3. Species of Positive Law.—The positive laws of any country, considered as a system, may be divided with refer ence to their sources (or the modes by which they become laws) into written and unwritten. This division of laws is of great antiquity ; the expression un written laws occurs in Xenophon's Me morabilia,' in a conversation attributed to Socrates (iv. 4, 19), in the 'Antigone' of Sophocles (v. 450-7; comp. Arista. Rhet. i. 13, 2), in the ' Republic and Laws of Plato' (v. 563 and 793, ed. Steph.), and in Demosthenes (Aristocrat., p. 639, ed. Reiske). In these passages it appears to signify those rules of law or morality which (being founded on obvi ous dictates of utility) are nearly com mon to all countries. Unwritten law, in this sense, nearly corresponds with the jus naturale of the Roman lawyers. In the language of the Digests and the Insti tutes, the terms written and unwritten law (" jus quod constat ex scripto aut ex non scripto ") are used in a more precise manner, to signify those laws which had been promulgated by the Roman legisla ture in writing, and those rules of law .!_ad been tacitly adopted by the same legislature from usage.* For (as it is stated in a passage of the Digests) "since the laws derive their binding force from nothing but the decision of the people, it is fitting that those rules which the people have approved of with out reducing them into writing should be equally obligatory. For what differ ence is there whether the people declares its will by vote or by its conduct ?" ("Quum ipsre leges nulls alia ex cause nos teneant quam quod judicio populi receptor stint, merito et ea gum sine scripto populus probavit, tenebunt omnes ; nam quid interest, suffragio populus voluntatem suam declaret, an rebus ipsis et factis?" Dig., lib. i., t. 3, fr. 32.) Sir William Blackstone divides the law of England into the "lex non scripta, the unwritten or common law, and the lex scripta, the written or statute law." " The lex non scripta, or unwritten law (he further says), includes not only gene ral customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom ; and like wise those particular laws that are by custom observed only in certain courts and jurisdictions." " When I call these parts of our law leges non pro ceeds to say), I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the pro found ignorance of letters which formerly overspread the whole Western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had little idea of writing.... But with us, at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of re ports and judicial decisions, and in trea tises of learned sages of the profession, pre served and handed down to us from the times of highest antiquity. However, I therefore style these parts of our law leges non scripts', because their original insti tution and authority are not set down in writing." (1 Com., p. 63.) In this Blackstone clearly explains that unwrit ten law is so called, not because it does not exist in writing, but because it was not promulgated by the legislature in a written form. His statement of the sorts of laws severally comprehended by the classes of written and unwritten law in England is erroneous. Written law com prehends not only the statutes made by the parliament or supreme legislature, but also the written regulations issued by subordinate legislatures, as orders in council, and rules of court made by the judges. Unwritten law, moreover, com prehends not only the common law which is administered by the courts styled " courts of common law," but also the greatest part of the law styled "equity," which is administered by the courts styled " courts of equity." Unwritten law has been called by Mr. Bentham judge-made law ; a name which correctly denotes the mode by which it becomes law.
It may be remarked that a written law is called a law, but that a rule of unwrit fru law is never called a law. This phraseology corresponds to the distinction between lex and jus, and gesetz and recht, which was explained above.
Positive laws are also divided, accord ing to their source, into laws made by supreme, and laws made by subordinate legislatures. In other words, laws may be issued by the sovereign legislature, or by functionaries who derive their au thority from the sovereign legislature.
The sources of law are not unfrequently confounded with its causes ; in other words, with the facts which induce the sovereign to invest certain maxims with the legal sanction. Thus it is fancied that a rule of customary or consuetudi nary law exists as law, by virtue of cus tom or usage, and not by virtue of the authority of the sovereign or his repre sentative, who has imparted to it a bind ing force. This subject is clearly ex plained in Mr. Austin's Outline of a Course of Lectures on General Juris prudence,' pp. 10, 11.
