would be ruined, unless their neighbours indemnified them. This is accomplished by spreading the annual loss over the thousand. They pay their subscriptions in the form of premiums; the person who collects the subscriptions and pays the losses is the insurance company. No doubt, there may be gambling in insurance, but there is often gambling in stocks, or grain, or iron, or anything else; and yet we do not class the transactions of a wholesale merchant among" aleatory contracts." There is great risk in shipping a cargo across the Atlantic, for it may be lost, or in selling goods on credit, for the purchaser may become bankrupt, but that does not entitle us to stigmatise the merchant as a gambler. If he is wise, the ordinary profits of his trade will enable him to meet such losses; in other words, he will spread it over the general community in the persons of his customers, as is done by the insurance company.

The classification of contracts is a matter of especial difficulty. It is a matter that belongs to the theory of positive law, and yet most codes possess the most illogical classifications. They may be classified as to their form, as in the Roman code, but forms are of no importance in the philosophy of law. All contracts are ultimately consensual. The weakness of this division is shown in the Roman texts, which added innominate contracts, or an et cetera, which was larger than the principal classes. The division of onerous and gratuitous is useless, because the two classes are identical in all respects, Q

except as to "consideration." The idea of primary and secondary is also accidental from a philosophical point of view. An obligation is an obligation whether it refers to a preceding one or not. Thus marine insurance is a primary contract. The insurance of a person's honesty is a secondary one, because it is a contract of surety. If we try to classify them according to their objects, it is impossible, for this implies an enumeration of all the possible modes of human activity. According to their objects, they may be reduced to (1.) contracts as to the person, and (2.) contracts as to external things. Any further classification involves an enumeration of the ways in which the body or mind can be made subject to the will of another for a temporary purpose, i.e., without absolute alienation of the will and personality of the subject, and it involves also a complete list of the external objects which may be matter of an obligation. In modern practice the variety of contracts is legion. In other words, freemen legislate for themselves by contract. They establish thereby a particular law for the regulation of their affairs.

And now I would notice shortly the extinction of obligations under contract. It is obvious that they may be extinguished by (1.) fulfilment, or (2.) by a counter contract, or (3.) by the death of the obligant, where the contract is purely personal to him, or (4.) by some cause which makes fulfilment impossible, without the fault of the person bound. In all such cases one or more

of the essential moments of the notion are withdrawn, and the whole relation falls. In like manner, a contract may be terminated by operation of law. Here the state withdraws its recognition of the legal character of the debt. This is illustrated by the various prescriptions. Putting the matter generally, the law presumes a person to be free, and so it presumes that all contracts which are not enforced in due course, are discharged or were never entered into. This presumption may be absolute, or it may be only prima facie. For example, in the triennial prescription of tradesmen's accounts, the law presumes that the contract was never entered into, or, if it was, that it has been satisfied, and that the person is thus free unless he admits the existence of his obligation. The English Statute of Limitations absolutely that the debt is discharged.

presumes

Another mode of extinction is bankruptcy. Here a person owes debts to a greater amount than he can satisfy at the moment they are due. If his creditor agrees to give him time, or to take a composition, there is a new contract, and the law will recognise it as such. But a bankruptcy law is a declaration that a partial payment must be taken for the whole. This is for the benefit of the debtor, and, through him, of the state itself; for a person overwhelmed with debts which he will never likely be able to pay, is far from being freefrom realising his personality as free-will. The law, therefore, while endeavouring to pay the creditors as

much as possible, gives the insolvent debtor freedompower to make a fresh start in life. The contracts of the bankrupt are terminated by the law withdrawing its recognition. A proper bankruptcy law, therefore, strives at once to protect the debtor and secure the creditors, but punishes fraud, instead of dealing with all insolvents alike in point of form. We must, therefore, recognise in the legislation of 1880 and 1881 as to small debtors another step in the direction of freedom of the "person.'

143 and 44 Vict., cap. 34, and 44 and 45 Vict., cap. 22.

LECTURE IX.

THE COMMUNITY OF STATES.

We have now seen that what at first sight appear to be the merely physical relations of individuals in the family give rise to personal rights. When the state becomes conscious of its own existence, and important enough to recognise the individual, it enlarges enormously those rights, and affirms his personality, even against the paterfamilias, if necessary. Relations with other individuals outside of the family and within the state extend the idea of person, and create the notion of property, apart from the family property. It is through property that men contract with each other, and it is in contracts that they find the highest realisation of property. The filiusfamilias gets a peculium. The mere fact of the peculium being recognised by the law shows the interference of the state in creating the notion of property in the time of the Romans, as the passing of the Married Women's Property Acts shows it in our own day. In like manner, the high organisation which we see reflected in police acts, education acts, poor law acts, and so forth, is due to the fact of men co-existing in circumstances only slightly removed from those of parent and child, and husband and wife.