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The principle of Austin's division is, for the purposes of a Code, greatly to be preferred. It is true that the place where the line must be drawn cannot be determined by any such precise test as that -given by Mr. Holland, but, as Austin says, “the distinction is not useless, because it is not precise," and " it exists in every legal system ;” that is to say, in every legal system “there are rights which concern specially comparatively narrow classes, and which can be detached from the bulk of the system with little or no inconvenience.” I would then adopt as the division corresponding to Mr. Holland's Normal and Abnormal Law that of General Law, i.e., the Law affecting ordinary members of the community, and Special Law, i.e., the Law affecting (1) special classes of persons, whether as considered in their general legal relations, or in their relations with certain persons, and (2) special classes of things. The idea that this department of the Law should include the Law of special things, as well as persons, is due to Bentham, who indicates the topic of losses as a fit subject for what he calls particular Law.
The remaining great sub-division adopted by Mr. Holland is the well-known one of Rights in rem, or rights which are available against the whole world, and Rights in personam, or Rights which are available against ascertained individuals. It is unfortunate that no English terms can be devised to express this important distinction, but as yet this has not been done, and most jurists seem to agree with Mr. Holland that "these terms, though not perfectly satisfactory, are perhaps as good as any substitutes which could be suggested for them."* The terms were not in use among the classical jurists, but were fashioned by the Civilians of the Middle Ages, after the classical distinction between actions in rem and actions in personam. It seems to me that a far
* For Austin's preference of these terms to the possible subtitutes for them, see Jurisprudence, pp. 987-992.
preferable nomenclature would be the Law of Property and the Law of Obligation.
Chapter X. is entitled, “Rights at rest and in motion,” terms invented by Mr. Holland to signify the difference between rights considered as to their nature and scope, and rights considered as to the causes which originate and extinguish them. I entirely agree with him that these causes should not be treated as a separate topic, but that each right should have an account of its causes attached to it.
The sum of the advantages which the enjoyment of a right confers is called by Mr. Holland its “orbit”-("extent” is a more serviceable and equally expressive term)—and an act which interferes with the enjoyment of these advantages its "infringement.” As he points out, a knowledge of the “ orbit ” of a right implies a knowledge of the Acts which are infringements of it, the one being precisely correlative with the other.
Passing on to rights in motion, Mr. Holland adopts the nomenclature of Bentham, who called the Facts which give rise to, extinguish, and transfer rights respectively, “ Investitive,” “Divestitive,” Translative,” and collectively
Dispositive,” thus supplying a well-known want in our legal terminology which only has a name the familiar "title," for a fact which gives rise to a right. Brentham's nomenclature however is, as usual, cumbrous, and not likely to find its way into ordinary use. It would surely be simpler to speak of “Modes of acquisition,” “Modes of loss,” and “Modes of transfer."
The remaining part of the chapter deals briefly with “singular” and “universal ” successions, including the most important of all“ universal successions," testamentary and intestate successions. In the formation of a Code one of the most difficult questions will be to determine the proper position of the two branches of universal succession represented in our Law, that to the rights of a living person,
or “bankruptcy," and that to the rights of a deceased person. It is not quite clear what position Mr. Holland would assign to them, but apparently he would consider them as “Dispositive facts” of general application to rights of ownership,* and therefore to be put at the end of the topic of ownership. But considering that the peculiar feature of universal succession is that it transfers every kind of antecedent right, rights in personam as well as rights in rem, and considering, too, the great extent of the topic, it would, I think, be better to follow the plan adopted by Austin and by Mr. Hunter in his “Roman Law," and make " universal succession " a separate division following immediately after the division of "Rights in personam,” treating it as a sort of appendix to the Substantive Law of General Rights. The difficulty would thus be avoided of having to speak of the transfer of rights arising from contract, before any account had been given of what these rights were, or even any mention had been made of the word "contract." Code Napoléon, the framers of which followed blindly the order of the Institutes without in the least understanding it, makes succession the first title of Book III, which treats of modes of acquiring property; then follows “Donation," then contracts in general, then the various kinds of contracts, and lastly, Prescription, including Possession.
Dispositive facts,” rights in rem, and rights in personam are jumbled up together in hopeless confusion. In spite of the many merits of the French Code, its arrangement is so ludicrously stupid that it is doubtful whether the only possible title of the first Bonaparte to the gratitude of Frenchmen is not after all somewhat of an illusion. The Austrian Civil Code deals with succession as belonging to the division of Rights in rem, the last chapters of that division being occupied with it.
* Page 143.
I now come to the second part of Mr. Holland's book, which deals with Private Law. And first of antecedent rights in rem. These are divided by Mr. Holland into six classes, a division which I cannot commend. As I pointed out before, he seems to have lost sight of, or to have rejected as valueless, the classification of rights in rem according to the nature of what he calls the object of the right. Now, the object of a right may be either a thing or a person, or there may be no object at all. The right to personal safety, the right to reputation, cannot be said to be exercised over an object, for the “body” or the “ character ” of the person clothed with the right can hardly be considered as something apart from the person. I should prefer, therefore, to make one class out of Mr. Holland's first, third, fourth, and sixth classes, and call them by some collective name. What this name should be is difficult to determine. A possible name is “ Personal rights,” but, apart from other objections, there is this, that it bears too much resemblance to the term “Rights in personam," and is, in fact, used by some writers as a substitute for it. Mr. Poste, to avoid this objection, calls this class of rights “ Primordial,” a term which, as well as the terms “inborn," “natural," and Blackstone's “absolute,” corresponds to the “Urrechte” of the German writers, as distinguished from “ erworbene Rechte,” or acquired Rights. Mr. Holland says, as to this, that “the line between the two classes of rights is so variously drawn, and must always be drawn subject to so many qualifications and reservations, that the distinction is of little value." It appears to me, however, that there is a very marked distinction between those rights which every person who does not labour under any incapacity enjoys under all circumstances, and those which he cannot acquire until he has performed some juristic act. The only title to the former class of rights is the fact of being born. The characteristic mark of the second of Mr. Holland's classes,
viz., rights to the society of and control of one's family and dependents, is, that the object over which they are exercised is always a person. As Austin points out, all these rights belong to the Law of Status.* Accordingly, in my Code, instead of occupying the position assigned to them by Mr. Holland, they would appear as the first subdivision of the Law of Status.
Mr. Holland is, I think, correct in classing patents and copyright with rights of property. Austin mentions them as instances of rights which have no specific object, but though it is true that there is no physical object, such as land or a house, over which these rights are exercised, there is an intellectual object which it has been found convenient to treat upon the analogy of physical objects. Thus we talk of "
owning” a patent as well as of “ owning” a house, and a copyright is described as “property” with equal correctness as a flock of sheep. Moreover, as this class of rights cannot by any manner of means be called “ natural” or “primordial,” to place them in the same division as rights which have no specific object would prevent our calling these rights by any name denoting their inherence in every normal person. Perhaps the most appropriate place for them would be at the beginning of rights of ownership, thus treating them as a transitional stage between rights which have no specific object and rights which have a physical object.
I also fully agree with Mr. Holland in treating “ Fraud " as an infringement of the right to immunity from fraud which every person enjoys. This right, as Mr. Holland points out in a note, was first established in the leading case of Pasley v. Freeman, decided in the Court of King's Bench in 1788.
Another point to notice in this chapter is the treatment * See, for this, and also for the classification of rights in rem generally, Austin's Jurisprudence, pp. 814.817.