the various branches of substantive law. What should be properly called the law of evidence, however, is the body of rules "which, with a view to ascertain individual rights and liabilities in particular cases, decides:

"1. What facts may, and what may not, be proved in such cases; "2. What sort of evidence may be given of a fact which may be proved;

"3. By whom and in what manner the evidence must be produced by which any fact is to be proved." 1

1

That is to say, the main heads are relevance of facts, proof, and burden of proof. As facts which may not be proved at all, and facts not proved in the manner which the law requires, are alike non-existent for judicial purposes, it is obvious that the substantive rights of parties may be materially affected according as the rules of evidence are narrower or wider. For example, the old rule of the common law Courts,3 that parties could not bear witness in their own causes, must have made a large number of otherwise just claims of none effect. Hence there is a considerable difficulty in drawing an exact line between rules of evidence, procedure, and law. The usual and all but inevitable solution of text-writers has been to repeat every rule that lies anywhere near the borders in every place where the mention of it might be convenient, or the want of mention misleading. Many rules of evidence, however, are of so limited an application, that they are of no use or importance apart from their special subject-matter; and when we speak of the law of evidence in general we do not consider rules of this kind.*

We may now contemplate in a summary way the divisions of the substantive law, bearing in mind that they are divisions of legal rules, not of the facts and affairs to which the rules apply. The same facts

may call for the application of several rules belonging to distinct branches. Neither must we forget that every department has need, some more and some less, but all in a greater or less degree, of the auxiliary bodies of rules above mentioned.

An ancient and useful division neglected by Hale and Blackstone, but maintained by almost all moderns who have considered the question, is that of public and private law. While it is true that all laws exist for the sake of the common weal, and all legal duties must be duties of some person, yet some rules and heads of law seem to have regard in the first place to the safety or welfare of society as a whole, and others to be concerned with the rights of individual citizens. The former are

1 Stephen, Digest of the Law of Evidence, 6th ed., 1904, p. xiii.

2 "Admissibility of evidence" is an ambiguous term covering both (1) and (2). 3 The rules of equity pleading and evidence were different, being founded on the civilian view that the Court took an active part in ascertaining the facts.

See op. cit., p. xviii.

5 "Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem," D. 1. 1, de iust. et iure, i. s. 2. I do not think this definition of Ulpian's has ever been improved upon. The test of the State being a party does not seem quite right, though it has respectable authority. For the State (using its own corporate name, or the name of the sovereign, or a public department, or a special body of trustees or commissioners, as the case may be) is an owner, buyer, and seller, and in many countries an undertaker, not only of postal communication and the like, but of traffic by land and water and other commercial enterprises; and these are in their nature transactions of private law, and are judged in the main by its ordinary rules, even though the State and its officers be in some respects privileged.

called public and the latter private law. Not that public law does not concern individual citizens, or that the rules of private law have no public interest; but that the public factor in the one case, and the private in the other, is more conspicuous. It will be found, moreover, that the division answers more nearly than most doctrinal classifications to the actual course of practice. Working lawyers, it is true, do not in common practice talk of either public or private law. The reason is quite simple; they are concerned with much less vast and general heads. But they do maintain, for example, a clear distinction between criminal law and the law of property, notwithstanding that, in particular criminal cases of offences against property, the Court may have to consider and decide questions of property, while, on the other hand, it may be necessary for a Court of civil jurisdiction, before it can settle a question of title to property, to decide whether a criminal offence has been committed. Again, the rules which fix the right to vote at parliamentary and municipal elections are easily seen to be in a different category from those which secure the rights of individual citizens in their daily life.

It would be a task of unprofitable conjecture to account for the perplexed and perverse arrangement adopted by Hale, and in the main followed by Blackstone, with the result of putting the legal literature of England in a distinctly inferior position to that of Scotland as regards the means of anything like a systematic and compendious view. There may have been, with Hale at any rate, some feeling of a supposed necessity to place the rights and prerogatives of the Crown as near the beginning as possible; and superficial acquaintance with the methods of Justinian's Institutes and the modern civilians would seem to be answerable for the "Rights of Persons" and "Rights of Things" which led both Hale and Blackstone into disastrous confusion. With Blackstone the working out of a radically bad plan was happily much ameliorated in detail by the author's admirable literary skill and practical experience of affairs.

