 In discussing the theory of the state, we noticed the distinction between sovereign and subordinate power. The former is that which, within its own sphere, is absolute and uncontrolled, while the latter is that which is subject to the control of some power superior and external to itself. We have now to consider, in relation to this distinction, a celebrated doctrine which we may term Hobbes's theory of sovereignty. It was not, indeed, originated by the English philosopher, but is due rather to the celebrated French publicist, Boudin, from whom it first received definite recognition as a central element of political doctrine. In the writings of Hobbes, however, it assumes greater prominence and receives more vigorous and clear-cut expression, and it is to his advocacy and to that of his modern followers that its reception in England must be chiefly attributed. The theory in question may be reduced to three fundamental propositions, one, that sovereign power is essential in every state, two, that sovereign power is indivisible, three, that sovereign power is unlimited and illimitable. The first of these propositions must be accepted as correct, but the second and third would seem to have no solid foundation. The matter, however, is one of very considerable obscurity and complexity, and demands careful consideration. 1. Sovereignty essential. It seems clear that every political society involves the presence of supreme power. For otherwise, all power would be subordinate, and this supposition involves the absurdity of a series of superiors and inferiors at infinitum. That although this is so, there is nothing to prevent the sovereignty which is thus essential from being wholly or partly external to the state. It is, indeed, only in the case of those states which are both independent and fully sovereign that the sovereignty is wholly internal, no part of it being held or exercised ab extra by any other authority. When a state is dependent, that is to say merely a separately organized portion of a larger body politic, the sovereign power is vested wholly or in part in the larger unity and not in the dependency itself. Similarly, when a state, though independent, is only semi-sovereign, its autonomy is impaired through the possession and exercise of a partial sovereignty by a superior state. In all cases, therefore, sovereign power is necessarily present somewhere, but it is not in all cases to be found in its entirety within the borders of the state itself. 2. Indivisible Sovereignty Every state, it is said, necessarily involves not merely sovereignty, but a sovereign, that is to say, one person or one body of persons in whom the totality of sovereign power is vested. Such power, it is said, cannot be shared between two or more persons. It is not denied that the single supreme body may be composite, as the English parliament is. But it is alleged that whenever there are in this way two or more bodies of persons in whom sovereign power is vested, they necessarily possess it as joint tenants of the whole and cannot possess it as tenants in severalty of different parts. The whole sovereignty may be in A or the whole of it in B, or the whole of it in A and B jointly, but it is impossible that part of it should be in A and the residue in B. We may test this doctrine by applying it to the British constitution. We shall find that this constitution in no way conforms to the principles of Hobbes on this point, but it is on the contrary a clear instance of divided sovereignty. The legislative sovereignty resides in the Crown and the Two Houses of Parliament, but the executive sovereignty resides in the Crown by itself, the Houses of Parliament having no share in it. It will be understood that we are here dealing exclusively with the law or legal theory of the constitution. The practice is doubtless different. For in practice the House of Commons has obtained complete control over the executive government. In practice the ministers are the servants of the legislature and responsible to it. In law they are the servants of the Crown, through whom the Crown exercises that sovereign executive power which is vested in it by law independently of the legislature altogether. In law then the executive power of the Crown is sovereign, being absolute and uncontrolled within its own sphere. The sphere is not indeed unlimited. There are many things which the Crown cannot do. It cannot pass laws or impose taxes, but what it can do it does with sovereign power. By no other authority in the state can its powers be limited or the exercise of them controlled or the operation of them annulled. It may be objected by the advocates of the theory in question that the executive is under the control of the legislature and that the sum total of sovereign power is therefore vested in the latter and is not divided between it and the executive. The reply is that the Crown is not merely itself a part of the legislature, but a part without whose consent the legislature cannot exercise any fragment of its own power. No law passed by the two Houses of Parliament is operative unless the Crown consents to it. How then can the legislature control the executive? Can a man be subject to himself? A power over a person, which cannot be exercised without that person's consent, is no power over him at all. A person is subordinate to a body of which he is himself a member, only if that body has power to act notwithstanding his dissent. A dissenting minority, for example, may be subordinate to the whole assembly. But this is not the position of the Crown. The English Constitution therefore recognizes a sovereign executive no