovereign, as is necessary to a due understanding of the corpus juris, ought to be inserted in the corpus juris, although it comes not within the predicament of positive law. And, since the law regarding the Sovereign ought to be inserted in the Law of Persons, we may say, by way of analogy, that the Sovereign has a status or condition; although a status, properly so called, is composed of legal rights and legal duties, or of capacities or incapacities to take or incur legal rights and duties.

And here I will remark, that public law (in its strict and definite meaning) is not unfrequently divided into two portions: constitutional law, and administrative law: (Staats-Recht or Constitutions-Recht, and Regierungs-Recht). The first comprises the law which determines the constitution of the sovereign government: The second comprises the law which relates to the exercise of the sovereign powers, either by the Sovereign or by political subordinates.

This division of public law does not tally with the division of it into law which regards the status of the Sovereign, and law which regards the rights and duties of political subordinates. The latter, indeed, is probably comprised under administrative law, but the former does not coincide with constitutional law: a considerable portion of it likewise falls under administrative 747law. A great portion of our parliamentary law relates to the constitution of the supreme body, but much of it only consists of rules observed by the body itself in conducting the business of legislation and of supreme government, which is properly administrative law.

The second of the two difficulties to which I have adverted, is the difficulty of drawing the line of demarcation, by which the conditions of private persons are severed from the conditions of political subordinates. The powers of master, father or guardian subserve, in many respects, the very purposes for which powers are conferred on judges.

This difficulty I have stated in my Outline (p. 71, vol. i. ante) in the following words:—

‘It is somewhat difficult to describe the boundary by which the conditions of political subordinates are severed from the conditions of private persons. The rights and duties of political subordinates, and the rights and duties of private persons, are creatures of a common author: namely, the Sovereign or State. And if we examine the purposes for which their rights and duties are conferred and imposed by the Sovereign, we shall find that the purposes of the rights and duties which the Sovereign confers and imposes on private persons, often coincide with the purposes of those which the Sovereign confers and imposes on subordinate political superiors. Accordingly, the conditions of parent and guardian (with the answering conditions of child and ward) are not unfrequently treated by writers on jurisprudence, as portions of public law. For example: The patria potestas and the tutela of the Roman Law, are treated thus, in his masterly System des Pandekten-Rechts, by Thibaut of Heidelberg: who, for penetrating acuteness, rectitude of judgment, depth of learning, and vigour and elegance of exposition, may be placed by the side of Savigny, at the head of all living Civilians.’

The powers residing in a master over his slave, in a father over his child, and in a guardian over his ward, subserve the same general purposes as the powers of judges and other ministers of justice, because they are designed, amongst other purposes, for the prevention of crime. The powers of punishment which the Roman law originally entrusted to the paterfamilias were so extensive, that this accounts for the very small space occupied by criminal law in the early Roman law. The place of criminal 748law was mostly supplied by the powers vested in those private persons, who being the proprietary and respectable class, were little tempted to commit crimes, while the remainder of the community were subject to these powers residing in them, and were thereby prevented from committing crimes; or, if they did commit crimes, were punished by those in whose potestas they were, at the discretion of those persons.

I cannot see how any precise line of demarcation between political and private conditions can possibly be drawn, unless it be this: that when the condition is private, the powers vested in the person who bears it more peculiarly regard persons determined specifically; when public, those powers more peculiarly regard the public considered indeterminately. For example, the powers of the master over his slaves, of the father over his children, or of the guardian over his ward, regard peculiarly the slaves of that master, the children of that father, or the ward of that guardian, all of whom are persons determined specifically. Whereas the powers vested in a judge, or other officer of justice, are not given with reference to this or that determinate individual or individuals, but generally to the whole community.

This, however, is so extremely vague, that different persons might refer the same condition; some to political, others to private conditions. Accordingly, such is the case. The patria potestas and the tutela of the Romans are placed by Thibaut and other German writers under the head of public law, while by others, of equal eminence, they are placed in private law. I am not aware, however, that this is of very great importance. Most of the so-called public conditions evidently regard primarily the public indiscriminately; while most of the private conditions, manifestly primarily regard specifically determined persons, and would therefore be put into that class without hesitation.

