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which any person is conscious, but it is better, I think, to confine Fact to the external visible world.
The next chapter (Ch. IX.), deals with the important question of classification. After mentioning the most important of the various possible modes of dividing Rights and consequently Law, Mr. Holland declares himself strongly in favour of adopting as the radical division that between Public and Private Law, and in support of his method appeals to the authority of the Roman jurists. I am entirely of his opinion. Besides the objection which he puts forward to Austin's method of making Public Law a sub-species of the Law of Status, namely, that it is impossible with such a division to find a satisfactory place in the Corpus Juris for the Law of Crime, there is another very strong objection, which alone is sufficient to condemn it. Public Law is so vast in extent, and itself requires to be divided into so many sub-species, that to make it merely a sub-species is violating one of those first principles of classification enunciated by Plato, namely, that the first division must be made as much in the middle as possible, so as to divide the subject into two nearly equal portions. Moreover, for the practical purposes of a Code, the method which Mr. Holland advocates is so incalculably more convenient that I sincerely hope it will commend itself to our leading jurists.
And here I will call attention to what is almost obvious of itself, that in framing a Code, convenience is a matter of the greatest importance. The object of a Code is to make the Law accessible, and this object is frustrated if a person who wishes to ascertain what his rights are, has to be perpetually turning from one part of the Code to another. In order to avoid this, something of logical precision must sometimes be sacrificed. I mention this here because many of my criticisms on Mr. Holland's method of classification are not directed against their
scientific value, but are made merely on the score of convenience for the purposes of a Code.
The next division which Mr. Holland makes is that of Substantive and Adjective Law, the latter branch being more familiar to us under the name of Procedure, a name which should certainly be retained in a Code. This division I should prefer to make a step later. Mr. Holland further sub-divides into “Antecedent and Remedial Law," a nomenclature which is preferable to Austin's “Sanctioned or Primary, and Sanctioning.” In a Code, however, this division would be inconvenient; there it would be preferable to put the appropriate remedies for the violation of each Right at end of the chapter or section devoted to that Right. Thus the order for each title of the Code should be first a definition of the Right, then what Mr. Holland calls its “ orbit” and “infringement” (of which presently), then the Dispositive Facts, and lastly the Remedial Rights. This is the method adopted by Mr. Hunter in his “Roman Law."* Mr Holland's next step is to divide into Normal and Abnormal Law, a division which is meant to correspond to the wellknown Roman one of “Jus quod ad personas attinet,” and “ Jus quod ad res attinet,” and which has so foolishly been rendered by Hale and Blackstone's“ Rights of Persons" and " Rights of Things.” Mr. Holland thus explains the meaning of the Roman classification. Referring to the four elements of which a Right is composed, namely, Person of inheritance, Act, Object, and Person of incidence, he shows that the two extreme elements being a Person and the two intermediate elements a Thing (in the Roman sense of the term), the four terms may be reduced to two-Person and Thing. And thus the “ ”
Jus quod ad personas attinet ” expresses the law as to those variations in rights which arise from varieties in the Persons connected with them, while "the Jus quod ad res attinet indicates the department of Law which treats of such modifications of Rights as result from varieties in the objects and the acts, with which they are concerned.” “But,” says Mr. Holland, "the term 'Jus quod ad personas attinet' is also unfortunately used by the Roman jurists to express what the Germans call · Familienrecht,' i.e., to express, not only the variation in rights which is caused by certain special variations in personality, but also the special rights which belong to certain personal relationships; not merely, for instance, the legal exemptions and disabilities of infants and feme coverts, but also the rights of a father over his son, and a husband over his wife.”
* See Hunter s “Roman Law.” Introduction, p. xv.
