CHAP. XV. an alien enemy has no 'persona standi in iudicio,' that a peer is privileged from arrest, as is a clergyman on his way to or from the performance of divine service, that if one of the parties in an action for a divorce be lunatic, the suit may proceed notwithstanding his, or her, inability to plead, and that a husband must be joined in an action against his wife.

CHAPTER XVI.

PUBLIC LAW.

acteristics

'I CONSIDER,' says Lord Bacon,' that it is a true and received The chardivision of law into ius publicum and ius privatum, the one of public being the sinews of property, and the other of government 1.' law. The nature of the distinction has been already explained 2. In private law the State is indeed present, but it is present only as arbiter of the rights and duties which exist between one of its subjects and another. In public law the State is not only arbiter, but is also one of the parties interested. The rights and duties with which it deals concern itself of the one part and its subjects of the other part, and this union in one personality of the attributes of judge and party has given rise to the view, from which we have already expressed our dissent, that the State, or, as it is expressed, the Sovereign, not only has no duties, but also has no rights properly so called 3.

The conception of public, as opposed to private, law is due

1 Preparation towards the Union of Laws, Works, vii. 731. * Supra, p. 106.

Supra, p. 109.

CHAP. XVI. to the Romans, who say of it ad statum rei Romanae spectat,' ' in sacris, in sacerdotibus, in magistratibus consistit1,' and, as a matter of fact, include in it also the law of crime. With this extended meaning the phrase has been accepted, and is in daily use, in the legal speculation and practice of the continent of Europe, but unfortunately finds no equivalent in our insular legal terminology". An English lawyer, when he had been made to understand the idea, which to his foreign colleagues is at once rudimentary and indispensable, would probably come to the conclusion that it covers the topics which are recognised in this country as Constitutional law,' 'Ecclesiastical law,'' Revenue law,' and 'Pleas of the Crown.' It is therefore somewhat remarkable that perhaps the most masterly summary of the nature of public law is to be found in the writings of an English Lord Chancellor. Ius Privatum,' says Lord Bacon, 'sub tutela Iuris Publici latet. Lex enim cavet civibus, magistratus legibus, magistratuum autem authoritas pendet ex maiestate imperii et fabrica politiae et legibus fundamentalibus. Quare si ex illa parte sanitas fuerit et recta constitutio, leges erunt in bono usu, sin minus, parum in iis praesidii erit. Neque tamen Ius Publicum ad hoc tantum spectat ut addatur tanquam custos Iuri Privato, ne illud violetur atque ut cessent iniuriae, sed extenditur etiam ad religionem et arma, et disciplinam et ornamenta et opes, denique ad omnia circa Bene Esse civitatis 3.'

Its parts.

3'

The distinctions in accordance with which the field of private law has been divided and subdivided apply to public law also. In the latter as well as in the former we may detect a 'substantive' body of principles adopted for

1 Dig. i. I. I. 2. 'Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem. Sunt enim quaedam publice utilia, quaedam privatim.'

2 The two departments were similarly confused in Old German law. Cf. Bluntschli, Deutsche Statslehre, p. 7.

3 Exemplum tractatus de Iustitia universali, Works, i. p. 804; cf. ib. vii. P. 732.

the general welfare, and adjective' rules by which those CHAP. XVI. principles are safe-guarded and reduced to practice. The distinction between rights 'in rem' and rights 'in personam' is as clearly traceable in one department of law as in the other, as is also that between rights antecedent' and 'remedial,' and that between rights'normal' and 'abnormal.'

The last-mentioned distinction is indeed so strongly marked in public law as to have led to a serious misconception as to the nature of the whole subject. The reason is not far to seek. Of the two persons who are constituent elements of every right, one must always in public law be the State, acting of course through its various functionaries. Now a State is an artificial person, the often highly complex construction of which introduces numerous complexities into the rights of which it is one of the factors. Mr. Austin was so struck with this characteristic of public law as to be led to identify the whole subject with those rules which define the different kinds of political status, and so to deny its separate existence and to regard it merely as one branch of what he calls the law of persons, but we prefer to describe as the law of abnormal rights. He is thus a revolter, in the unwonted company of Blackstone, against what, according to the Roman and modern continental systems, is the primary division of the field of law. Instead of attempting a detailed disproof of a heresy which perhaps sufficiently refutes itself, by leading its apologists to conclusions which he evidently feels to be inconvenient, it may perhaps be sufficient to confront it with what we conceive to be the true doctrine, namely that among the distinctions which are traceable in public as well as in private law, that between normal and abnormal rights is among the most conspicuous.

tion of its

It by no means follows from the same principles of division Classificabeing applicable both in public and in private law, that they topics. are most conveniently applied in the same order in the two departments, or that their application produces in each case similar results.

CHAP. XVI.

Relations

to the classification of

private law.

The correlation of the parts of public law one to 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 systematic exposition, and it is with some hesitation that we propose to consider it under the heads of-I. Constitutional law; II. Administrative 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 1.

The first four of these heads contain the topics which are most properly comprised in Public law. It would be possible, though not convenient, to arrange these topics in accordance. with the classification adopted in Private law. If the attempt were made, antecedent rights would have to be sought for in Constitutional and Administrative and also in Criminal law; remedial rights in Criminal and also in Administrative law; adjective law mainly in Criminal procedure; and abnormal law mainly in Constitutional and Criminal law. The importance of the last-mentioned topic is due, as already stated, to the fact that, whereas in Private law both of the persons concerned with any given right are, as a rule, perfectly similar, and of that normal type which requires no special investigation, the persons concerned in a Public-law right are necessarily dissimilar, one of them being always that highly abnormal person which is called a State. It may also be remarked that the majority of the rights dealt with in Public law are permanently enjoyed by the State as the person of inherence against its subjects as the persons of incidence. In Private law, on the contrary, he who is to-day the person of inherence with reference to a right of any given description may very probably become to-morrow the person of in

1 It may be worth while to remark that what the Germans call 'Staatsrecht' deals with the topics into which we have analysed Public law,' omitting Nos. III and IV.