PUBLIC LAW.

Public law may be roughly distributed under the following heads:I. Constitutional, containing so much of the political constitution as is laid down in positive legal rules. This includes the formation, powers, and privileges of Parliament; the executive functions and powers of the Crown, and the legal duties and responsibility of Ministers; the existence and composition of the judicial establishment; the legal position of the clergy, the navy and army, and the various departments of the public service in relation to the Crown and Parliament; and the machinery of local government.1

1 Sir William Anson's treatise on The Law and Custom of the Constitution is the only English book, so far as I know, that contains anything like a comprehensive and systematic account of these matters. The monographs in Macmillan & Co.'s English Citizen" series are useful, but some of the best have unluckily been allowed to fall out of date. Students of English politics hardly need to be told that in this region it is often difficult to draw a clear line between rules of law, constitutional or parliamentary understandings, and departmental usage.

II. Regulative, embracing the mass of modern legislation (for there is little to be said of common law rules here, and the statutes are mostly recent), intended to safeguard the public welfare and interest partly by the direct action of the State, partly by controlling the conduct of bodies and persons in matters lawful in themselves, but having incidents and results that may lead to public inconvenience. In this kind we have Acts relating to relief of the poor, education, the government of particular professions, such as the legal and medical; also those which deal with merchant shipping, railways, factories and labour,1 public health, building, and so forth. Many matters of this class are dealt with by Orders in Council, or local bye-laws made under authority conferred by some Act of Parliament. This is still legislation, though delegated legislation. Few indeed are the members of the commonwealth, from the great shipping and railway companies down to the smallest householder, who are not more or less affected by some of these provisions.

III. Penal or Criminal.—It would be idle to dwell here on the internal classification of criminal law. Certain broad divisions are so obvious that no material variation of them seems practicable. In the Criminal Code Bill of 1879 the main heads were as follows:

TITLE I. Introductory provisions (this included the general grounds of justification and excuse).

TITLE II.-Offences against public order, internal and external (such as treason, riot, piracy).

TITLE III.—Offences affecting the administration of justice and the maintenance of public order (corruption and neglect of officers of justice, perjury, escape of prisoners).

TITLE IV.-Offences against religion, morals, and public convenience (including nuisances).

TITLE V.-Offences against the person and reputation.

TITLE VI.-Offences against rights of property or rights arising out of contracts.

TITLE VII.-Procedure.

The order in which these topics are dealt with is not substantially different from the rather more elaborate arrangement of the Italian Code, which has been in force since 1st January 1890, and which is probably the most complete and scientific of modern penal codes. There is respectable authority, on the other hand, for placing offences against the State and public order after, and not before, offences against private persons and property. The late Mr. Justice Wright preferred that order in the draft code prepared by him for Jamaica in 1875, and recently adopted in substance in St. Lucia and some other colonies. 2 Most people, I think, would naturally turn to the beginning rather than the end of either a code or a text-book for the class of crimes which primarily affect the State. But it is really a matter of indexing one way or the other.

Besides the main body of criminal law and procedure, we have the

1 The Workmen's Compensation Act, 1897, seems on the whole to belong to this category rather than to any branch of private law.

See the Journal of the Society of Comparative Legislation, vol. i. pp. 177, 180.

regulation of punishment and penal discipline, which now depends, with few exceptions, if any, on modern statutes. These matters, being of an executive and not a judicial nature, stand apart from the rules in which judges and lawyers are usually versed, but without them the law would be inoperative or its operation would be capricious.

PRIVATE LAW.

Many arrangements of the rules of private law have been proposed. We shall take as our guide the generality of the duties involved and the extent and permanence of the corresponding rights. By beginning at the general and constant duties of citizens to one another, and proceeding to those which are less so, and thence to those which are assumed only by voluntary acts, we shall obtain a fairly intelligible order without breaking up the familiar working titles of the law.1