Public law, or the law of political conditions, should not be opposed to the rest of the legal system, but should form one member or head of the Law of Persons.

Having touched on these difficulties, I now proceed to give my reasons for the proposition which I laid down at the outset of this Lecture, namely, that public law, in its strict and definite meaning, as the law of political conditions, should not be opposed to the rest of the law, but should be inserted in the Law of Persons, as one member or head of that department of the corpus juris.

Of the various reasons which might be given for this arrangement, the following reason, I think, will amply suffice.

In explaining the nature of the distinction between Law of Things and Law of Persons I said that there are two reasons for 749detaching the rights and duties of certain classes from the body of the legal system: 1st. That it is convenient to place them together under separate heads, instead of leaving them dispersed throughout the whole extent of the corpus juris: 2ndly. That they may be detached from the body of the legal system without breaking the coherence of the latter: nay, that the exposition of the latter is more compact and clear, in consequence of those rights and duties being detached from it, and remitted to the supplement or appendix styled the Law of Persons.

Now both these reasons apply in an eminent degree to the powers, rights, and duties of political superiors. With the exception of the powers and duties of judges and other ministers of justice (which perhaps it is expedient to prefix to the general law of procedure), there are no classes of persons whose peculiar rights and duties may be detached more commodiously from the bulk of the legal system than those of public or political persons. And, if the powers, rights, and duties of political persons ought to be detached from the bulk of the legal system, it is clear that they ought not to be opposed to all the rest of the system; but ought to form a limb of the miscellaneous and supplemental department which is marked with the common name of the Law of Persons. For the law which regards specially the powers and duties of political persons, is not of itself a complete whole, but is indissolubly connected, like the law of any other status, with that more general matter which is contained in the Law of Things, and also with the law regarding other conditions.

Take, for example, the case of our own King. It is clear that a knowledge of his peculiar powers, rights, and exemptions presupposes a knowledge of the Law of Things, and also of many of the status which are styled private. Without a knowledge of the general rules of property, his peculiar proprietary rights, as king, are not intelligible. Without a knowledge of the law of descents, the peculiarities of his title to the crown are not to be understood. Without a knowledge of the law of marriage, his peculiar relations to his royal consort are not explicable.

And the same may be said of the powers and duties of any political person whatever. Considered by themselves, they are merely a fragment. Before they can be fully understood, they must be taken with their various relations to the rest of the legal system.

If, then, the law of political persons be opposed by the name of public law to the rest of the legal system, one of these absurdities inevitably ensues. Either a bit of the corpus juris is 750opposed to the bulk or mass: Or (to avoid that absurdity) the rest of the legal system must be appended to public law; and public law, plus the rest of the legal system, must be opposed to that rest of the legal system from which public law is severed.

There can be no more reason for opposing public law to the rest of the legal system, than for opposing any department of the Law of Persons to the bulk of the corpus juris. What should we say to a division of law which opposed the law of bankruptcy, or the law of marriage, to the Law? And yet the division of law into jus publicum and jus privatum involves the same absurdity. For jus publicum is the law of political conditions, and jus privatum is all the law, minus the law of political conditions. The opposed terms public and private law tend moreover, in my opinion, to generate a complete misconception of the real ends and purposes of law. Every part of the law is in a certain sense public, and every part of it is in a certain sense private also. There is scarcely a single provision of the law which does not interest the public, and there is not one which does not interest, singly and individually, the persons of whom that public is composed. Some parts indeed of the law, as, for instance, the law of political conditions, primarily regard perhaps more peculiarly the public considered generally; while other portions regard primarily the single individuals of whom the public is composed. But this line of demarcation is too loose to justify the division; which seems to import that some portions of the law exclusively regard the public, and others exclusively regard single individuals.

