to all the people, as distinguished from those of particular classes 72.

It is perhaps not without significance that the expression folc-riht first occurs, so far as I can trace it, in a statutory enactment, under the somewhat underrated monarch (Edward the Elder) to whom almost more than to his illustrious father the first consolidation of the kingdom of Britain is due. But the consolidation is, in the case of fole-riht, rather one, as it seems to me, of ranks or classes than of districts.

Folc-riht then, commun droit, common right and common law, have running through them all the ambiguity, between right and law, which affected the Saxon riht and lagu, the French droit, and so many other juristic terms of similar signification from which our modern right and law are happily free. Subject to this ambiguity, their meaning is, I presume to think, clear enough. They were what jurists call general, universal right, or the law of general, universal rights, as distinguished from the law or rights of special classes.

66

Modern meanings of common law." As then the idea, the name, and the thing itself descended in its first origin from the pre-Norman period; and as that part of it which was really statutory ceased to be regarded as such under the new régime; common law came to be our ancient customary law and our customary law in general, as opposed to the only statutes henceforth recognised by

72 E.g. the Thegenes lagu of the Rectitudines, Thorpe 1. 432; the thegenriht of the 'Ranks.'

In the difficult passage as to the scale of wergilds on folces folc-rihtes (sic) be Myrena lage (Thorpe 1. 190), the compound seems to have the meaning of law generally, while the national character of the law is indicated by the repetition of folces.

73 Freeman's Norman Conquest, 1. p. 58.

our courts. As opposed to the comparatively modern "equitable" jurisdiction introduced by the Chancellors, common law seems to mean simply the older body of rules, or those administered by the older courts.

76

The rarer antithesis of common to criminal law arises obviously from the distinction of common pleas and pleas of the crown, which is as old as Magna Carta". Earlier, the two branches were called civil and criminal 7. Whether the true idea of the pleas of the crown was, that the sovereign was the plaintiff ", or merely had a special jurisdiction, I cannot but think that the common pleas were those which were open to all subjects".

Conclusion. Observance with our Gothic ancestors, in witoth; immemorial custom with our Saxon ancestors, in æ, appear to be their first ideas of law. In the case of the former our knowledge begins and ends with one literary work in the case of the latter we can trace a developement of institutions and ideas not very dissimilar from that appearing in Greek phraseology. The prospective rules to guide judicial decision (domas) resemble the Greek OéμOTES, while the more general asetnissa may be compared with the θεσμοί. The name which has, with us moderns, supplanted the rest, the northern lagu, if treated, in England, as equivalent to the native dom, may have somewhat lost its original signification. But that signification must have been

74 Stephen's Blackstone Int. § 3, ad finem. It is perhaps only as a Court of Equity that the Chancellor's Court is later than the others.

75 Cap. 11, Communia placita non sequantur Curiam nostram.

I do not know that the term Pleas of the Crown can be traced earlier than Britton. Hobbes, I find, gives the same explanation of Common Pleas. Leviathan, pt. 2, chap. 23, p. 125.

76 Glanville 1. 1.

77 See Hale, P. C. Prooemium.

78 Bracton 3. 5. fol. 105.

79 See contra, Coke on Magna Carta, cap. 11. 2 Inst. p. 22.

rather one of custom, than, as in the domas and Oéμiores, of ordinance. There is, moreover, one point, hitherto only glanced at, in the juristic phraseology of Teutonic nations, which if not exactly peculiar to them is at least so much more strongly marked in their case than in others that it deserves a special notice. I mean the subsisting designation of law among our German brethren, and its probable former designation among our own ancestors, by the peculiar term of moral approbation, right. This word with its well-known antitheton will form the subject of the next chapter.

CHAPTER VI.

EARLY NAMES OF LAW: RIGHT AND WRONG.

I FIND it necessary to complete my consideration of the unconscious definitions of law contained in its early names by some notice of two well-known words belonging to the Teutonic group of language—Right and Wrong. They claim our attention, partly because, as I have said above, the former was once with ourselves, and still is elsewhere, used in the sense of law; partly because a most misleading explanation of both is bound up with Austin's definition of law.

(short

Austin's Right and Wrong. Of Right in general, right the adjective, or Right the substantive without an article, Austin says, it is true, very little. He generally means by the word right, when he does use it without an article, an abstract expression embracing all rights, or, a right defined in the most general manner1. But in one very short fragmentary note, for the number and magnitude of moral problems involved, he derives rectum from rego, recht from “rechten or richten (dirigo)," right from "some Anglo-Saxon verb which comes with dirigo from a common root," just from jussum2. Just and right, according to the same note, signify that which is commanded; aequum and Sikatov that which conforms to a law or rule. Wrong is wrung, the opposite of rectum.

=

1 Austin 16, p. 408; 17, p. 412; 18, p. 419.

2 Id. 18, p. 421, note 68.

Some expressions, for instance the words last quoted, point to the truer view of these words wrong and right: but, on the whole, Austin evidently takes right, in point of derivation, to be that which is commanded. And, in this way, he in fact accounts for an occasional confusion in the use of the word, between the something commanded, i.e. the obligation incumbent upon the party obliged, and the more ordinary sense in which a right, from his point of view, is used, to denote the position of the party towards whom that something is commanded3.

Blackstone's Commentaries contain little attempt either to define Right or to trace the origin of Rights. Almost the only passage where he speaks of Right in the abstract is the definition of "municipal law" as commanding what is right and prohibiting what is wrong. As to the origin, therefore, of Right, he appears to agree with Austin: but he practically drops the subject, and speaks only of particular rights and wrongs without further definition, except stray statements to the same effect as that just quoted.

Perhaps the main practical objections to Austin's theory of law and right in general, lie in the absurd logical results at which he arrives with reference to Constitutional Law and the somewhat parallel case of International Law. The meaning, too, of particular rights and wrongs, and the deduction of the ideas thus indicated from that of right and wrong in general, has, in its correct or incorrect apprehension, a practical bearing upon the desirability of this or that classification or subdivision of law. Such classifications are nugatory if merely depending on the speculations of philosophers: they

3 L. c. in last note and Lect. 24, page 481, note.

4 Int. § 2, p. 53.

5 E. g. Comm. 1. 1, p. 122.

So too Markby, § 104, p. 49, passes by right in the abstract as highly difficult to define, and confines himself to rights in particular.