less than a sovereign legislature, each is supreme within its own sphere, and the two authorities are kept from conflict by the fact that the executive is one member of the composite legislature. The supreme legislative power is possessed jointly by the Crown and the two Houses of Parliament, but the supreme executive power is held in severality by the Crown. When there is no Parliament, that is to say, in the interval between the dissolution of one Parliament and the election of another, the supreme legislative power is non-existent, but the supreme executive power is retained unimpaired by the Crown. This is not all, however, for, until the passing of the Parliament Act 1911, the British Constitution recognized a supreme judicature as well as a supreme legislature and executive. The House of Lords in its judicial capacity as a court of final appeal was sovereign. Its judgments were subject to no further appeal, and its acts were subject to no control. What it declared for law no other authority known to the Constitution could dispute. Without its own consent, its judicial powers could not be impaired or controlled, nor could their operation be annulled. The consent of this sovereign judicature was no less essential to legislation than was the consent of the sovereign executive. The House of Lords, therefore, held in severality the supreme judicial power, while it shared the supreme legislative power with the Crown and the House of Commons. 3. Illimitable Sovereignty Sovereign power is declared by the theory in question to be not merely essential and indivisible, but also illimitable. Not only is it uncontrolled within its own province, but that province is infinite in extent. 4. It appeared plainly to my understanding, says Hobbes, both from reason and scripture, that the sovereign power, whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocratical commonwealths, is as great as possibly men can be imagined to make it, and whosoever, thinking sovereign power too great will seek to make it less, must subject himself to the power that can limit it, that is to say, to a greater. End quote. So Austin, quote, it follows from the essential difference of a positive law and from the nature of sovereignty, an independent political society, that the power of a monarch, properly so-called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation. Supreme power limited by positive law is a flat contradiction in terms, end quote. This argument confounds the limitation of power with the subordination of it, that sovereignty cannot, within its own sphere, be subject to any control, is self-evident, for it follows from the very definition of this species of power. But that this sphere is necessarily universal, is a totally different proposition, and one which cannot be supported. It does not follow that if a man is free from the constraint of any one stronger than himself, his physical power is therefore infinite. When considering this matter, we must distinguish between power in fact and power in law. For here as elsewhere, that which is true in law may not be true in fact and vice versa. A de facto limitation of sovereign power may not be also a de jure limitation of it, and conversely, the legal theory of the constitution may recognize limitations which are nonexistent in fact. What sovereign power may be, and indeed necessarily is, limited de facto is sufficiently clear. Great as is the power of the government of a modern and civilized state, there are many things which it not merely ought not to do, but cannot do. They are in the strictest sense of the term beyond its de facto competence. For the power of a sovereign depends on and is measured by two things. First the physical force which he has in his command, and which is the essential instrument of his government, and second the disposition of the members of the body politic to submit to the exercise of this force against themselves. Neither of these two things is unlimited in extent, therefore the de facto sovereignty which is based upon them is not unlimited either. This is clearly recognized by Bentham. In this mode of limitation he says, quote, I see not what there is that needs surprise us, by what is it that any degree of power, meaning political power, is established. It is neither more nor less than the habit of and a disposition to obedience. This disposition it is as easy, or I am much mistaken, to conceive as being absent with regard to one sort of acts as present with regard to another. For a body then, which is in other respects supreme, to be conceived as being with respect to a certain sort of acts limited, all that is necessary is that this sort of acts be in its description distinguishable from every other. These bounds the supreme body in question has marked out to its authority. Of such a demarcation then what is the effect? Whether none at all, or this, that the disposition to obedience confines itself within these bounds. Beyond them the disposition is stopped from extending. Beyond them the subject is no more prepared to obey the governing body of his own state than that of any other. What difficulty, I say, should there be in conceiving a state of things to subsist, in which the supreme authority is thus limited? What greater difficulty in conceiving it with this limitation than without any I cannot see? The two states are, I must confess, to me alike conceivable. Whether alike expedient, alike conducive to the happiness of the people, is another question. The follower of Hobbes may admit the de facto but deny the de jure limitation of sovereign power. He may contend that even if there are many