CHAPTER IV.

PRIMARY CLASSIFICATION OF SUBJECTS.

§ 43. Nature and uses of classification. The questions are sometimes asked-What is the use of studying classification? And what do we care how Gaius or Hale or Blackstone classified the law? The practical results to be derived from even such a brief review as is here presented are:

First a familiarity with legal processes of thought, and the reason why the law is as it is.

Second a clearer conception of the meaning of the words which must be often used throughout the book. Third the acquisition of a well arranged mental storehouse wherein all the knowledge acquired naturally and easily takes its place. Thus the mere learning is made more easy and the matter of retaining becomes not mere memory, but to a degree reason-because the student knowing the reason can much more easily retain or reproduce the idea in his own words.

In the process of separating the corpus juris of the United States into different subjects, each of which may in turn be examined minutely, we necessarily avail ourselves of what is called legal analysis.

Legal analysis explained. Analysis, applied to law and used in reference to a tangible result attained, has

a meaning peculiar to itself; e. g., when we speak of Hale's analysis or Blackstone's analysis, the phrase calls to mind the synoptical outline of English law, rather than the processes by which these results have been attained.

Analysis, used abstractly or applied to chemistry, naturally suggests the process of separation, or the resolution of some substance into its elements.

Legal analysis, however, involves two processes. First. Analysis in its narrower sense, i. e., the resolution of the body of the law into its separate parts according to the principles of dichotomy (1), i. e., separation according to species and genera.

The second process may be termed synthetical, and consists in arranging the matter thus differentiated by the first process in such a manner that each sub-head will be again divided, and so on until all the subjects and the mutual relation and dependence of each appears upon the surface (2).

1 See any dictionary, titles, Method, Analysis, Synthesis, Synopsis. This is the plan of Lord Comyn's celebrated Digest of English Law, which is to-day unexcelled by any subsequent work. The editor of Comyn's Digest says: "The general plan of this Digest is that the author lays down principles or positions of law, and illustrates them by instances, which he supports by authorities; and these are branched out and divided into consequential positions, or points of doctrine, illustrated and supported in the same manner. By this means, each head or title exhibits a progressive argument upon the subject, and one paragraph (and in like manner one division or subdivision, etc.) follows another in natural and successive order, till the subject is exhausted."

2 This work must be done either mentally or visibly by an actual outline. Before any subject can be thoroughly mastered the mind must see the outline. Henry St. George Tucker, in his Commentaries, says: "It is with the law as with everything else that is to be learned. It is sooner learned, and better learned, by being studied systematically.

§ 44. Classification of legal treatises. The result of such a process is the production of a synoptical outline, and in the production of legal treatises the extent to which comment, explanation and illustration is indulged in by the writer is the test to determine whether the book is an analysis, an institute, or a commentary. As an example of books of the character above mentioned, of the first class are the outlines of Hale and Blackstone, in which the writers indulge in no comment at all, or but occasionally a mere reference; as, for example, Lord Hale speaks of the classes of Men, sub-class Aliens, and adds: "Here comes in the learning of (concerning) aliens, as naturalization, denization, etc.” (3) As examples of institutes we have Gaius, Justinian, Wood's Institutes of English Law, Minor's Institutes, and that of Bouvier, unless it be said that the last two indulge in more comment than is allowable in a mere institute, and thereby become commentaries.

The best known examples of commentaries are Blackstone's and Kent's Commentaries, and the writings of Judge Story. Every extended treatise which now passes

The rudis indigestaque moles must be reduced to order by the student himself, or by somebody for him. That every person who comes to acquire a knowledge of this complicated subject should have to arrange for himself would exhibit a state of infancy in the science unworthy of our times. It would be as if the innumerable papers in a clerk's office were thrown in a common heap without order, and each suitor was compelled to hunt in the confused mass for whatever he might want, to arrange them for his own use, and then throw them back again into the same undistinguished chaos, to try the ingenuity and patience of the next adventurer. These evils were early discovered, without doubt, but they have been only recently remedied to any considerable extent." See Minor's Institutes, Preface.

3 Hale's Analysis, p. 3.

under the title of "text-books" is in reality a commentary on the particular subject, unless its order is so deficient as to make it partake more of the character of a digest.

"Institutes," says Lord Bacon (4), "ought to have two properties-the one a perspicuous and clear order of method, and the other a universal latitude or comprehension, that the students may have a little pre-notion of everything, like a model towards a great building."

A commentary must of necessity be as orderly in its treatment as either an analysis or an institute, and should the title a commentary on English law or American law be taken, then every subject should be noticed. The order should not be changed because of the bulk of the work. For example, Kent's Commentaries are said by Professor Dwight to be incomplete as commentaries on American law because they do not include within the treatment the subject of torts, criminal law and procedure (5).

§ 45. Legal analysis in American treatises. Authors, especially in recent years, have not been noted for their lucidity of arrangement, although the legal profession has exhibited a high degree and skill in the first branch of

+ Works, vol. II, p. 232.

51 Green Bag, 143. Professor Dwight did not mean that the treatment was imperfect, but that the scope was narrower than the title. To the author, the arrangement of Kent's Commentaries is its principal defect. The classification of the matter contained in Part one, by itself, under the title, "The Constitutional Jurisprudence of the United States," leads one to view the subject as a body of law isolated from the matter of the next part, which is "Municipal Law;" whereas, the whole of the book, as well as Part One, is within the title "Municipal Law." The arrangement of the book has generally been regarded as less scientific than that of Blackstone. See Am. Law Review, vol. 1, p. 182. [1866].

legal analysis. This is undoubtedly the natural result of regarding constitutional law, which is properly a part of the law of persons, as a distinct field of law. Kent's Commentaries is a striking illustration of this influence (6).

How legal subjects are classified. It is obvious that the arrangement and classification of a system of law depends upon the nature and peculiarities of the system of law under treatment, and that it is illogical to undertake to arrange one system of law in accordance with the synopsis designed to present another system, unless the two systems are entirely similar in structure, and the synopsis which presents itself is strictly correct in all its parts, and especially in its leading divisions. Most authors who have attempted to treat the whole body of American law have undertaken to cast it in the mould of the outline of English law found in Blackstone's Commentaries, without taking the pains to investigate the soundness of the reasons for his method, and without questioning whether the two systems were identical in outline. Not one American writer has stated the principle of arrangement which dominated his classification; not

6 The difficulty is to look through the formal mode of expression and artificial legislative classification and formulate a system in compli ance with the logical order of the subjects. The law of England used to be classed as common law or lex non scripta, and statute or written law, and this outward form was a hindrance to its treatment. Lord Hale perceived that the source of the law had nothing to do with the method of arrangement, as he says in the preface to the analysis: "And although the laws of England are generally distributed into the common law and statute law, I shall not distribute my analysis according to this method, but shall take in and include them both together as constituting one common bulk or matter of the laws of England.” He applied the true touchstone.