562
The Green Bag
possibly having a bearing upon persons,
crimes and punitive procedure.
things and actions."
institutional juristic facts are universally asknowledged because they exist every where and at all times. They are
THE DIVISIONS OF THE LAW In the writings of all jurists, however much they may differ as to their method of grouping by way of a formal external arrangement, there is the recognition of natural groups or bodies of rules, wherein all the rules of a given group have relation to each other according to some principle which differentiates each and all, from the rules embraced within every other group. All recognize a body of rules relating directly to po litical relations, another body relating
directly to the family relations, another relating to ownership or property, another relating to injuries and remedial procedure, still another relating to
These
immutable conceptions which even an omnipotent legislator cannot ignore." The institutions of Society, Family, Government, Property, Remedial Jus tice and Criminal Punishments are inherent in the nature of things. Thus Amos says : Mr. Austin established once for all, as has
been already intimated, with a decisive cleamess which none of his rivals in this or any other country have equaled, that in all systems of law, to whatever period or form of civilization they may belong, there are certain definite and lasting conceptions, the constant reappearance of which can ever assuredly be counted upon and which are capable of being expressed in an universal
language.’0 "Eg. the courts are every day called upon to determine whether the direct object of law is police or commerce. This idea may be illustrated by Mr. Justice Story‘s observations on the modern civilian's classification of laws: "By statutes, they mean, not the positive legislation which in England and America is known by the same name, via..- The Acts of Parliament and of other legislative bodies, as contradistinguished from the common law; but the whole municipal law of the particular state, from whatever source arising. “Merlin says: ‘This term. statute. is generally applied to all sorts of laws and regulations. Every provision of law is a statute which permits, ordains or prohibits anything.’ ‘Personal statutes’, says Merlin, ‘are those, which have principally for their object the person, and treat only of property (biens) incidentally (accassoirament); such are those, which regard birth, legitimacy, freedom, the right of instituting suits, majority. as to age, incapacity to contract, to make a will, to plead in proper person, etc. (in. status or capacity). Real statutes are those which have principally for their object property (biens), and which do not speak of persons. except in relation to property; such are those which concern the disposition, which one may make of his property, either while he is living, or by testament. Mixed statutes are those which concern at once persons and property.‘ But Merlin adds. ‘that in this sense almost all statutes are mixed. there being scarcely any law relative to persons, which does not at the same time relate to things.’ He therefore deems the last classification unnecessary, and holds that every statute (rule of law) ought to receive its denomination according to its principal objact. As that is real, or personal, so ought the quality of the statute be determined."—Story‘s Conflict of Laws, sec. 13.
The question may be asked:
“If
this is true, why not arrange the law according to these groups?" The obvi ous answer is: “Assuming the premises to be true, such is the natural mode of grouping."
Why then has it occurred that there are recognized among jurists primary divisions of classification less in number
than the main topics? The answer is: Because it tends to clearness, brevity and harmony to have all subjects or topics related according to the principle of classification adopted grouped in accordance with that principle—in this
case the principle of genera and species. Holland says : No code from the Code Theodosian to the ""An institution (e.g. Property, Obligation. Slavery. Tithe, Advowson) is the same thing as a
Right or Obligation, but the one is abstract, the other concrete . . .the term “Institution" con notes constancy and permanence. just as when it is used in another sense to denote the monarch. or legislative body, or tribunals. or any other permanent organs destined to perform certain constantly recurring functi0ns."-Poste's Gaius,
pp. 22, 23. ’0 An English Code, p. 205.