things which the sovereign has no power to do in fact, there is and can be nothing whatever which he has no power to do in law. The law, he may say, can recognize no limitations in that sovereign power from which the law itself proceeds. In reply to this it is to be observed that the law is merely the theory of things as received and operative within courts of justice. It is the reflection and image of the outer world seen and accepted as authentic by the tribunals of the state. This being so, whatever is possible in fact is possible in law and more also. Whatsoever limitations of sovereign power may exist in fact may be reflected in and recognized by the law. To allow that the de facto limitations are possible is to allow the possibility of corresponding limitations de jure. If the courts of justice habitually act upon the principle that certain functions or forms of activity do not, according to the constitution, pertain to any organ in the body politic, and therefore lie outside the scope of sovereign power as recognized by the constitution, then that principle is by virtue of its judicial application a true principle of law, and sovereign power is limited in law no less than in fact. The contrary view is based on that unduly narrow view of the nature of law which identifies it with the command of the sovereign issued to his subjects. In this view law and legal obligation are co-extensive, and the legal limitation of supreme power appears to involve the subjection of the possessor of it to legal obligations in respect to the exercise of it. This of course conflicts with the very definition of sovereign power and is clearly impossible. That sovereign power may be legally controlled within its own province is a self-contradictory proposition, that its province may have legally appointed bounds is a distinct and valid principle. There is one application of the doctrine of illimitable sovereignty which is of sufficient importance and interest to deserve special notice. Among the chief functions of sovereign power is legislation. It follows from the theory in question that in every political society there necessarily exists some single authority possessed of unlimited legislative power. This power is indeed alleged to be the infallible test of sovereignty. In seeking for that sovereign who, according to the doctrine of Hobbes, is to be found somewhere in every body politic, all that is necessary is to discover the person who possesses the power of making and repealing all laws without exception. He and he alone is the sovereign of the state, for he necessarily has power over all and in all and is subject to none. As to this it is to be observed that the extent of legislative power depends on and is measured by the recognition accorded to it by the tribunals of the state. Any enactment which the law courts decline to recognize and apply is by that very fact not law, and lies beyond the legal competence of the body whose enactment it is. And this is so whether the enactment proceeds from a bureau council or from the supreme legislature. As the law of England actually stands there are no legal limitations on the legislative power of the imperial parliament. No statute passed by it can be rejected as ultra-re-race by any court of law. This legal rule of legislative omnipotence may be wise or it may not, but it is difficult to see by what process of reasoning the jurist can demonstrate that it is theoretically necessary. At no very remote period it was considered to be the law of England that a statute made by parliament was void if contrary to reason and the law of God. The rule has now been abandoned by the courts, but it seems sufficiently obvious that its recognition involves no theoretical absurdity or impossibility, however inexpedient it may be. Yet it clearly involves the limitation of the power of the legislature by a rule of law. To take another example, the most striking illustration of the legislative omnipotence of the English parliament is its admitted power of extending the term for which an existing House of Commons has been elected. Courts appointed by the people for a fixed time have the legal power of extending the period of their own delegated authority. It is difficult to see any theoretical objection to a rule of the opposite import. Why should not the courts of law recognize and apply the principle that an existing parliament is sovereign only during the limited time for which it was originally appointed and is destitute of any power of extending that time? And in such a case, would not the authority of the Supreme Legislature be limited by a rule of law? The exercise of legislative power is admittedly subject to legal conditions. Why not then to legal limitations? If the law can regulate the manner of the exercise of legislative power, why not also its matter? As the law stands, parliament may repeal a statute in the same session and in the same manner in which it was passed. What then would be the effect of a statute providing that no statute should be repealed saved by an absolute majority in both houses? Would it not create good law, and so prevent either itself or any other statute from being repealed save in manner so provided? What if it is provided further that no statute shall be repealed until after ten years from the date of its enactment? Is such a statutory provision void? And if valid, will it not be applied by the law courts so that any attempt to repeal either it or any other statute less than ten years old will be disregarded as beyond the competence of parliament? And if a statute can be made unrepealable for ten years, how is it legally