subordinate to it. The distinction of the ancient conception and substitution of the new idea is the great achievement of our early publicists.

The conception of dividing the law into two parts, public and private, fails to observe the accepted doctrine of American law, that the body politic itself is a person (12), that all magistrates are persons, that all corporations are persons, that all individuals are persons, and that all rights cluster around and radiate from persons as they stand in some capacity or incapacity in which they are clothed by law. The recognition of this enables Hale and Blackstone to present a beautiful outline of English law. It is the strong side of their plan. It is sometimes said that constitutional law is not treated by Blackstone, but this is an error. All the recognized rules of constitutional law of England are in some form or other treated by Blackstone under the law of persons, very much of the same being again repeated under the law of wrongs-a defect which swelled the volume of his work and tended to confusion on account of the repetition.

Constitutional law is logically speaking a part of the law of persons or personal relations. In most treatises upon American law, the lack of an analysis of the subject such as that possessed by Hale and Blackstone prevents the treatment of the constitutional law of America under the law of persons, and this place has been taken by the title-head "Constitutional Law," to the utter con

12 There was formerly in England some obscurity as to who constituted the body politic-The People or Parliament as Blackstone affirms-but no such question is left in our law.

fusion, in fact, of all logical method in text writing, for the reason that there is no right, tangible or intangible, personal, or of property, which is not protected by the constitution. There is no authority, legislative, executive or judicial, which is not limited by the constitution. When subjected to examination it will be found that under the public law of these authors will be found the relations of men in regard to public matters, as Magistrate and People, and there will always be found that confusion contained in the statement of Professor Pomeroy that those rules (laws) which control the subject member of the state in the relations with the whole body ought in strictness to be ranged in the private law; but as these relations are public in their nature, the rules themselves are also considered as a part of the public law. On the contrary, if the capacities or incapacities, powers or duties of the public functionaries are treated directly in relation to their capacity as persons, we obtain exactly the notion we desire, namely: the identity of the alleged person, and the powers, duties, obligations and disabilities appended thereto by law; and I apprehend that upon investigation it will be found that the subjects classed under either the general heads public or private law will be found to be treated more analytically and specifically as subordinate to the general heads which we shall hereafter adopt.

"Public law," says the Institutes, "relates to the government of Rome." It also included criminal law, which is not treated in the Institutes (13).

18 Austin's Jur., vol. 2, p. 778.

§ 58. Ancient classifications. The attempts to classify systems of law that have been attended with anything like success are those of Gaius, Justinian, Hale, and Blackstone. In the Commentaries of Gaius and the Institutes of Justinian, we have nothing on the subject of political relations excepting something regarding the sources of law. The analysis of Hale did not include the criminal law, as he had treated that subject in his "Pleas of the Crown."

All of these attempts at classification have proceeded upon what we believe to be true principle of legal analysis, namely: a classification of laws according to the objects to which the rules relate, or, as we might otherwise put the same idea, laws are to be classified according to the subject-matter of the law, each and all being intimately connected with the ideas and nomenclature of the law of the United States; and in many cases we will see terms borrowed from one or the other to express ideas not at all similar to the idea conveyed by the same word as originally used.

§ 59. Persons and things. It is not strictly true that Blackstone makes no use of the classification into Rights and Wrongs in the body of his work, as we shall presently see; for in chapter 1 of the Commentaries proper, he says: "Now, as municipal law is a rule of civil conduct commanding what is right and prohibiting what is wrong, it follows that the principal objects of law are Rights and Wrongs;" and in the prosecution of the Commentaries he professes that he will follow the very obvious division of the law into Rights and Wrongs, and

the title of the first book is "The Rights of Persons." He then proceeds: "Rights are liable to another subdivision; either, first, those which concern and are annexed to the persons of men and are then called jura personarum, or the rights of persons; or second, such as a man may acquire over external objects or things unconnected with his person, which are styled jura rerum, or rights of things.

He does not, however, classify wrongs as the wrongs of persons and the wrongs of things. This division of "rights" into rights of persons and rights of things is apparently based upon a supposed adherence to the arrangement of the Roman law, and also a translation of the Latin expression jura personarum and jura rerum as the rights of persons and the rights of things.

Gaius treats the subject under the title-head, "the division of the law," not the division of rights, his expression in Latin being, "Omne autem jus quo utimur vel ad personas pertinet, vel ad res, vel ad actiones," translated by Sandars, "all our law (not all our rights) relates either to persons, to things, or to actions" (14).

Austin has been criticized as using harsh language because he characterizes the translation by Hale and Blackstone of jura personarum and jura rerum, with rights of persons or rights of things, as mere jargon (15); but it must be remembered that it is a very serious defect in an institutional work to make use of any expression, without explanation, which it is necessary to explain before

14 Gaius, 1-8; Sandars' Justinian, 1-3; Austin's Jur., 983.

15 Austin's Jur., p. 294, note.

it conveys an intelligent idea, and which, also, when explained to one acquainted with the vernacular in which the book is written, expresses an idea entirely different from the idea suggested by the words used.

There is no difference of opinion as to the meaning of the words jura personarum and jura rerum when used in these connections; all are agreed that in these situations these words mean law of persons or law relating to persons and law relating to things, and not the rights of persons and the rights of things (16).

The whole confusion in regard to rights and wrongs, and rights of persons and rights of things, results from Blackstone's transplanting the nomenclature and definitions of natural law, borrowed from Roman law, into England without the use of intelligent translation and apt explanation.

§ 60. Rights of persons-Blackstone's meaning. It has been claimed that this error in translation, rights of persons and rights of things, instead of laws concerning persons and laws concerning things, arises on account of ignorance, so far as Blackstone was concerned (17). If it is so absurd an error as claimed by Mr. Austin, Blackstone erred in good company, for he merely followed Lord Hale, who was at least the equal of any other lawyer of his day. That jura personarum and jura rerum could not properly be translated rights of persons and rights of things, but that the word "jura" in that con

10 See also Sandars' Justinian, Hammond's Int.; Holland's Jur.; Austin's Jur., 157, 376, 715, 761, 763, 983.

17 Austin's Jur., 71, 294, 715.