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of a “life-estate” as a personal servitude. This is strictly correct, for a life-estate is exactly the same as the Roman “ usufruct," and is a form of limited ownership. The creation of life-estates has become such an integral part of our real-property system, that not only laymen, but even lawyers look upon this tenure as quite a normal species of ownership. A classification, therefore, which calls attention to the fact, that a life-estate is ownership in an abnormal and exceedingly limited state, and therefore only to be allowed under certain circumstances, is warmly to be welcomed by all advocates of " free land.”
The twelfth chapter deals with the other branch of antecedent rights, rights in personam, those which avail against ascertained individuals. These rights, Mr. Holland points out, may exist in two ways, either by the agreement of the parties, or from some facts to which it has pleased the Law to affix similar results. He therefore divides them into two classes, rights ex contractu and rights ex lege, the term "ex lege" being substituted for the Roman " quasi ex contractu.” The latter class of rights, which is taken first, is further sub-divided into i. the Domestic ; ii. the Fiduciary; iii. the Meritorious; and iv. the Official. I thoroughly agree with Mr. Holland that the rights of husband and wife are to be reckoned among those which arise by operation of law rather than out of contract. The few words which he says on the subject are so pertinent, that I will quote them. " The matrimonial status is indeed entered upon in pursuance of an agreement between the parties, accompanied by certain religious or civil formalities; but its personal incidents are wholly attached to it by uniform rules of law, in no depending upon the agreement of the parties, either at the time of the marriage or subsequently.” I prefer, however, as I said before, to treat the law of husband and wife, as well as that of the other domestic relations
enumerated by Mr. Holland, as part of the Law of Status. It is in fact, one of the characteristics of Status that the main rights and duties of the persons affected with it are defined by the law, and that though they themselves can to some extent vary them by agreement, they cannot deviate from the general outlines.
For this reason I should also transfer to the Law of Status Mr. Holland's second sub-division of rights in personam, viz., Fiduciary rights. In Roman Law trusts could only be created by an act of a testamentary character, and they, therefore, naturally form part of the Law of Universal Succession. But in English Law where they can be created inter vivos as well as by testament, this would not be a convenient or a proper arrangement. The only alternative seems to be between the place assigned to them by Mr. Holland and the one I have suggested. It is true that the mutual rights of trustee and cestui-quetrust depend considerably upon the agreement entered into between the parties themselves, but the main features of the relationship, the broad principles upon which it rests, are a creation of the Law.
Mr. Holland's third sub-division, to which he gives the name of " Meritorious,” is unimportant, and is very slightly represented in English Law, I would therefore put it as an appendix to the topic of contracts for service. The title which gives rise to this class of obligations may in fact be accurately described as a quasi-contract for service.
The fourth and last sub-division, that of rights against officials, is more difficult to dispose of. But, seeing that every right against an official implies a corresponding duty on the part of the official, I think they may be conveniently treated under this head. Now, the duties of most officials, such as bishops, or sheriffs, are matters for Public Law, while the duties of others, such as shipowners, will be found in the Law of Status. Lords of manors, again,
have their duties defined under the topic of ownership. It may be objected that this arrangement splits up and distributes among different parts of the Code a class of rights which ought to be kept together, but as few persons would, for practical purposes, want to ascertain their rights against more than one class of officials at once, no inconvenience can arise on this score.
I have thus disposed of the whole of Mr. Holland's division ex lege, a division which, without adopting Austin's criticism of this term that “all rights arise by operation of law," I venture to think is faulty, and for this reason, that several of the sorts of contracts which Mr. Holland enumerates present the very feature which he would make the distinguishing mark of the first division. Thus in agency, bailment, and partnership, the rights of the parties, though, to a great extent they depend on agreement, are also defined by the Law. The Romans called obligations of this sort quasi ex contractu, apparently for no other reason than that they did not arise either from contract or from wrong-doing. They also spoke of them as arising ex variis causarum figuris. It is, therefore, probable that they looked upon them as a sort of supplementary class of miscellaneous obligations to which it was impossible to give a definite
Two of them, which gave rise to rights against a tutor and curator respectively, would seem to belong to the Law of Status, three more were intimately connected with ownership, another was the obligation of a heres to a legatee, while to only two, the topics of money paid under a mistake, and voluntary performance of services (Negotiorum gestor), can the name of quasi-contracts with any accuracy be applied.* The use, however, of this term shows that at any rate it was not the intention of the Roman jurists to make a radical division of obligations into those which arise
* Some useful notes by Austin on the subject of quasi-contracts will be found at pp. 944-948 of his Jurisprudence.
from contract and those which do not. I prefer, then, to make rights ex contractu occupy the whole field of rights in personam, so that the two terms will express the same class of rights though describing them from different points of view, the former term having reference to the origin, the latter to the scope of the right.
After a brief and lucid exposition of the nature and elements of a contract generally, Mr. Holland proceeds to classify contracts. He adopts, as his radical division, that of “principal” and “accessory,” i.e., those which are entered into without any ulterior object, and those which are entered into only for the better carrying out of a principal contract. Principal contracts he sub-divides into six classes according as this object is, i. alienation ; ii. permissive use; iii. marriage; iv. services; v. negative service; vi. aleatory gain. The word “ permissive ” before use is, I think, unnecessary. Partnership should form a separate class, but, as I said before, it is a question whether this is the proper place for it. Company Law, which is merely an extension of Partnership Law, is certainly matter for the Law of Status, and it might be convenient to put partnership, which is, in fact, a status, in the same place. All modern Codes, however, treat of partnership as a special class of contract. The term “negative service " is obscure; as the importance of this topic is solely derived from the fact that the Law gives no effect to certain contracts of this sort, the proper place to treat of them will be under the head of unlawful contracts, an important topic which Mr. Holland dismisses rather too summarily (p. 177). The term “aleatory gain” is open to the charge of being fanciful. Why should not the simple term “wagers" be used, and the important topic of "insurance” form a separate sub-division ?
Mr. Holland enumerates, as instances of "accessory' contracts—a more familiar term is “collateral”--surety
ship, indemnity, pledge, warranty, ratification for further assurances. There is nothing, however, on this head which calls for notice.
The chapter concludes with the consideration of the transfer and extinction of contracts. In a Code I imagine that the proper method would be to treat, under the topic of “contracts in general,” the modes of transfer and extinction applicable to all contracts, and then at the end of each sub-division to notice the modes peculiar to the special sorts of contract comprised in it.
Chapter XIII. brings us to Remedial Rights and Wrongs. Mr. Holland's explanation of the differences between torts and crimes is, I think, the correct one. A tort is a wrong done to an individual, a crime is a wrong done to the whole community. In the former case the person of inherence is an individual ; in the latter case the State, as the representative of the community. Austin, it will be remembered, insists very strongly that the sole difference between torts and crimes is a matter of procedure, the remedies for torts being pursued at the discretion of individuals, for crimes at the discretion of the sovereign. But is not the duty of punishing crimes assigned to the sovereign or State for this very reason, that in the case of crimes the State is primarily the injured party?
I have already discussed the propriety of Mr. Holland's division of Law into “normal” and “abnormal." It is with the latter kind of Law that the fourteenth chapter is occupied. The distinction between “ artificial” and “natural” persons is adopted as the main sub-division, and then the various "abnormal” persons, with the chief peculiarities affecting each, are briefly mentioned. There is nothing on the question of form to notice here, except that it is doubtful whether the Law of a State, considered as a quasi-private person, which Mr. Holland treats under the head of Public Law, be not rather matter for the