impossible that it should be made unrepealable forever? Such a rule may be very unwise, but by what argument are we to prove that it involves a logical absurdity? In respect of its legislative omnipotence, the English parliament is almost unique in modern times. Most modern constitutions impose more or less stringent limitations upon the powers of the legislature. In the United States of America, neither Congress nor any state legislature possesses unrestricted powers. They cannot alter the constitutions by which they have been established, and those constitutions expressly withdraw certain matters from their jurisdiction. Where then is the sovereignty vested? The reply made is that these constitutions contain provisions for their alteration by some other authority than the ordinary legislature, and that the missing legislative power is therefore to be found in that body to which the right of altering the constitution has been thus entrusted. In the United States, the sovereignty, it is said, is vested not in Congress, but in a majority of three-fourths of the state legislatures. This composite body has absolute power to alter the constitution, and is therefore unbound by any of the provisions of it, and is so possessed of unlimited legislative power. Now, whenever the constitution has thus entrusted absolute powers of amendment to some authority other than the ordinary legislature, this is a perfectly valid reply. But what shall we say of a constitution which, while it prohibits alteration by the ordinary legislature, provides no other method of affecting constitutional amendments? There is no logical impossibility in such a constitution, yet it would be clearly unalterable in law. That it would be amended in defiance of the law cannot be doubted, for a constitution which will not bend will sooner or later break. But all questions as to civil and supreme power are questions as to what is possible within, not without, the limitations of the constitution. If there is no constitution which meets with true observance, there is no body politic, and the theory of political government is deprived of any subject matter to which it can apply. The necessary datum of all problems relating to sovereignty is the existence and observance of a definite scheme of organized structure and operation, and it is with this datum and presupposition that we must discuss the question of the extent of legislative power. Even where a constitution is not wholly, it may be partly unchangeable in law. Certain portions of it may, on their original establishment, be declared permanent and fundamental beyond the reach even of the authority to which, in other respects, the amendment of the constitution is entrusted. Article V of the Constitution of the United States of America provides that no state shall be deprived of its equal suffrage in the Senate without its own consent. Having regard to this provision, what body is there in the United States which has vested in it unlimited legislative power? The same article provides that certain portions of the Constitution shall be unalterable until the year 1808. That became of sovereign power in the meantime. End of Section 36. Section 37 of Joris Prudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Mike Overby, who does not speak Latin. Joris Prudence by John Salmond. Appendix 3. The Maxims of the Law. Legal maxims are the proverbs of the law. They have the same merits and defects as other proverbs, being brief in pithy statements of partial truths. They express general principles without the necessary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. False and misleading, when literally read, these established formulae provide useful means for the expression of leading doctrines of the law in a form which is at the same time brief and intelligible. They constitute a species of legal shorthand, useful to the lawyer, but dangerous to anyone else, for they can be read only in the light of expert knowledge of that law, of which they are the elliptical expression. The language of legal maxims is almost invariably Latin, for they are commonly derived from the civil law, either literally or by adaptation, and most of those which are not to be found in the Roman sources are the invention of medieval jurists. The following is a list of the more familiar and important of them, together with brief comments and references. 1. Actus non facit reum nici men citrea, legis henrici primi. The act alone does not make the doer of it guilty, unless it is done with a guilty mind. Material without formal wrongdoing is not a ground of liability. The presence either of wrongful intent or of culpable negligence is a necessary condition of responsibility. C. 1. 27. 132. 145. 2. Adversis extraneous vidiosa possessio prondes solet. Prior possession is a good title of ownership against all who cannot show a better. In the civil law, however, from which this maxim is derived, it has a more special application and relates to the conditions of possessory remedies. C. 1. 3. Apices juris non sunt jurah. Legal principles must not be carried to their most extreme consequences, regardless of equity and good sense. A principle valid within certain limits becomes false when applied beyond these limits. The law must avoid the falsehood of extremes. C. 10. 4. 