Page:Harvard Law Review Volume 8.djvu/209

193 DIVISIONS OF LAW. 1 93 have regard in the first instance to the protection and interests of the commonwealth, others to those of its individual members. In the former case the public interest is immediate ; it can be directly represented by the proper officers of the State, and vindicated by them in the name of the State, or of its titular head: in the latter the interest of the individuals whose rights are affected comes in the first line; it is protected by the law, but the parties interested are left to set the law in motion. Rules of pri- vate law may be said to have remained in a stage where all rules of law probably were in remote times: that is to say, the State provides judgment and justice, but only on the request and action of the individual citizen; those who desire judgment must come and ask for it. Accordingly, the special field of such rules is that part of human affairs in which individual interests predominate and are likely to be asserted on the whole with sufficient vigor, and moreover no public harm is an obvious or necessary conse- quence of parties not caring to assert their rights in particular cases. In the law of contract and its various commercial develop- ments these conditions are most fully satisfied ; though even here considerations of " public policy," to use the accustomed English term, are by no means absent. In the law of family relations and of property motives of legitimate private interest have a consider- able part, but they are not so uniformly operative that they can be treated as adequately guarding the interest of the common- wealth. Hence, we find that theft and certain other forms of misappropriation and fraud, and even certain kinds of breach of contract, are punishable as public offences. The general security of property has to be considered as well as the chances of restitu- tion in each case, which often are so slender that the person robbed or defrauded has no sufficient motive of self-interest for vindicating the law. When we come to bodily safety, public interest balances, or in some cases even outweighs the private. Wrongs of violence are in all civilized legal systems dealt with as offences against the commonwealth, in addition to the rights to redress which may be conferred on the individual injured. Wrongs which are personal but not bodily — such as defamation— afford a kind of neutral ground where the rights of the State and of individuals have about equally free play in modern law. There fall more specially under rules of public law the duties and powers of different authorities in the State, making up what is usually known as the law of the Constitution ; also the special bodies