Agreeably to the view which I now have taken of the subject, Sir Matthew Hale, in his Analysis of the Law, and Sir William Blackstone, following Sir M. Hale, have placed the law of political persons (sovereign or subordinate) in the Law of Persons: instead of opposing it, as one great half of the law, to the rest of the legal system.¹² Blackstone divides what he calls law regarding the relative rights of persons into law regarding public relations, and law regarding private relations. Under the first of these he places constitutional law and the powers, rights, and duties of subordinate magistrates, of the clergy, and of persons employed by land or sea in the military defence of the State.

¹² See Table VIII. post.

This placing the law of political persons in the Law of Persons as one of its limbs or members, instead of opposing it to the rest of the corpus juris, is nearly peculiar to Hale and 751Blackstone; and originated with Hale. Among continental jurists, many of whom I have diligently perused, I have not met with a single instance: though Falck of Göttingen says that the Danish Code, and the systematic expositions of the Danish Code, follow this arrangement.¹³ The German jurists treat this arrangement as a great absurdity, importing great Verwirrung, or confusion of ideas, though the direct contrary appears to me to be the truth. And the adoption of this arrangement by Sir Matthew Hale, appears to me a striking indication of his originality and depth of thought, since if he had been a mere copyist, he would have adopted the arrangement which was already familiar to him in the writings of the Civilians.

¹³ ‘In den Rechtssystemen ausländischer Gelehrten, z. B. der Dänen und Engländer, wird bisweilen die Abhandlung der staatsrechtlichen Verschiedenheit unter den Menschen auch in der Personenrecht gezogen. Diese Verwirrung der Begriffe kommt bei uns gar nicht vor.’—Falck, p. 48, § 27 (note).

Public law in its large and vague signification originating with the use made of the term by the Roman lawyers. Logical mistake of the distinctions built upon it.

From public law with its strict and definite meaning, I pass to public law with its large and vague signification.

Endeavouring to explain its import, as taken with its large and vague signification, I will advert to the distinction between jus publicum et privatum as drawn by the Roman lawyers: that being the model or pattern upon which the modern distinctions into public and private law have all of them been formed.

The Roman lawyers divide the corpus juris into two opposed departments:—the one including the law of political conditions, and the law relating to crimes and criminal procedure: the other including the rest of the law. The first they style jus publicum, the second they style jus privatum.

In a former Lecture¹⁴ I explained the origin of the term ‘public wrongs,’ as applied to crimes. I observed that they acquired this name from a mere accident, from the fact that crimes were originally tried by a body which might be called without impropriety the public, namely, the sovereign Roman People. The original reason ceased when the jurisdiction in criminal causes was removed from the people, and vested in subordinate judges. But the name remaining, it was supposed afterwards by the Roman jurists, that crimes were called public wrongs, not because of the tribunal by which they were originally tried, but because crimes affected more immediately the interests of the whole community. I exposed this fallacy completely in an earlier part of my Course. I then shewed that what are called civil injuries affect the public interest as much as crimes, 752and that the distinction rests not upon any difference, in their consequences and effects, but upon the different way in which they are pursued. It is expedient to leave the prosecution of some offences to the discretion of the injured parties: others cannot expediently be so left, and the State is obliged to take the prosecution of them upon itself. The distinction is quite arbitrary; that is a civil injury in one system of law which is a crime in another.

¹⁴ See pp. 404, 501, vol. i. ante.

Inasmuch as crimes were, however, supposed to affect more directly the interests of the whole community, and inasmuch as the law of political status does really regard it in a more direct manner than any other portion, criminal law and the law of political conditions were placed by the classical jurists together, and were opposed to all the rest of the corpus juris.¹⁵

¹⁵ Method of Roman Lawyers, p. 371; Bentham’s Method, p. 741. [In Sarah Austin’s edition, the first reference is to the notes given here on pp. 739f.] See Table IX. post.

They style criminal law and the law of political conditions jus publicum: for, say they, ‘ad statum rei Romanæ, ad publice utilia spectat.’