6. In the application of this maxim, we must distinguish between common and statute law. 1. Common law. A legal principle must be read in the light of the reason for which it was established. It must not be carried further than the reason warrants. And if the ratio legis, holy fails, the law will fail also. 2. Statute law. To statute law, the maxim has only a limited application, for such law depends upon the authority of the literal legis. It is only when the letter of the law is imperfect, that recourse may be had to the reason of it, as a guide to its due interpretation. The maxim in question, therefore, is valid only as a rule of restricted interpretation. The complementary rule of extensive interpretation is, ubi idem ratio ibi idem yus. 5. Conchitasionis poenam nemo patitur. The thoughts and intents of men are not punishable. The law takes notice only of the overt and external act. In exceptional cases, however, the opposite maxim is acceptable. Altunus reputator profacto. The law takes the will for the deed. C. 137. 6. Communus error facit eu. A precedent, even though erroneous, will make valid law, if its authority has been so widely accepted and relied on, that its reversal has become inexpedient in the interests of justice. C. 155. 8. De minimis non curat lex. The law takes no account of trifles. This is a maxim which relates to the ideal, rather than to the actual law. The tendency to attribute undue importance to mere matters of form, the failure to distinguish adequately between the material and the immaterial, is a characteristic defect of legal systems. C. 109. Ex nudo pacto non oritor actio. In English law, this maxim expresses the necessity of legal consideration for the validity of a contract. Nudum pactum is pactum sin causa prometendi. In the civil law, however, the maxim means, on the contrary, that an agreement to become binding, must fall within one of the recognized classes of legally valid contracts. There was no general principle that an agreement, as such, had the force of law. C. 124. 10. Ex turpi causa non oritor actio. An agreement contrary to law or morals, can give rise to no right of action in any party to it, either for the enforcement of it, or for the recovery of property parted with in pursuance of it. Confer the maxim in pari delicto porior est conditio defendentis. C. 124. 11. Ignorantia facti excusat ignorantia youris non excusat. C. 146. 147. 12. Impossibilium nulla obligatio est. Otherwise, lex non congit ad impossibilia. Impossibility is an excuse for the non-performance of an obligation, a rule of limited application. 13. In yure non remota causa set proxima spectator. A man is not liable for all the consequences of its acts, but only for those which are natural improbable, that is to say, those which he foresaw or ought to have foreseen. 14. In pari causa, porior est conditio posidentis. Possession and ownership, fact and right, enjoyment and title, are presumed by the law to be coincident. Every man may therefore keep what he has got, until and unless someone else can prove that he himself has a better title to it. C. 107. 15. In pari dalicto, porior est conditio defendentis. Identical in effect with the maxim, ex turpi causa non oritor actio. 16. Inter arma leges silent. This maxim has a double application. 1. As between the state and its external enemies, the laws are absolutely silent. No alienemy has any claim to the protection of the laws or of the courts of justice. He is to attitude of any legal standing before the law and the government may do as it pleases with him and his. 2. Even as regards to the rights of subjects and citizens, the law may be put to silence by necessity in times of civil disturbance. Necessitas non habit legem. Extra judicial force may lawfully supersede the ordinary process and course of law whenever it is needed for the protection of the state and the public order against illegal violence. C. 36. 17. In vita beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons, or disclaims a right will lose it. C. 122. 18. Yuris precepta suntis. Huniste vivere alterun non laideere suntic tribure. These are the precepts of the law, to live honestly, to hurt no one, and to give every man his own. Attempts have been sometimes made to exhibit these three precepta yuris as based on a logical division between the sphere of legal obligation into three parts. This, however, is not the case. They are simply different modes of expressing the same thing, and each of them is wide enough to cover the whole field of legal duty. The third of them, indeed, is simply a variant of the received definition of justice itself. Giusticia est constans et perpetua voluntus usum sic tribuendi. 19. Yus pubicum privatorum pactis mutari non protest. By Yus pubicum, it means that portion of the law in which the public interests are concerned, and which, therefore, is of absolute authority and not liable to be superseded by conventional law made by the agreement of private persons. Confer the maxim, modus et conventio vin kunt legem. C. 124. 20. Modus et conventio vin kunt legem. The common law may, in great measure, be excluded by conventional law. Agreement is a source of law between the parties to it. C. 11. 122. 21. Necessitas non habet legem. Confer bacon's maxims of the law, five. Necessitas indusit privilegium, a recognition of the Yus necessitatis. C. 139. 22. Neminem oportet legibus essen sapientiorum. It is not permitted to be wiser than the laws. In the words of Habs, C. Leviathan, Chapter 29, the law is the public conscience, and every citizen owes to it an undivided allegiance, not to be limited by any private views of justice or expediency. C. 9. 23. Nemo plus yuris ad alium transfere potest quam ipsae habaret. The title of an assignee can be no better than that of his assigneur. Confer the maxim, Nemo dat qui non habet. C. 163. 24. Nemo tenatur se ipsum accusare. The law compels no man to be his own accuser or to give any testimony against himself, a principle now limited to the criminal law. C. 175. 