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primary rights to which they relate.
The word status, as
used in the last sentence, means membership in a legal class of persons; it does not there mean, as in the next great head of law, classes of persons.
This head includes non-contractual primary rights in personam, not included under the heads, Law of Persons, and Property, such as, the right to have a surgeon practice his art on the right-holder with skill.
6. Status, the law governing exceptional classes of persons, such as minors and lunatics. This head is formed by subtraction from the four preceding heads. It includes the law of private corporations, of partnerships, the law of principal and agent, master and servant, guardian and ward, and a part of the law of family relations. It includes (1) the name and definition of each class and the division of it into sub-classes; (2) the means by which members of each class are created and destroyed; (3) the powers, rights, and remedies of members of each class; and (4) their duties and liabilities.
7. Procedure, which comprises such matters relating to the enforcement of primary rights as cannot, on account of their generality, be conveniently treated under the preceding heads. It includes the heads, Pleading, Practice, Evidence, and Measure of Damages and part of the law of Judgments.
The jurisdiction and rights of courts, and the powers and rights of judges and juries as constituent parts of courts, fall logically under the first head of this classification, Structural Law.
8. General Principles, Rules of Construction and Definitions. This head includes the general rules relating to estoppel and negligence. It is convenient to group general principles by themselves, because they are applied under all of the preceding great heads of law, and therefore could be treated under any one of such heads only in an incomplete The principles collected here are secondary principles, which express applications of the two primary princi
ples, justice and utility, on which all statute and case law as well as morality are founded. These secondary principles have been formulated for the most part in the inquiry into the ethical grounds on which law should be framed, not by an analysis and classification of established legal rights.
9. The Law of Nations, the quasi law governing the intercourse of the nation whose law is to be classified with other nations. The variations of law, which are caused by the absence of persons or things from the national territory, or by the occurrence of some transaction abroad, that is, the subject, sometimes denominated, Private International Law, is broken into parts and is distributed to all the great heads of the foregoing classification. Admiralty law, the law of the sea, falls logically under all the nine great heads of law; but for convenience of reference the greater part of it may be collected under the present head.
The foregoing classification admits of considerable latitude in the distribution of the law. For example, the greater part of the law of family relations may be collected either under the head, Law of Persons, or under the head, Status; much of the law relating to remedies may be collected either under the several primary rights to which such remedies relate, or under the head, Procedure. Convenience must decide what shall be done in dealing with the law of a particular country at a given time, keeping in view ease of reference, historical development and scientific arrangement. The classification here given is applicable to past systems of law, which recognize proprietary rights in men, that is, slavery, and proprietary rights in public offices.
The importance of ease of reference in any arrangement of the law for every day use by the bench and bar may make it advisable to arrange the topics comprising the nine great heads of law under each of those heads alphabetically.
The division of rights into legal and equitable, known to American and English law, and similar divisions in the law
of other nations-for example, the division of Roman law into the old Roman law, and the law built up by successive pretorian edicts have come about by historical development; they have not been formed by a logical analysis of the matter classified. The division of the whole field of law into legal law and equitable law, is a division which crosses the classification set forth in this paper. Under this classification, however, the distinction between law and equity may be preserved. It is always possible, in describing a right, to state that it is recognized and enforced by courts of law or by courts of equity, or by both, and such a statement is sufficient to preserve this distinction. Equity law, as it exists in this country to-day, is not only a system of remedies to enforce primary rights, recognized by courts of law, but it also comprises equitable primary rights, enforced by courts of equity and not recognized by courts of common law; for example, the rights of a beneficiary of a trust, technically called a cestui que trust, against his trustee. By far the greater part of equitable primary rights fall under the heads, Property and Contracts. Very few equitable primary rights are found under either head of Public Law or under the head, Law of Persons, or, except as they are property or contract rights, under the head, Status. The application of equitable remedies is also confined, for the most part, to the heads, Property and Contracts. In criminal law there are no equitable primary rights nor equitable remedies.
The distinction between law and equity is by no means the only historical line of distinction to be encountered in a classification of our own law. During the period of the English colonization of America, and at the time of the adoption of the United States Constitution, there were, in England, five systems of courts which administered, not only different remedies to redress violated primary rights, but differed in their recognition of primary rights, i. e., administered somewhat different systems of substantive law. These courts were the common law courts-the ecclesiastical
courts, exercising as part of their jurisdiction probate jurisdiction over personal property, and having exclusive jurisdiction to appoint administrators and to grant a divorce from bed and board -admiralty courts-courts-martial, military and naval--and chancery courts, exercising a general chancery jurisdiction, supplementing and controlling the other courts. Laying out of view courts-martial, the systems of jurisdiction and substantive law, which were administered by these courts, survive in our own law, although the different systems of substantive law are now nearly fused and the jurisdiction of the courts re-distributed.
It will be instructive to compare the arrangement of the matter in several of our more celebrated treatises and compilations, dealing with the general law of some nation, with the classification of law stated in this article, I have selected for the comparison, "Kent's Commentaries," the "Code Napoléon,' 'Blackstone's Commentaries" and the "Institutes of Justinian."
Chancellor Kent divides his Commentaries on American Law into six parts. Part 1, he devotes to the law of nations; part 2, he devotes to the structural law relating to our national government in its three departments, legislative, judicial and executive; part 3, he devotes to the sources of American law and, under that head, he treats of matters falling, for the most part, under head 8 of the classification in the text, which relates to general principles, rules of construction and definitions; part 4, he devotes to the law of persons and status; part 5, he devotes to personal property, including contracts; and part 6, he devotes to real property. It thus appears that his treatment of structural law is confined to that part of it relating to the national government. As to the structural law of the States of the Union he is silent. Of Public Law, Part 2, as that term is used in the classification given in the text, i. e., the rights of the State (represented in this country by the national government and the governments of the several States of the
Union) against individuals and the rights of individuals against the State, he has almost nothing to say. He does not treat of criminal law and criminal procedure. He treats only incidentally of civil procedure.
The Code Napoléon, treating of French law, is divided into three books. The first book, entitled "Of Persons," is devoted to the topic, citizenship, falling under the head, Public Law, Part 2, and to various topics, such as marriage, divorce and guardianship, falling under the heads, Law of Persons and Status, as those terms are used in the classification of law given in this paper. The second book, entitled "Of Property and the Different Modifications of Property," is devoted to a part of the law of property. various kinds of ownership and some of the incidents attached to each kind. The third book, entitled “ Of the Different Modes of Acquiring Property," is devoted to the topics, (1) succession, i. e., the transmission of property by descent and by will; (2) contracts; and (3) some matters of procedure, such as the arrest of the defendant in a civil suit. The great heads, Structural Law, and Public Law, Part 2, the rights of the State against private persons, including criminal law and criminal procedure, and the rights of private persons against the State, are not treated, with the exception of the single topic, citizenship. The head, Law of Nations, is not treated at all, and the other great heads, Law of Persons, Contracts, Status, Procedure, are treated only in a very fragmentary manner.*
Blackstone treating of English law divides his Commentaries into four books, preceded by an introduction. The latter he devotes to general topics, most of which fall under head 8 of the classification of law in the text. The first book, entitled "The Rights of Persons," he devotes to the
* It is proper to state that four other codes were promulgated by France between 1804 and 1810 namely (1) the code of commerce; (2) the code of civil procedure; (3) the code of criminal procedure; and (4) the criminal code; these supplement to a considerable extent the deficiencies of the first code.