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Law of Status. Mr. Holland somewhere indicates what I imagine to be the true arrangement of this division of Law, and that is, that each topic, each chapter which deals with a special sort of abnormal personality, must be sub-divided as far as possible in the same way as the general Law, so that the exceptions which affect each status may be found in a corresponding order with the rights to which they are exceptions. In some cases, however, a slight deviation from this arrangement will be found convenient. Thus in those topics which deal with status which consists in the mutual relationship of two persons, as, for instance, Husband and Wife, it will,I think, be best first to enumerate the rights which each of the persons enjoys either over or against the other, and then to proceed with an account of the disabilities and privileges affecting them respectively. The following table will explain my meaning :—
I. Investitive land Divestitive Facts (i.e., Law of
II. Rights in rem of husband over wife.
(a.) as to rights in rem. IV. Special Law of wife 3 (b.) as to rights in personam. (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 VVife in this part‘of the Code. Iam 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 VVife 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 theLaw, 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.
AT the Meeting of the Association for the Reform and 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. Spimll (L.R. 5 C.P. 542), Vaughan v. Weldon (L.R. 1o 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 thejurisdiction 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 founded, as all other judgments of their courts are founded, upon the fundamental ethical rules of right and wrong; and they would consider it a slight upon the intelligence and integrity of their courts for a foreign court to refuse to recognise and enforce such a judgment.
I think I am right in saying that at the -present time the English courts would not pay this respect, to which I think the judgment is entitled.
A most incomprehensible doctrine on this subject has taken possession of the judicial mind in England, more especially as regards judgments obtained in France. The idea seems to be that the French system not only allows, but encourages a man to make use of the courts in that country to obtain a judgment against a non-resident alien, without even so much as having a cause ofaction against him.
Equality among States is the principle upon which the whole fabric of International Comity has been built. To assert that any State is incapable of making wise and just laws for the protection of its subjects, not only as between them and their fellow-citizens, but also as between them and the citizens of sister States, is at once to lower it from the high standard to which that equality has raised it.
Between some continental nations Treaties for the mutual recognition and enforcement ofjudgments have been entered into; but, as far as I can ascertain, the subject of assumed jurisdiction has not been dealt with in a comprehensive manner.
England at present has no such Treaties with any foreign State; she l1as made however a step in the right direction. By noticing this we may perhaps pave the way towards further legislation in the matter and towards laying the foundation of a unanimous international opinion, to be hereafter expressed in Treaties, as has already been done in the case of Extradition.
The “Judgments Extension Act” was passed in July,