The laws of a state, considered as a system, may be divided, with reference to their subject-matter, into public and private. The division of jus into jus publicum and jus privatum originated with the Roman jurists, and occupies a conspicuous station at the beginning of the Digests and Institutes. No trace of this division exists, as far as we are aware, in any Greek author. Jus pub lieu= is defined to be "quod ad statum rei Romaine spectat," " quod in sacris, in sacerdotibus, in magistratibus consistit" Jusprivcaum is that " quod ad singulorum utilitatem pertinet." The institutional
treatises of the Roman lawyers appear to have been confined to jus privatum. The Institutes of Justinian do not touch upon jus publicum, except in the final chapter 1)e Publicis Judiciis, and this chapter is wanting in the Commentaries of Gains, on which the Institutes of Justinian are mainly founded. Hence it appears that the Roman lawyers included under jus publicum not only the powers of the sovereign, and the rights and duties or persons in public conditions, but also criminal law. Their definition of flu, publicum, however, does not properly in clude criminal law, and the term, as used by later writers, has not in general this extension. Publicus is the adjective of populus, and signifies that which belonged to the sovereign body of citizens ; hence jus publicum signified that law which concerned the government of Rome, and its magistrates and other functionaries. Privatus seems to have meant originally that which was separated or set apart from any common stock ; hence it came to signify that which did not concern directly the public or state.
The formal division of law into public and private is not to be found in the in stitutional treatises of English Law. It is however used by Lord Bacon, in his treatise De Augmentis.' lib. viii. A ph. 80 ; where he advises that, after the .model of the Roman jurists, jus publicum should be i xcluded from institutional treatises.
Sir W. Blackstone, in the first book of his Commentaries,' treats of the rights and duties of persons, in their public and private relations to each other (pp. 146, 422). The former branch of this divi sion, which occupies chapters 2 to 13, nomprehendsjus publicum, in its limited sense, which nearly corresponds to the English term "constitutional law." The droit politique or constitutionnel of Mr. Bentham, in his 'Trait& de Legislation' (tom. i. p. 147, 325-6, ed. 1802), is also equivalent to jus publicum, in its strict sense. (Austin's Outline, p. lxvii.) Positive law is further divided, with reference to its subject, into the law of persons and the law of things. The Ro man jurists, who were the authors of this division, arranged these two classes under the head of jus privatum, together with a third, viz. the law of actions, or of judicial procedure. A full explanation of this important division is not consistent with the purpose of the present article : we extract a brief and lucid statement of it from Mr. Austin's Outline' already cited. "There are certain rights and duties, with certain capacities and in capacities to take rights and incur duties, by which persons, as subjects of law, are variously determined to certain classes. The rights, duties, capacities, or incapa cities, which determine a given person to any of these classes, constitute a condi tion, or status, which the person occupies, or with which the person is invested. The right, duties, capacities, and incapa cities, whereof conditions or status are respectively constituted or composed, are the appropriate matter of the department of law which commonly is named the law of persons: jus quod ad personas pertinet. The department, then, of law which is styled the law of persons is con versant about status or conditions ; or (ex pressing the same thing in another form) it is conversant about persons (meaning men) as bearing or invested with persons meaning status or conditions). The de partment of law which is opposed to the law of persons is commonly named the law of things ; jus quod ad res pertinet. The law oi' things is conversant about matter, which may be described briefly in the following manner : it is conversant about rights and duties, capacities and in capacities, in so far as they are not con stituent or component parts of status or conditions. It is also conversant about persons, in so far as they are invested with, or in so far as they are subject to, the rights and duties, capacities and in capacities, with which it is occupied or concerned" (pp. xvi., xvii.). The most important conditions or status, composing the law of persons, are public or political, and private. The former species includes all persons sharing the sovereign power and all public functionaries ; the latter includes the conditions of wife, parent and child, master and servant, guardian and ward, &c. The term jus publicum, when used in a pre cise sense, is equivalent to the former of these species. It may be remarked, that the erection of certain aggregates of rights and duties into a status is more or less arbitrary; and that the jurist must be guided by considerations of method and convenience, concerning which no very precise rules can be laid down. For example, in a country where a large sum of money was expended by the govern ment in the relief of the poor, and where a large part of the working classes con sisted of paupers (or persons receiving legal relief), it might be expedient to make the rights and duties of a pauper a condition, or status, in the law of per sons. In a country where the legal re• lief of the poor was insignificant in amount, the rights and duties of a pauper would be more conveniently introduced in the law of things. Sir W. Blackstone, misled by the ambiguity of the Latin word jus, has rendered jus personarum and jus rerum by "rights of persons," and " rights of things." The origin of this portentous blunder is explained in Mr. Austin's 'Outline,' p.