They style the opposed department of the corpus juris jus privatum: for, say they, ‘ad singulorum utilitatem, ad privatum utilia spectat.’

This explains the order of Justinian’s Institutes. It is merely a treatise upon private law. By consequence, criminal law, with the law of political status, is not comprised by it: The classical jurists, from whose elementary works the Institutes were copied, having thought that public law was not a fit subject for an institutional or elementary treatise. I know not why: for a knowledge of the constitution of the state is as necessary to a knowledge of private law, as the latter is to a knowledge of the constitution of the state. All the parts of the corpus juris are in truth so implicated with one another, that they cannot be separated.

Blackstone’s Commentaries are not confined to private law, but are intended to serve as an institutional treatise on the whole Law of England: though he touches upon certain parts (as upon equity and ecclesiastical law) in a comparatively brief and superficial manner.¹⁶ The distinction between public and private law is rejected or suppressed altogether, or nearly altogether by him. He does not style the law regarding political conditions a branch of public law, but places it in the law of persons. But, this notwithstanding, there is still a trace of the 753distinction in Blackstone’s Commentaries. He styles the department which relates to crimes, and to punishments and criminal procedure, ‘Public Wrongs.’ This is, I believe, the only vestige of the distinction which Blackstone retains. Hale returns none at all: for, in his analysis, he throws out criminal law altogether. In his Pleas of the Crown, he does not designate crimes by the name of public wrongs, but calls them much more appropriately, pleas of the crown, that is, offences of which the Crown or State retains the prosecution in its own hands.¹⁷

¹⁶ Method of Blackstone, p. 736, ante. See Table VIII.

¹⁷ For an examination of the distinction into public and private law, as drawn by the classical jurists, see Table I., Notes 2 and 8, post.

With reference to its ultimate purpose, the law of political status, and criminal law, is not to be distinguished from the so-called private law. Each tends to the security of the public: meaning by the public, the several individuals who compose the society, as considered collectively or without discrimination. Each tends to the good of those same individuals considered singly or severally. The only difference is, that in the one case the good of the whole is considered more directly; whilst, in the other, the more immediate object is the good of determinate individuals.

Another reason against the distinction is this. That the matter of the Law of Things is just as much implicated with public law as with the law of private conditions.

The logical error of opposing a small bit of the law to the remainder of the body, is not confined to the distinction between the law of things, and the law of persons, or between public and private law. Many writers, for example, detach criminal law from the whole legal system, calling the rest of the law civil. Others detach ecclesiastical law, and oppose all the remainder to it, by the name of civil. Others distinguish the law into military and civil. The word civil has about twelve different meanings; it is applied to all manner of objects, which are perfectly disparate. As opposed to criminal, it means all law not criminal. As opposed to ecclesiastical, it means all law not ecclesiastical: as opposed to military, it means all law not military, and so on. Even jus privatum is sometimes also called jus civile.

Nothing can be more varying than the views taken by some modern writers of the distinction between public and private law. Some include in public law, besides the law of political conditions, and of crimes and criminal procedure, the whole law 754also of civil procedure. As the distinction between public and private law rests upon no intelligible basis, there is certainly no reason why public law should not include this, or any other portion of the corpus juris. If these writers had any particular reason for including it, their reason probably was that public law is administered by public persons, namely by judges, and other ministers of justice, and that the law of civil procedure is administered by the same persons. But a great deal of the law of civil procedure comprises rights vested in private persons: namely, rights vested in the parties to the cause as against the judges, or in one party against the other, in consequence of circumstances arising in the course of the cause. And, moreover, it is manifest that the whole of the law is administered by judges; not the law of procedure only.

From the utter impossibility of finding a stable basis for the division, others exclude criminal law. They see that a multitude of crimes affect individuals as directly as the delicts which are styled civil.