25. Nemo dat qui non habet. No man can give a better title than that which he himself has. C. 163. 26. Non omne quod li chet honestum est. All things that are lawful are not honorable. The law is constrained by the necessary imperfections of its methods to confer many rights and allow many liberties which a just and honorable man will not claim or exercise. 27. Nonless vidatur do lo far sere qui suo ju yur utitur. A malicious or improper motive cannot make wrongful in law an act which would be rightful apart from such motive. The rule, however, is subject to important limitations. C. 136. 28. Qui facit per allium facit per se. He who does a thing by the instrumentality of another is considered as if he had acted in his own person. 29. Qui prior est tempore porior est yure. Where two rights or titles conflict, the earlier prevails unless there is some special reason for preferring a latter. C. 85. 30. Qui fier non debet factum valet. The thing which ought not to have been done may nevertheless be perfectly valid when it is done. The penalty of nullity is not invariably imposed upon illegal acts. For example, a marriage may be irregularly celebrated and yet valid, and a precedent may be contrary to established law and yet authoritative for the future. C. 66. 31. Rez yurikara pro veritate accipitor. A judicial decision is conclusive evidence inter partes of the matter decided. C. 67. 32. Respondeat superior. Every master must answer for the defaults of his servant as for his own. C. 149. 33. Cic utere tuo ut alienum non laidas. Every man must so use his own property as to not harm that of another. This is the necessary qualification of the maxim that every man may do as he will with his own. C. 154. 34. Sumum yu suma injuria. The rigor of the law, untempered by equity, is not justice, but the denial of it. C. 1013. 35. Supraficies solo sedit. Whatever is attached to the land forms part of it. Confer omne quod inai edificator solo sedit. C. 155. 36. Ubi ierum ratio ibi idem yu. This is the complement of the maxim, sessante rationi legis sessat lex ipsa. A rule of the common law should be extended to all cases in which the same ratio applies, and in the case of imperfect statute law, extensive interpretation based on the ratio legis is permissible. 37. Ubi yu ibi remedium. Wherever there is a right, there should also be an action for its enforcement. That is to say, the substantive law should determine the scope of the law of procedure, and not vice versa. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights, which the substantive law sees fit to recognize. In early systems, this is far from being the case. We there find remedies and forms of actions determining rights, rather than rights determining remedies. The maxim of primitive law is rather Ubi remedium ibi yu. 38. Vigilantibus non dormientibus yura subveniunt. The law is provided for those who wake, not for those who slumber and sleep. He who neglects his rights will lose them. It is on this principle that the law of prescription is founded. See section 162. 39. Volenti non fit in yuria. No man who consents to a thing will be suffered thereafter to complain of it as an injury. He cannot waive his right and then complain of its infringement. End of section 37. Section 38 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Appendix 4. The Divisions of the Law. English law possesses no received and authentic scheme of orderly arrangement. Exponents of this system have commonly shown themselves too little careful of appropriate division and classification, and too tolerant of chaos. Yet we must guard ourselves against the opposite extreme, for theoretical jurists have sometimes fallen into the contrary error of attaching undue importance to the element of form. They have esteemed too highly both the possibility and the utility of ordering the world of law in accordance with the strictest principles of logical development. It has been said by a philosopher concerning human institutions in general, and therefore concerning the law and its arrangement, that they exist for the uses of mankind and not in order that the angels in heaven may delight themselves with the view of their perfections. In the classification of legal principles, the requirements of practical convenience must prevail over those of abstract theory. The claims of logic must give way in great measure to those of established nomenclature and familiar usage, and the accidents of historical development must often be suffered to withstand the rules of scientific order. Among the various points of view of which most branches of the law admit, there are few, if any, which may be wisely adopted throughout their whole extent, and among the various alternative principles of classification, expedience allows of no rigidly exclusive and consistent choice. There are few distinctions, however important in their leading applications, which may not rightly, as they fade towards the boundary line, be replaced by others which there possess a deeper significance. We may rest content therefore, if, within the limits imposed by the needful conformity to received speech and usage, each portion of the law is dealt with in such of its aspects as best reveals its most important characters and relations, and in such order as is most convenient with lucid and concise exposition. 