The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER I.

GENERAL DIVISION OF THE AGGREGATE BODY OF THE LAW.

On viewing the aggregate of that which in any country has the force of law, it will be found divisible, in the first place, the whole of it, into two portions or branches, viz. in the first place, that in which the rule of action is laid down simply and absolutely, without reference to the functions of any such members of the community as those whose business it is, under some such name as that of judges, or ministers of justice, to secure the observance of it; in the next place, that in which a description is given of the course to be taken by those same official persons for securing the observance of, and giving execution and effect to, the several arrangements contained in that same main or substantive branch. This branch may be distinguished by the name of the adjective branch, or law of judiciary procedure.

The main or substantive portion, or branch of the law, may again be distinguished into two portions or branches. In the first place, that in which individuals are considered separately only, and in their private capacity. This may be distinguished by the name of private law. In the next place, that in which individuals are regarded collectively, and in some public capacity, with a view to the powers necessary to be exercised by some of them over others, for the good of the whole. This branch may be distinguished by the name of public or constitutional law.

The law cannot in any part of it operate without doing more or less towards the making distribution of benefits and burthens.

Burthens it may distribute or impose without distributing or conferring benefit, in any shape. Benefit in any shape it cannot confer, without, at the same time, imposing burthen in a correspondent shape, either on the individual benefited, or intended to be benefited, or on some other or others, most commonly even on all others, with little or no exception.

The whole body of the law may again, by another division, derived from the source just mentioned, be distinguished into two branches, viz. that which is occupied in the description of the distribution intended to be made of benefits and burthens respectively as above. This branch may be styled the distributive branch of law. It is that which is occupied in the description of the arrangements for giving effect to such distribution, by furnishing individuals with inducements adequate to the purpose of rendering their conduct conformable to the plan of distribution so marked out. Of the inducements thus employed, some will be of a disagreeable nature, and thus come under the notion of burthens; others of an agreeable nature, and thus come under the notion of benefits.

That branch of law, the arrangements of which are occupied in the application of burthens to the purpose of securing conformity to the arrangements made by the distributive branch of law, is distinguished by the name of penal law.

That branch of law, the arrangements of which are occupied in the application of benefits to the purpose of securing conformity to the arrangements made by the distributive branch of law, may be distinguished by the name of the remuneratory or remunerative branch of law.

Of the whole body of actual law one preeminently remarkable division, derived from a correspondently remarkable source, and pervading the whole mass, still remains. It is that by which it is distinguished into two branches—the arrangements of one of which are arrangements that have really been made—made by hands universally acknowledged as duly authorized, and competent to the making of such arrangements, viz. the hands of a legislator-general, or set of legislators-general, or their respective subordinates. This branch of law may stand distinguished from that which is correspondent and opposite to it, by the name of real law, really existing law, legislator-made law;—under the English Government it stands already distinguished by the name of statute law, as also by the uncharacteristic, undiscriminative, and, in so far improper appellation, of written law. The arrangements supposed to be made by the other branch, in so far as they are arrangements of a general nature, applying not only to individuals assignable, but to the community at large, or to individuals not individuals assignable, may stand distinguished by the appellations of unreal, not really existing, imaginary, fictitious, spurious, judge-made, law. Under the English Government the division actually distinguished by the unexpressive, uncharacteristic, and unappropriate names of common law and unwritten law.

Of the manner in which this wretched substitute to real and genuine law is formed, take this description. In the course of a suit in which application is made of the rule of action thus composed, the judge, on each occasion, pretends to find ready made, and by competent authority, endued with the force of law, (and at the same time, universally known to be so in existence, and so in force,) a proposition of a general aspect, adapted to the purpose of affording sufficient authority and warrant for the particular decision or order, which on that individual occasion he accordingly pronounces and delivers.

Partly from the consideration of the general propositions so framed, as above, by this or that judge, or set of judges; partly from the consideration of the individual instruments or documents expressive of such individual decision or order, as above; partly from the consideration of such discourses as have been, or are supposed to have been, uttered whether by the judges or by the advocates on one or both sides,—a class of lawyers have, under the names of general treatises, or reports of particular cases, concurred in the composition of an immense chaos, the whole of it written, and a vast portion of it printed and published, constituting an ever-increasing body of that which forms the matter, which passes under the denomination, of unwritten law.