But the greatest logical error of all is that committed by many continental jurists, who include in public law, not only the law of political conditions, of crimes, and of civil and criminal procedure, but also international law; which is not positive law at all, but a branch of positive morality. It is sometimes expedient to include in the corpus juris a part of what is really positive morality, because positive law is not intelligible without it; but there is no such reason for including international law considered as a complete system of morals, or any part of it, except those parts which have changed their nature, and by adoption have been changed from positive morality to a part of the positive law obtaining in the particular country. If not parts only, but the whole of international law is to be included in the corpus juris, there is the same reason for including it in the whole of the positive morality of the particular country; for on this, as well as on international morality, positive law is in a great measure founded.

Every division of law into which this detestable word enters must be indefinite. To shew the thickness of the confusion which surrounds it, we may refer to the impotent attempt of Burke in a passage of his ‘Thoughts on Scarcity’ to define public law.

The phrase public law has at least four or five totally different meanings. 1st; it has either of the two meanings above adverted to: its strict or definite and its large or vague 755sense. 2ndly; it sometimes means the law which proceeds either from the supreme legislature, or from subordinate political superiors, as distinguished from what have been termed laws autonomic, that is, laws set by private persons in pursuance of legal rights with which they are invested. These laws which proceed indirectly from the sovereign legislature, through rights with which it has invested private persons, are called private laws, and all other public laws. 3rdly; public laws are sometimes opposed to laws creating privilegia. Laws of this kind are sometimes called jus singulare, and jus publicum, as opposed to them, is called jus commune. I may here observe, that if the privilegium confer a right, or if that right be of the class of dominia, or jura in rem, that is, rights availing against the world at large, the law creating the privilegium is so far as much publicum or commume as any other law, since it imposes a duty upon all persons indiscriminately. 4thly; under public law are sometimes classed definite and obligatory modes of performing certain transactions. ‘Testamenti factio non privati sed publici juris est.’ 5thly: by public laws are sometimes meant the laws called prohibitive or absolutely binding, as opposed to the laws called dispositive or provisional. The legislator in certain instances determines absolutely what shall be the effect of a given transaction, namely, determining what effect the transaction shall have, if the parties do not provide otherwise. Now, when the legislature determines absolutely the effect of a transaction, the law is called public: when he leaves a certain latitude to the parties, it is called dispositive or provisional; being to take effect only in case no disposition is made by the parties themselves. In France, this is the case with the law of marriage. The Code lays down two or three different sets of rights and duties, which may be the consequences of marriage at the option of the parties; only determining what legal effect the marriage shall have if the parties do not contravene the disposition of the law. This use of terms accounts for the meaning of several principles of law which appear to have a great sense in them, but which are merely identical propositions. Jus publicum privatorium pactis mutari non potest: but jus publicum is the law which cannot be so changed; the proposition, therefore, only means that law which cannot be modified by private connections, cannot be modified by private conventions. In like manner pacts are divided into pacta quæ ad jus spectant, and pacta quæ ad voluntatem spectant. Another of these saws, which is equally insignificant, is this: privata conventio juri publico nihil derogat. 756This use of the term jus publicum is eminently absurd. The law so-called is no more public law than any other. It is expedient in the one case, for the sake of the public, that the effect of a transaction should be definitively settled by the legislature; in the other case it is expedient that the effect should not be thus peremptorily predetermined, but that a certain degree of latitude should be allowed to the parties.

A similar logical error to those which I have pointed out, is the separation from the rest of the law by the jurists of France and Germany, of special law, or the law of the conditions which I call professional; conditions not domestic, or, in the words of Hale, economical, but arising by reason of carrying on certain trades or professions. By the laws, and the expository writers of the Continent, the law of professional conditions is not placed in the law of persons as a limb or member of it, but is severed from the whole corpus juris, and opposed thereto. The most remarkable instance of this is in the French Code. Only so much of the Law of Persons as concerns the domestic and quasi-domestic conditions, is placed in the civil code; the law of traders is the subject of a separate code, termed the Code de Commerce, which stands opposed to the body of the law. There is also a Code rural, relating to the conditions which have reference to agriculture. The other professional conditions are not mentioned in any code at all, but seem to be left to the old chaos of jurisprudence.

