Page:Harvard Law Review Volume 8.djvu/211

195 DIVISIONS OF LAW. 195 adopt the view, which has already been rejected,^ that the State is wholly above law and legal justice, and neither duties nor n'o-hts can properly be ascribed to it. Many valuable things, both immovable and movable, are held and employed for the public service, — palaces, museums, public offices, fortifications, ships of war, and others ; in some countries railways and all the various furniture and appurtenances of these. Whether they are held in the name of the State itself, or of the Head of the State, or of individual officers of the State or persons acting by their direction, is a matter of detail which must depend on the laws and usages of every State, and may be determined by highly technical reasons. In substance the State is and must be, in every civilized community, a great owner of almost every kind of object. Now the rights attaching to the State in this respect, or to the nominal owners who hold on the State's behalf, need not differ from those of any private owner, and in English-speaking countries they do not. They can be and are dealt with by the ordinary courts in the same way as the rights of any citizen, and according to the ordinary rules of the law of property for the preservation and management of the kind of property which may be in question. Again, many persons have to be employed, and agree- ments to be made with them ; and these transactions are judged, so far as necessary, by the ordinary rules of the law of con- tract. Now the rules mentioned not only belong to private law, but are at its centre ; they are the most obvious examples of what private law includes. It would be strange to say that they become rules of public law because the property and under- takings in question are public. The true view seems to be that the State, as an owner and otherwise, can make use of the rules of private law, and become as it were a citizen for the nonce, though ultimately for public purposes. Sometimes the Law of Nations is brought under the head of Public Law ; this is plausible according to the test of the State being a party, which, however, we have not accepted. It is enough to say here that the duties of independent States to one another, whatever may be the extent of their analogy to legal duties, are not legal duties or the subject of legal rules in the sense now under consideration. On the other hand, there is in modern law a body of principles and rules by which the courts are guided in deciding, ^ In an earlier chapter of the work in preparation of which this is a part. 27