Now it would be wholly foreign to my present purpose to enter here into a long discussion as to what Gaius meant by the term “ Jus quod ad personas attinet.” Various theories have been put forward on the subject by modern jurists, but I think it will be found that the conclusions come to by three of the greatest of them - Hugo, Thibaut, and Savigny -do not widely differ from one , another. According to Hugo “ Jus personarum” treats of legal capacity, or the three qualities which correspond to the threefold capitis deminutio." Thibaut says that it is concerned with the differences between persons, so far as they influence their rights and duties; while Savigny explains it to be Familienrecht or the Law of domestic relations. On one point, at any rate, these three great jurists are agreed, and that is, that the first book of Gaius' treatise has little or nothing to do with rights.
Mr. Holland mentions Savigny's view apparently with approval: I do not therefore understand him when he says that the term fus personarum is “ unfortunately also used to express what the Germans call Familienrecht.'” Gaius may have been unfortunate in the choice of his term, but it is surely unfair to blame him for using it to express the very thing which he intended that it should express. • The fact is that Mr. Holland first credits Gaius with a
distinction which he never entertained, and then finds fault with him for not logically adhering to it. When Mr. Holland speaks of the term “ Jus quod ad personas attinet " as expressing variations in rights, he shuts his eyes to the fact that in the whole of the first book of Gaius' Institutes the only rights mentioned are a few rights of the Latini and Dediticii, the right of a slave not to be killed or cruelly treated by his master, and the right of a person in mancipation not to be treated with contumely by his holders. As to the rights of a father over his son, a husband over his wife, and a guardian over his ward, of which Mr. Holland speaks, there is not one single word about them. In short, what Gaius meant by “ Jus quod ad personas attinet” is something entirely different from what Mr. Holland and others have imagined him to mean. Most of our English jurists have, I believe, been misled on this point by Austin, who had the disadvantage of writing before the appearance of Savigny's System, in which the meaning of Gaius' classification is so ably discussed. Austin quite correctly identified
Jus personarum" with the Law of Status; his mistake consists in giving too wide a meaning to Status. As Savigny conclusively shows in his System (Vol II., App. VI.), the strict meaning of Status as used by the classical jurists is the position of a man in his family. Austin, after declaring that there was no term in the whole Corpus Juris so difficult to understand as “ Status," finally arrived at the conclusion that it meant a set of rights and duties, capacities and incapacities, specially affecting a narrow class of persons ;
a meaning somewhat similar to that which it bears in modern legal phraseology, but which certainly was not what the Romans meant by it. Austin
* Austin, ii., p. 746.
also made the same mistake as Mr. Holland in overlooking the fact that the “ Jus personarum” does not treat of rights. And therefore, though he is consistent with his own view of the meaning of Status in making the Law of Status, or the Law applicable to special classes of persons, a radical division of the Law, it is a division which has nothing to do with Gaius' “Jus personarum,” which, as Savigny points out, is not strictly speaking a division of the Law at all, and as Mr. Hunter says in his “ Roman Law,” is not really opposed to the fus quod ad res attinet.
But I must not wander into the subject of Roman Law. The incorrectness of Mr. Holland's explanation of the Jus personarum has nothing to do with the value of his division into Normal and Abnormal Law for the purposes of a Code. The division is certainly a scientific one, and the term Abnormal satisfactorily expresses what Mr. Holland means by it, i.e., special or exceptional Law treating of the peculiarities which attach to certain classes of persons in all, or nearly all, their legal relations, and not merely in their relations with certain persons of incidence. Thus the rights of a landlord are not matter for Abnormal Law, because the only peculiarities which affect him are in relation to his tenant.
While, however, I admit the scientific value of the division, I do not think it would be convenient in a Code. To take the Law of husband and wife as an instance. According to Mr. Holland's arrangement, the man who wishes to ascertain the Law affecting himself and his wife must consult no less than three different parts of the Code. First, he must look under the head of rights in rem to find out what his rights are with regard to his wife against the world, then he must turn to rights in personam arising ex lege to ascertain what his rights are against his wife, and, lastly, he must refer to Abnormal Law for the special Law affecting his wife as a married woman.