This is a remarkable instance of the servility with which the French code was compiled. The traders and others are subject to peculiar laws, and a peculiar procedure, arose from mere accident. A king of France, I think Francis I., was bribed by the merchants of Marseilles, to give to merchants the privilege of being ruled by a better law, and a better and cheaper procedure. This accordingly was blindly adopted by the authors of the French code; never considering whether, if the procedure of their peculiar tribunals be really better than that generally prevailing in France, it ought not to be introduced into the ordinary courts.

No intelligible basis for the distinction between public and private law as co-ordinate departments, whether public law taken in its large or in its narrower sense.

Public and special law, or law of political and professional status, are departments of the Law of Persons. Public Law, in this (or any other sense) is not distinguishable from any other portion of internal law by its final cause: viz. the good of the Public. Public Law in this sense, is adjective, instrumental or sanctioning: but so is the law of crimes and civil injuries, of 757rights ex delicto, and of procedure: nay, so are many portions of primary, or civil, rights, etc. If, therefore, the distinction into private and public law is to be observed, these must enter into public law.—If crimes and criminal procedure are to be included in public law by reason of their sanctioning character, so must civil injuries, etc. (See Notes, p. 735 et seq.)

Public Law and Private Law cannot (in these senses) be opposed to one another, or treated as co-ordinate departments of a common whole. The Law of Things (and even the law of descents and professional status) contained matter which political status suppose; and which are also supposed by public law in any other sense.¹⁸ The term ‘public law’ is mis-expressive; as denoting, not merely the law of political status, but either all law, or all law which regards violations and sanctioning rights, etc.

¹⁸ Blackstone: Instances in Parliament, King, etc. vol. i. p. 193.

The distinction between private law and public law (considered as co-ordinate departments) rests upon no intelligible basis, and is inconvenient. If it be said that the end of public law is the protection and enforcement of primary rights and obligations in and on individuals, the answer is, that that is also the end or final cause of the law of civil injuries, etc., and of the law of crimes, etc. A property or quality which belongs to several objects can be no ground for distinguishing some of them from the rest.

By ‘the Public’ (where it means anything) we mean all the individuals who compose the community, governors as well as governed. In which sense of the word public, all Law is public; whether we look to the persons in whom rights and obligations reside, or whether we look to what is, or at least ought to be, the end of law:—that end being the good of all. If it be said, that by ‘the public’ is meant the governors, and by private persons, the governed; by Public Law, the law which relates to the powers, rights, and obligations of the governors as such; and by Private Law, the rights, etc. of the governed as such; the answer is that the terms are equivocal: ‘public,’ denoting something besides ‘relating to governors.’ Taken with its large signification, the distinction (if there is one) which the term ‘public law’ gives rise to must be this:—

Public Law is that portion of the law of any country which determines the powers, rights, and obligations of certain status: viz. those of governors as such; and, by implication, those of the governed as such.

Private Law:—that which determines all the rights, etc. of 758all the other classes, exclusive of their rights, etc. in regard to the governors.

There is no reason for opposing the rights, etc. which grow out of political status to all others; more than for opposing the rights, etc. which grow out of any other status to the rest of the law.

If it be said that these rights, etc. are purely instrumental; the answer is, so is Criminal Law. And if it be said that that is also public, so is the law of civil injuries; nay, so are many of the primary rights which are confessedly private or civil; as e.g. those of trustees—those of parents, to a considerable extent.

It is not contended that they ought not to be separated; but it is contended that they ought not to be opposed to all the rest.

All relations of subject to subject imply another relation to the Sovereign as wielding the sanction; And in this sense absolute obligations are relative: i.e. relative to the power or right of punishing, in case of violation.

The great reason against the division is this:—That many or most of the generalia which are contained in the Law of Things are just as applicable to the status of governors as to any of those of the governed: e.g. the governor is proprietor; makes contracts, etc. These generalia, therefore, applying to all status, you cannot logically separate one of these status from the rest, and oppose it not only to the rest, but also to that generical matter which is common to it with the rest. Suppose I opposed animals and horses to men, by reason of an imaginary superiority in men to other animals.

