Page:The Green Bag (1889–1914), Volume 22.pdf/597

 The Classiﬁcation of Law passed from the-sphere of positive law. . . . Constitutional law cannot be enforced against the sovereign body by any but moral sanc tions.” Whereas, then, the law of Persons that belongs to private law is just as much

567

Constitution of England had become a real law.”

After commending Hale and Black

functionaries who exercise a DELEGATED

stone for rejecting the division of the law into Public and Private, and in classing political with other conditions,

power fall under a positive law of Persons, the

Austin says :—

positive law as the law of Things, and political

absolute sovereign is not invested with legal status. When it approaches the limitations of the sovereign Constitutional law changes its character, it ceases to be positive law, and becomes a law of opinion; or, in other words, public law so far as it relates to the sovereign, is not properly law, but only a collection of ethical maxims.“

Puchta expresses the idea which prevails generally among continental

Accordingly, Sir William Blackstone, follow ing Sir Matthew Hale, has 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. Blackstone divides what he calls “law regarding the relative rights of persons" into "law regarding public re lationsH and "law regarding private relations."

jurists as to the nature of Public Con stitutional Law.

Under the ﬁrst of these he places constitu tional law and the powers, rights and duties of subordinate magistrates, clergy and of persons employed by land or sea.“J

The peculiarity (he says) of a monarchy is that the Prince himself exercises the sovereign power in his own name; and it is

English

implied that he possesses this authority as a right which belongs to him."

We may now readily understand how Bacon, with his notions as to sovereignty, would naturally speak of Public Law, and why Hale and Blackstone, with a different conception, should ignore it. Bacon says :—-—— I shall hardly consent that the King shall be called only our rightful sovereign, or our lawful sovereign, but our natural liege sover

eign."

Blackstone says that Queen Elizabeth made no scruple to direct her Parlia

ments to abstain from discussing matters of state, and that at the time of Eliza— beth and James the subject of sov ereignty was ranked among the arcana imperii and, like the mysteries of the

Mr. Terry, the learned Professor of

Law at the

University of

Tokio, whose article on “Arrangement of Law" appeared in the last number

of the Green Bag, says :— Mr. Austin has clearly shown the difficulty of drawing a distinction between the two kinds of law sufﬁciently accurate for scientiﬁc purposes though it is occasionally convenient to use the words Public and Private Law in a rough. popular sense and that the Public Law, so-called, is really a portion of the Law of Persons. Thus the law regulating the

powers and duties of public officers which is always reckoned a part of Public Law, obviously belongs to the Law of Persons; so do the laws of citizenship, the right of suﬂrage. public health, taxation, etc. These all have effect only of creating duties and rights for particular classes of persons.“

Professor Markby, who ﬁnds fault with both the classiﬁcations “Public and Private” and “Persons, Things and

bona Dea, were not even to be pried into by any but such as were initiated into its service. By Blackstone's time the

Actions," says:—

“Of course this does not apply to the United States. "Poste's Gaius. p. 42. '7 Hastie's Translations. p. 83. "Argument on Post Nati of Scotland.

of law in which the attention is mainly

All I understand to be meant by this passage (referring to jus publicum and jus privatum) is this: Public Law is that portion

"Am. Bar Assn. Rep.. vol. 25, p. 461. ‘n Austin's Jun, vol. 2. p. 776-7. "Terry's First Principles, 583.