1. The Introductory Portion of the Law The first portion of the Corpus Juris is of an introductory nature consisting of all those rules which by virtue of their preliminary character or of the generality of their application cannot be appropriately relegated to any special department. This introduction may be divided into four parts. The first of them is concerned with the sources of law. It comprises all those rules in accordance with which new law obtains recognition, and the older law is modified or abrogated. It is here, for example, that we must look for the legal doctrine as to the operation of precedent, custom, and legislation. The second part of the introduction deals with the interpretation of law. Here we shall find the rules in accordance with which the language of the law is to be construed, and also the definition of those terms which are fitly dealt with here because common to several departments of the law. In the third place, the introduction comprises the principles of private international law, the principles that is to say, which determine the occasional exclusion of English law from English courts of justice, and the recognition and enforcement therein of some foreign system which possess for some reason a better claim to govern the case in hand. Fourthly and lastly, it is necessary to treat as introductory a number of miscellaneous rules which are of so general an application as not to be appropriately dealt with in any special department of the legal system. Two, private and public law. After the introduction comes the body of private law as opposed to that of public law. By general consent, this Roman distinction between juice privatum and juice publicum is accepted as the most fundamental division of the Corpus Juris. Public law comprises the rules which specially relate to the structure, powers, rights, and activities of the state. Private law includes all the residue of legal principles. It comprises all those rules which specially concern the subjects of the state in their relations to each other, together with those rules which are common to the state and its subjects. In many of its actions and relations, the state stands on the same level as its subjects and submits itself to the ordinary principles of private law. It owns land and chattels, makes contracts, employs agents and servants, and enters into various forms of commercial undertaking, and in respect to all these matters, it differs little in its juridical position from its own subjects. Public law, therefore, is not the whole of the law that is applicable to the state and to its relations with its subjects, but only those parts of it which are different from the private law concerning the subjects of the state and their relations to each other. For this reason, private law precedes public in the order of exposition. The latter presupposes a knowledge of the former. The two divisions of public law are constitutional and administrative law. It is impossible, however, to draw any rigid line between these two, for they differ merely in the degree of importance pertaining to their subject matters. Constitutional law deals with the structure, powers, and functions of the supreme power in the state, together with those of all the more important of the subordinate departments of government. Administrative law, on the other hand, is concerned with the multitudinous forms and instruments in and through which the lower ranges of governmental activity manifest themselves. 3. Civil and Criminal Law Within the domain of private law, the division which calls for primary recognition is that between civil and criminal law. Civil law is that which is concerned with the enforcement of rights, while criminal law is concerned with the punishment of wrongs. We have examined and rejected the opinion that crimes are essentially offenses against the state or the community at large, while civil wrongs are committed against private persons. According to the acceptance or rejection of this opinion, criminal law pertains either to public or to private law. Our classification of it as private is unaffected by the fact that certain crimes, such as treason and sedition, are offenses against the state. As already explained, logical consistency in the division of the law is attainable only if we are prepared to disregard the requirements of practical convenience. Greater weight is wisely attributed to the fact that treason and robbery are both crimes, than to the fact that the one is an offense against the state and the other an offense against an individual. Just as the law which is common to both state and subject is considered under the head of private law alone, so the law which is common to crimes and to civil injuries is dealt with under the head of civil law alone. It is obvious that there is a great body of legal principles common to the two departments. The law as to theft involves the whole law as to the acquisition of property and chattels, and the law of bigamy involves a considerable portion of the law of marriage. The arrangement sanctioned by usage and convenience is therefore to expound first the civil law in its entirety, and thereafter, under the title of criminal law, such portions of the law of crime as are not already comprehended in the former department. 4. Substantive Law and the Law of Procedure Civil and criminal law are each divisible into two branches, namely Substantive Law and the Law of Procedure, a distinction the nature of which has already been sufficiently considered. 5. Divisions of the Substantive Civil Law The Substantive Civil Law may be conveniently divided by reference to the nature of the rights with which it is concerned into three great branches, namely the law of property, the law of obligations, and the law of status. The first deals with proprietary rights in REM, the second with proprietary rights in personum, and the third with personal as opposed to proprietary rights. 