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ship, indemnity, pledge, warranty, ratification for further assurances. There is nothing, however, on this head
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
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
Law of Status. Mr. Holland somewhere indicates what I
LAW OF HUSBAND AND WIFE.
Marriage and Divorce).
s (a.) over the person.
( (a.) as to rights in rem.
( (c.) as to procedure. The difference between my method and Mr. Holland's is, that he would only put the first two sub-divisions of the special Law of the Wife in this part of the Code. I am aware that his arrangement is more logical and scientific, but, as I said before, for the practical purposes of a Code, logic must sometimes give way to convenience, and it is of the greatest possible convenience that the whole Law of Husband and Wife should be found together. Moreover, Mr. Holland has omitted altogether the important topic of Marriage and Divorce, which, as treating of the facts which give rise to and extinguish this status, should surely appear at the head of the title or chapter devoted to it.
Mr. Holland's discussion of Private Law concludes with a short chapter on Adjective Law or the Law of Procedure. I differ from him in thinking that it is better to make the division into Normal and Abnormal Law before making that into Substantive and Adjective Law, so that the special Law of Procedure affecting an abnormal person will be found with the rest of the special Law which concerns him. It is, of course, a mere question of convenience.
The remainder of Mr. Holland's book treats of Public Law, International Law, and the Application of the Law, but none of these subjects are dealt with at length. Probably an elaborate discussion of them did not form part of the author's scheme, but it would have been interesting if the subject of Criminal Law, which only fills half-a-dozen pages, had been more fully worked out, especially now that an improvement in the form of our Criminal Law is at hand, in the shape of a Criminal Code. My criticisms, however, which are purposely confined to the adaptability of Mr. Holland's classifications to a Code of Private Law, must here come to an end. I will only add that they are all advanced with the greatest deference to the high rank which Mr. Holland so deservedly holds in the field of Jurisprudence.
IV.-FOREIGN JUDGMENTS:-ASSUMED JURIS
DICTION OVER NON-RESIDENT ALIENS.
AT the Meeting of the Association for the Reform and n Codification of the Law of Nations, held in the autumn of last year at the Guildhall, I endeavoured to bring to the notice of the Congress the unsatisfactory condition of the existing rules as to enforcing and recognising a foreign judgment where the foreign court had assumed jurisdiction over a non-resident alien defendant.
Without wishing to re-capitulate what I have already written, I venture now to make some further remarks upon the subject.
It is remarkable that while Extradition has been, by means of Treaties, put upon a satisfactory basis between nearly all civilised countries, this branch of the enforcing of foreign judgments, assumed jurisdiction over alien non-resident defendants, which stands to Common Law in the same relation that Extradition does to Criminal Law, has received no attention whatever. Yet there can be no doubt that it is a point of international law unanimity of opinion upon which would greatly benefit the commercial relations between States.
The provisions of Order XI., Rule 1., are well known to every lawyer, how by that rule the English courts assume jurisdiction over defendants, parties to a contract wherever made, if the breach has occurred within the jurisdiction. The history of this provision and the cases which led to its adoption in the Judicature Acts are also, I presume, well known- Jackson v. Spitall (L.R. 5 C.P. 542), Vaughan v. Weldon (L.R. 10 C.P. 47). So too are the provisions concerning the service of writ or notice of writ out of the jurisdiction.
We may assume that the English method of citing a nonresident alien defendant to appear before its courts has been framed with great care, due regard having been paid to the fundamental rules of International Law.
The courts therefore acknowledge the necessity of protecting suitors resident within the jurisdiction against debtors who, for some cause or other, are out of the jurisdiction: and in the process they have adopted as between a resident plaintiff and non-resident defendant (whether citizen or alien) have recognised that greater favour must of necessity be shown to the former than to the latter.
A judgment pronounced under these rules in the defendant's absence may be presumed to be founded, as all other judgments are, upon the fundamental ethical rules of right and wrong: and it would be a slight upon the intelligence and integrity of our courts for a foreign court to refuse to recognise and enforce such a judgment.
I think I am right in saying that there is at the present time no country whose courts would pay this respect, to which I think the judgment is entitled.
Now, other countries as civilised and as far advanced in judicial knowledge as our own country, have also recognised the expediency of protecting resident plaintiffs against nonresident debtors, and the necessity of showing to those within the jurisdiction a greater favour than to those without.
These countries have also established in what cases they will assume jurisdiction over non-resident alien defendants; what process they will adopt to compel the attendance of such defendants before their tribunals; and what judgment shall be given against them in case of disobedience to the summons.
A judgment pronounced under these rules may be presumed (at least by the jurists of the country) to be