3. 32.) Sir William Blackstone, dividing the law of England into "the lex non scripta, the unwritten or common law, and the lex scripta, the written or statute law," goes at some length into the explanation of unwritten law generally, and the elements of which it is composed, as well as into a specific) account of the matter composing the unwritten law of England. (1 Coin. p. 63.) In that passage Blackstone clearly explains that unwritten 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 comprehends 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, comprehends 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 LAB been called by Mr. Bentham judge-made law ; a name which correctly denotes the mode by which it becomes law.
It many be remarked that a written law is called a law, but that a rule of unwritten law is never called a law. This phraseology corres ponds to the distinction between lex and jus, and yesetz and recta, which was explained above.
Poeitive laws are also divided, according to their source, Into laws made by and laws made by subordinate legislatures. In other words, laws may be issued by the sovereign legislature, or by function erica deriving their authority 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 eonsuetudinary law exists as law, by virtue of custom or usage, and not by virtue of the authority of the sovereign or his repre sentative, who has Imparted to it a binding force. This subject Is clearly explained in 31r. Austin's Outline of a Course of Lectures on General Jurisprudence, pp. 10, 11.
The laws of a state, considered as a system, may be divided, with reference to their subject-matter, into public and prirate. The division of jus into jus publicum and jus prireturn 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. Juts publicum is defined to bo 'quod ad datum rei Humana) spectat," quad in merits, in sacerdotibus, in magia imaus minima.' Jet prirutuns is that 'quad ad singulorum etilmtatomn pertinet.' The institutional treatises of the Roman lawyers splicer to have been confined to jus priratum ; the Institutes of Justinian do not touch upon jus publieum, except in the final chapter De l'ublicis 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 of per sons in public conditions, but also criminal law. Their definition of jus publicum, however, does not properly include criminal law, and the term, as used by later writers, has not in general this extension. Pub licus is the adjective of populus, and signifies that which belonged ,to the sovereign body of the citizens; hence jus publicans 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 institutional treatises of English law. It is. however, used by Lord Bacon, in his treatise' De Augmentis,' lib. viii., aph. 80 ; where he advises that, after the model of the Roman jurists, ins publicans should be excluded 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 division, which occupies chapters 2 to 13, comprehends jus publicum, in its limited sense, which nearly corresponds to the English term consti tutional 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. Ixsii.) Positive LAW is further divided, with reference to its subject, into the law of persons and the law of things. The Roman jurists, who were the authors of this division, arranged these two classes under the head of jus pirate's, 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 : a brief and lucid statement will be found in Mr. Austin's ' Outline' already cited, pp. xvi-xviii. The most important conditions or status, composing the law of persons, are public, or political, snd private. The former species includes all persons sharing the sovereign power and all public functionaries ; the latter includes the conditions of husband and wife, parent and child, master and servant, guardian and ward, &c. The term jus publicum, when used in a precise sense, is equivalent to the former of these species. Sir W. Blackstone, misled by the ambiguity of the Latin word jug, has rendered jus personarum and jus reruns by ' rights of portions,' and 'rights of things.' The origin of this portentous blunder is explained in 31r. Austin's Outline,' p.