The judicial, military, and other political status stand in the same relation to primary rights, as sanctioning rights and obligations; i.e. they minister to the protection of those primary rights. This is a reason for rejecting the division into jus privatum et jus publicum. For either delicts, rights ex delicto, and procedure, must be arranged with jus privatum, contrary to the division; or the division must be preserved, and the connection between primary rights, etc. and sanctions lost sight of, in consequence of the burying these last in the rights, etc. of governors. Again; the primary rights of governors stand, with the sanctioned rights of the governed, in a common relation to sanctioning rights and obligations. The Sovereign is not only the author of Law, but is also protected in his primary rights by the sanction which emanates from himself.¹⁹

¹⁹ See ‘Outline,’ p. 43, vol. i. ante.

759Again; many of the definitions and explanations contained in jus privatum are equally applicable to jus publicum. Where then, with this division, are they to be placed? Are they to be placed under jus publicum? or repeated in both? or separated from both, and treated under a common head? [E.g. All those parts of procedure which are not specially applicable on behalf of, or against political persons, ought to be placed under jus privatum (Law of Things and Law of Persons), and yet that part of them which belongs to Law of Things, is as much a præcognoscendum to political as to private status.]

Jus publicum, so far as it has a meaning, denotes all those rights and obligations (including institutions) which minister to the protection of other rights. In this sense, the law of civil injuries, crimes, etc. is a part of jus publicum. To sever therefore jus publicum from jus privatum would lead to a most inconvenient arrangement; destructive of the division into Law of Things and Law of Persons.

The fundamental distinction of Law of Things and Law of Persons, is built upon the conveniency of considering the genus apart from, and before, the several species contained under it. By consequence, so much of jus publicum (whether it consists of constitutional, judicial, or any other branch of administration) as is necessary to the apprehension of the genus ‘Law of Things,’ should be put into the Law of Things; the rest dismissed to the Law of Persons. The objection urged by Falck to Blackstone in this respect appears to me to be unfounded.

International law, so far as adopted, etc. is, in a great measure, private law (i.e. it regards the relative rights and obligations of private persons, members of separate states); and belongs to Law of Persons: Aliens, seamen, etc.

If private law ought to be opposed to public, it ought to precede; since that part of it which is called the Law of Things contains numberless præcognoscenda which are equally applicable under public law, and which, therefore, must otherwise be repeated.

To oppose public law to private, is to oppose the law which regards certain classes of persons to all the rest of the law: i.e. not only to the law which regards the rights, etc. that are particular to all other classes, but to the rights, etc. which regard all (public persona included). Much of what must be looked at in considering public law is, in every system, included under private law; so that here is a division, of which one of the members contains much that belongs to the other. Ecclesiastical and Civil, Military and Civil, etc. are in the same case.

The only wrongs which, with propriety, can be called ‘public’ are violations of such rights (if any such there be) as are vested in the public (not in the government for the public): Meaning by the Public, in the first instance, a corporate or juridical person; and by the Public (in the second instance) that aggregate of individual and juridical persons who can only be considered as a whole, by reason of their living under the protection of the same government. In some of the United States, Indictments, etc. are drawn in the name of the People, Commonwealth, etc.; but this is a mere flourish.

Any injury cognisable by the law of England will be found to be an injury to some person or body of persons. Public nuisances for instance; offences against bonos mores, etc., which seem to be violations of obligations to which there are no corresponding rights in any given person or persons; and which may be called public offences, by reason of the injury being entirely contingent, and being liable to fall upon any of the whole heterogeneous mass which is called the Public. In all other cases of intentional or negligent violation, there is the same contingent evil, but there is also a past injury done to some assignable individual, either in his own right or as trustee for others.—Marginal Note in Blackstone, vol. iii. chap. 13.