6. The Law of Property Although the distinction between the law of property and that of obligations is a fundamental one, which might be recognized in any orderly scheme of classification, there is a great part of the substantive civil law which is common to both of these branches of it. Thus, the law of inheritance or succession concerns all kinds of proprietary rights, whether in REM or in personum. So also with the law of trusts and that of securities. In general, the most convenient method of dealing with these common elements is to consider them once for all in the law of property, thus confining the law of obligations to those rules which are peculiar to obligations, just as the elements common to civil and criminal law are dealt with in the civil law and those common to private and public law in private law. The law of property is divisible into the following chief branches. One, the law of corporeal property, namely the ownership of land and chattels. Two, the law of immaterial objects of property, such as patents, trademarks, and copyrights. Three, the law of encumbrances, or a juror en re aliena, such as tendencies, servitudes, trusts, and securities. Four, the law of testamentary and intestate succession. Seven, the law of obligations. The law of obligations comprises the law of contracts, the law of torts, and the law of those miscellaneous obligations which are neither contractual nor delictal. It may be convenient to consider under the same head, the law of insolvency, in as much as the essential significance of insolvency is to be found in its operation as a method of discharging debts and liabilities. Alternatively, however, this branch of law may be included in the law of property in as much as it deals with one mode of divesting property rights in general. In the law of obligations is also to be classed the law of companies, this being essentially a development of the law of the contract of partnership. Under the head of companies are to be comprised all forms of contractual incorporation, all other bodies corporate pertaining either to public law or to special departments of private law with which they are exclusively concerned. The general doctrine as to the corporations is to be found in the introductory department of the law. Eight, the law of status. The law of status is divisible into two branches dealing respectively with domestic and extra domestic status. The first of these is the law of family relations and deals with the nature acquisition and loss of all those personal rights, duties, liabilities and disabilities which are involved in domestic relationship. It falls into three divisions concerned respectively with marriage, parentage and guardianship. The second branch of the law of status is concerned with all the personal rights, duties, liabilities and disabilities which are external to the law of the family. It deals for example with the personal status of minors in relation to others than their parents, of married women in relation to others than their husbands and children, of lunatics, aliens, convicts and any other classes of persons whose personal condition is sufficiently characteristic to call for separate consideration. There is one class of personal rights which ought in logical strictness to be dealt with in the law of status but is commonly and more conveniently considered elsewhere. Those rights namely which are called natural because they belong to all men from their birth instead of being subsequently acquired. For example, the rights of life, liberty, reputation and freedom from bodily harm. These are personal rights and not proprietary. They constitute part of a man's status, not part of his estate. Yet we seldom find them set forth in the law of status. The reason is that such rights, being natural and not acquired, call for no consideration except in respect to their violation. They are adequately dealt with therefore under the head of civil and criminal wrongs. The exposition of the law of libel, for example, which is contained in the law of torts, involves already the proposition that a man has a right to his reputation, and there is no occasion therefore for a bold statement to that effect in the later law of status. Summary The divisions of the law. One, introduction. A, sources of the law. B, interpretation and definitions. C, private international law. D, miscellaneous introductory principles. Two, private law. The two divisions, civil law, criminal law. Under criminal law, substantive procedure. Under substantive, general part, special part. Under civil law, substantive and procedure. Under procedure, practice, evidence. Under substantive, property, obligations, status. Under property, one, corporeal property, which divides into land and chattels. Two, immaterial property, which divides into patents, trademarks, etc. Three, encumbrances, which divides into leases, servitudes, trusts, securities, etc. Four, succession, which divides into testamentary and intestate. Under obligations, one, contracts, which divides into general part and special part. Two, torts, which divides into general part and special part. Three, miscellaneous obligations. Four, insolvency. Five, companies. Under status, one, domestic status and extra-domestic status. Domestic status, which divides into marriage, parentage, guardianship. Extra-domestic status, which divides into infants, married women, lunatics, aliens, convicts, etc. Three, public law, which divides into constitutional law, administrative law. End of Section 38. End of Juris Prudence by John Salmond.