The Classification of Law Code Civile of Canada has yet been tolerably well arranged. Not one shows any conception of the mutual relations of the great depart ments of law. Not one is governed by the logical principles of dichotomy, which though it may not always be visible, yet should underlie and determine the'main features of any sys tem of classification.‘l
The utility of primary divisions as means of exposition is not generally
appreciated because no detail treatment of rules occurs under them in the body of a work, but they have expository value nevertheless by way of showing
interdependence and relation. Why and how have jurists recognized
difierent primary divisions? The an swers to this inquiry are several: First, because of differing conceptions of the leading term which expresses the subject, that is, Law or Rights, or Duties, or
Obligations, or beyond this difierent conceptions concerning the primary divisions of Public and Private, or Persons, Things, Substantive and Ad
jective Law, Primary and Sanctioned Rights, etc. A second reason for the confusion is found in the natural tendency to confusion during the evolution of twenty
centuries, occasioned by the necessity for using old terms as to matters the nature of which has gradually changed. One is never at a loss to support any opinion by a corresponding opinion of
some philosopher, jurist or theologian of some period in the world's history. The safeguard against being misled
is to confine the discussion to one system of law and one epoch, using all
systems and all history as lights to illumine the origin of ideas the evolution of institutions and the present meaning of names by which each is designated. Thus Amos says :— The term jurisprudence, like every other important term which takes its hue from the '1 Holland, Forms of Law (1870).
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whole complex life of mankind, is ever needing to be defined afresh in the ever new language of each succeeding age.n
Dr. Hammond illustrates this idea very clearly in speaking of the concep tion of “status":—— It must always depend on all the conditions of the law of a particular epoch, what may properly be treated as a status, with rights and duties differing from those of the normal person who is the subject of all the rights treated under the law of things. The change able nature of this conception is now so generally recognized that it has become almost a common place to say that one great feature of modern law has been its advance from the form of law of status to that of law of contract.
Hale treats ancestor and heir,
lord and tenant, lord and villain as examples of status in the law of persons." Blackstone omits them. Each no doubt found reasons for his course in the contemporary law, yet both had the same general notion of the division between laws of persons and laws of things. If Blackstone rewrote his com mentaries today, he would no doubt omit master and servant as well. The division is by no means an arbitrary one, or it would not have the importance that has been attributed to it; but its merit in each appli cation lies in its being conformed to the law of the time, and clearly defined with reference to that law and to that only."
It is necessary to bear in mind that the attempt is to suggest a practical and logical classification of the mass of rules expressed in constitutions, statutes and- decisions as they now 1' Amos’ An English Code, 206. “3 And rightly according to the law of his time. Pollock says: "What is characteristic of ‘the feudal period‘ is not the relationship between letter and hirer, or lender and borrower of land, but the relationship between lord and vassal. or rather it is the union of these two relationships."-Pollock& Maitland's Hist. of Eng. Law, vol. 1, p. 66. Challis says: "Tenure was so far associated with the status of a free man, that the grant to a villain by his lord of an estate to be held thereby, or the grant of an estate not falling below the standard quantum would operate as an enfranchise ment. From its connection with political status, the common law tenure acquired the name free or {rank tenure and the common law estates were called estates of freehold."-—Chal. Real Property. p. 6. 2‘ Sandars' Justinian, Introduction, p. li.
