Page:The Green Bag (1889–1914), Volume 22.pdf/599

 The Classiﬁcation of Law spoken of as an advocate of the divi sion: The correlation of the parts of Public Law to one another is indeed far from being settled. It never attracted the attention of the Roman lawyers, and has been very variously. and somewhat loosely, treated by the jurists of modern-Europe. The subject is indeed one which lends itself but reluctantly to systema

tic exposition, and it is with some hesitation that we propose to consider it under the heads of -—I. Constitutional law; II. Ad ministrative Law;

III. Criminal Law;

IV.

Criminal Procedure; V. The Law of the State considered in its quasi-private personality; VI. The procedure relating to the State as so considered. The ﬁrst four of these heads contain the topics which are most properly comprised in Public Law. . . . The primary function of Constitutional Law is to ascertain the political centre of gravity of any given state. . ..

In other words,

it deﬁnes the form of government.“

Sir Frederick Pollock in an essay on the “Divisions of Law" has pointed out the fallacy of basing the division Public and Private upon the supposed idea that the public was interested in one case and private persons in the

other.

He says:—

It will be seen, therefore, that the topics of

Public and Private law are by no means mutually exclusive. On the contrary, their application overlaps with regard to a large proportion of the whole mass of acts and events capable of having legal consequences. Sometimes the distinction between Public and Private law is made to turn on the state being or not being a party to the act or pro ceeding which is being considered. Only dealings between subject and subject, it is said, form the province of Private Law. But this does not seem quite exact; unless, indeed,

we adopt the view, which has already been rejected, that the state is wholly above law and legal justice, and neither duties no?‘ rights 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 “Elements of ]ur. 320-5.

569

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 oﬁicers of the state, or persons acting by their direc tion, 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 manage ment of the kind of property which may be in question. Again, many persons have to be employed, and agreements to be made with them; and these transactions are judged, so far as necessary, by the ordinary rules of the Law of Contract. Now the rules men tioned 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 undertakings 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 ulti

mately for public purposes.“

This is the death blow to the modern attempt to invent a new reason for the division, in place of the reason which in its origin was a real reason,but which changed conditions in England and America has obliterated.

THE DIVISION “ACTIONS" There has not been entire accord among theoretical writers on the point that Actions is a separate and distinct head, though the practice of treating it as such is uniform. Both Austin and Mr. Justice Wilson in their lectures “ 8 Harvard Law Review, pp. 194.5.