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one has arranged his material in accordance with the logical principles which were used by Hale, and which Blackstone professed to follow in his Commentaries.

§ 46. The reason for and fallacy of Blackstone's primary classification. In seeking for the most appropriate classification, we must of necessity examine those methods which have been heretofore used, and ascertain, if we can, the reasons which underlie them, test the accuracy of their application, and determine their applicability to our system of laws. The importance of a logical and correct basis of primary classification cannot be overestimated (7).

Blackstone's primary division of the law of England is into Rights and Wrongs. Municipal law he defines to be a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong (8).

In book 1, on page 122, he says: "Now, as (i. e., because) municipal law is a rule of civil conduct commanding what is right and prohibiting what is wrong, it follows that the principal and primary objects of law are rights and wrongs." He then indicates that "rights" are divided into rights of persons and rights of things, and

By some philosophers, definition and division are considered as the two great nerves of science. But unless they are marked by the purest precision, the fullest comprehension, and the most chastised justness of thought, they will perplex, instead of unfolding-they will darken, instead of illustrating, what is meant to be divided or defined. A defect or inaccuracy much more an impropriety, in a definition or division, more especially of the first principle, will spread confusion, distraction, and contradictions over the remotest parts of the most extended system." 1 Wilson's Works, 52.

81 Blk. Com. 44.

"wrongs" into private wrongs and public wrongs, and then continues: "The objects of the law of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts, viz.," etc.

In book 3, page 1, after reciting his definition, he says: "From hence, therefore, it follows that the primary objects of law are the establishment of rights and the prohibition of wrongs, and this occasioned the distribution of these collections into two general heads."

By this recital two things are made perfectly obvious. First, that the principle of analysis recognized by Blackstone is that rules are to be classified according to the objects to which the rules relate; second, that he determined what these objects were by what he supposed to be a definition of municipal law.

The principal object of this examination is to show the following things:

First, That the division Rights and Wrongs is not a logical, scientific or practical division under which to treat the law.

Second, That the definition which is the basis of the classification is erroneous.

Third, That there is no necessary logical connection between the definition and the classification.

Fourth, That Blackstone did not in fact conform his treatment of the law to this division.

Fifth, That there is another and the true primary classification to which he did in the main conform, and which is the one adopted in this book.

The great importance of this is to prevent confusion or uncertainty in the very fundamentals, for as before remarked, confusion or lack of understanding here makes it impossible that clearness and complete comprehension can be had anywhere. Whereas if these few pages are acquired the rest will present an easy and in fact a pleasant task, because the student is equipped for the work.

It is just as easy for the strong man to do difficult things as it is for the weak man to do much easier ones. Equipment is the secret of all efficiency; equipment is capacity.

Blackstone's definition of municipal law examined. Blackstone's definition of municipal law has received criticism of great weight on each of its essential points (9), viz.: First. It is denied that it is a rule prescribed (10), as distinguished from consented to, or agreed upon. Second. It is denied that it is prescribed by the supreme power in a state (11). Third. It is denied that it necessarily commands what is right and prohibits what is wrong.

The definition lying as it does at the threshold, and constituting in fact the basis, of his primary division of the body of law into two general heads just mentioned, the question as to whether the definition is correct, and the

91 Cooley's Blackstone (2d and 3d eds.), 44, note; 1 Sharswood's Blackstone, 44, note, 122, note; Heron on Jurisprudence, 65; Hoffman's Legal Outline, 268; 1 Bouvier's Institute, p. 6; Walker's American Law, p. 47; Austin's Jurisprudence, vol. 1, p. 220.

10 Cooley, Blk. (4th ed.), *45, note; Dartmouth College Case, 4 Wheat. 518; Binghampton Bridge, 3 Wall. 57; 1 Wilson's Works, 75, 159 et seq.

111 Wilson's Works, 55, 65; 1 Hammond's Blk. 112.

division follows, is of vital importance. But at this point of our inquiry we are only interested in that last clause of the definition, viz., whether a law is a rule "commanding what is right and prohibiting what is wrong," and whether, as a consequence thereof, the body of the law must be divided into the two general heads, Rights and Wrongs. The other branch, locating the supreme authority in the legislative branch, will be discussed when we explain the relation of Magistrate and People.

The point of criticism applied to this branch of the definition is, that it is superfluous and conveys an erroneous idea of municipal law. Many of the criticisms will be found in notes to pages 44 and 122 of volume 1 of different editions of the Commentaries, cited above (12). Blackstone's handling of the question is in nowise clear. He seems to connect the moral obligation of natural law with the law of nations (13), binding upon nations, and being their only bond, for the reason that there is no superior.

In accordance with his idea that, to have a law binding, there must be a superior in the law of nations, he finds a superior to nations in the Deity, or the law of God; but he immediately contrasts with this, municipal

12 I know of but two modern writers who approve of this definition. The first is Prof. Bliss, in his work on Sovereignty, and the other is Prof. Hammond, in the notes to his edition of Blackstone: but the opinion of Mr. Bliss is based upon the proposition that an act of the legislature which is contrary to natural right is invalid, he quoting from Blackstone's Commentaries, pp. 39, 44. In this position Mr. Bliss is not supported by any one, and the authorities he cites go to another proposition; neither does he address himself to the question as being one of classification.

131 Blk. Com. 43.

law or the rule of civil conduct (14); for he says: "Municipal law is a rule of civil conduct. This distinguishes municipal law from the natural or revealed. The former (natural) is a rule of moral conduct, and the latter (revealed) a rule of faith; but municipal or civil law regards him (man) as a citizen and bound to other duties than those of mere nature or religion" (15). Then follows an inquiry into the nature of civil government, the object of which is to locate a supreme power, which, to be consistent with his definition, must be found somewhere. "There is," he says, "and must be in all of them (states), a supreme, irresistible, absolute and uncontrollable authority in which the jura summi imperii or right of sovereignty resides" (16). This he finds to be in England the legislative body, which is the parliament (17). In the United States the idea is entirely different, and will be discussed with Magistrate and People.

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16 Id., p. 49. Bentham says: "The vehemence of this passage is remarkable. He ransacks the language; he piles up, one upon another, four of the most tremendous epithets he can find; he heaps Ossa upon Pelion; and, as if the English tongue did not furnish expressions strong or imposing enough, he tops the whole with a piece of formidable Latinity. From all this agitation it is plain, I think, there is something which he has very much at heart; which he wishes, but fears, perhaps, to bring out undisguised; which in several places, notwithstanding, bursts out involuntarily, as it were, before he is well ready for it; and which, a certain discretion, getting at last the upper hand of propensity, forces as we have seen, to dribble away in a string of obscure sophisms. Thus, oddly enough, it happens that that passage of them all which, if I mistake not, is the only one that was meant to be dedicated expressly to the subject, is the least explicit on it." Fragment on Gov., ch. 4, sec. 13.

17 Page 49.

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