The most general and absolute duties which we owe to one another are those which have regard to safety and freedom of the person, to security in family life, to honour and reputation, to freedom in one's livelihood and exercise of lawful business, to protection from wilful fraud, and to the enjoyment free from intrusion of whatever one is peaceably holding and using, or is entitled to use. Such duties and rights are common to all men. Moreover, they extend in many kinds of affairs much beyond the disallowance of wilful molestation or other unlawful interference. Everyone is bound to use the caution of a reasonably prudent man in the conduct of his own affairs, and to that extent to avoid putting his fellow-citizens in danger of harm to their persons or property. We are not here attempting to state the rules of law, but only the broadest principles which underlie them. The rules cannot be accurately stated in few words; there are exemptions in some directions, conferring qualified or unqualified immunities, and exceptionally strict rules in others.2 The sum of these highly general duties, with all their developments and modifications, makes up the law of civil wrongs or torts. Most of them are pretty well understood; but the exact amount and kind of interference with another man's means of livelihood, by acts not otherwise distinctly wrongful, which will entitle him to legal redress, is extremely difficult to settle; and although there has been an important series of decisions in the House of Lords and the Court of Appeal since the first edition of this work was published, it cannot be said that we have yet arrived at a complete solution.

There is some trouble in drawing the line between the law of trespass and other wrongful interferences with rights of possession and property on the one hand, and the law of property itself on the other hand. In principle we have questions like these:-Do such and such acts amount to trespass? When may an officer of the law break open doors? Is a licence in such and such terms, or an order from one's master in such and such a course of business, a justification or excuse for

1 For the leading ideas of this arrangement I owe much to a series of articles published many years ago by Mr. Justice O. W. Holmes in the American Law Review, the matter of which was only in part embodied in his work on the Common Law.

2 We get some curious contrasts. Honest and even reasonable belief is of itself no excuse for defamation; but in matters of business there is no general duty to use any degree of prudence at all in making assertions intended for other people to act upon.

entering or remaining on land, or dealing with goods? And such questions are obviously distinct from the question to whom the land or goods belonged. They assume, not that any man is bound to know exactly what is his neighbour's, or which of his neighbours is the owner, but that he is bound to know what is not his own or subject to any right of his. But in fact the two kinds of dispute can often not be separated, and the historical and technical peculiarities of our law have likewise contributed to create a more or less debateable borderland. Text-writers on the law of property have so much else to do that they have generally confined themselves, as far as possible, to what is clearly on their own side of the border.

On

In the present arrangement the law of torts stands next the criminal law, and in fact they have much common ground. Many wrongful acts are both criminally punishable and the subject of civil remedies. the other hand, the law of torts, as will shortly be seen, is rather widely separated from the law of contracts. This is contrary to the Roman and Continental usage, which groups them together under the category of Obligations; that usage is to be respected on its own ground, but I cannot see that it has any particular convenience for the purposes of the Common Law. Not much can be found, I think, that is common to our law of torts and of contracts, and not common to other branches as well. Certain rules relating to the measure of damages, and a limited part of the rules as to negligence, are the only ones of importance, excluding such as really belong to procedure, that I can think of as answering this description. The Continental method is correct from its own point of view, but it tends to obscure the practical importance of the distinction between rules of conduct imposed on parties by the law without regard to their intentions, and rules which the declared will of the parties has made the law for their case. Broadly speaking, the law of torts deals with the former class of rules, the law of contracts with the latter.

The next class of civil duties and rights, in the descending order of generality, seems to consist of those concerned with possession and property. Within this class rights are more conveniently put in the front than duties. In fact the law of property, in the special sense, is to a great extent the law of title; it is concerned mainly with the relative rights of owners, unlimited or limited, incumbrancers, and so forth, in or over a given subject-matter, and with showing how they are constituted. The duty of mere strangers to respect ownership in all its forms is taken for granted. Under this head we deal with possession and the rights arising from it; with the tenure of real estate and interest in chattels real; and with interests, absolute and qualified, in personal property. It is admitted, I think, by most recent workers in this field, that in the Common Law the idea of possession is distinctly prior to that of ownership, and even at this day is the more important of the two; but for the present purpose this matters little. Our classification of "real" and "personal" property is peculiar. As it stands, it coincides only in part with the division into "moveable" and "immoveable" which is recognised in the law of nations and by the municipal laws of all or nearly all countries, including British India, in which the Common Law does not prevail. Originally founded on the same natural difference of things, it has become, through a series of historical accidents, not merely artificial but arbitrary. A summary