Austin, Lectures on Jurisprudence, 5th ed., vol. 1, outline

‘Dum potentes aliud agunt, jurisconsulti eruditi, prudentes, bene animati, conferant capita privatim, cogitentque de jure constituendo, ut reddant certius quam nunc: posset is labor præludere principum auctoritati.’
—Leibnitz.

[In the original edition of ‘The Province of Jurisprudence determined,’ published in 1832, the following passage is inserted in the Preface.

In 1831 I published an Outline of my Course: Which outline, carefully corrected and somewhat enlarged, I append to the following treatise. For the following treatise is a detached portion of the Course: And unless the disquisitions composing the treatise be viewed with their relations to the subject and scope of the Course, and the arrangement which I give to the subject, their pertinence and importance can hardly be seen completely. To lighten to the reader the labour of catching the arrangement, I have placed, at the end of the Outline, an Abstract of the Outline itself.

As the Outline relates not only to the matter of the original Volume, but to the entire Course, it has been thought advisable to prefix, instead of appending it.—S. A.]

II. Having determined the province of Jurisprudence, I shall distinguish general jurisprudence, or the philosophy of positive law, from what may be styled particular jurisprudence, or the science of particular law; that is to say, the science of any such system of positive law as now actually obtains, or once actually obtained, in a specifically determined nation, or specifically determined nations.

32 Note.—Of all the concise expressions which I have turned in my mind, ‘the philosophy of positive law’ indicates the most significantly the subject and scope of my Course. I have borrowed the expression from a treatise by Hugo, a celebrated professor of Jurisprudence in the University of Göttingen, and the author of an excellent history of the Roman Law. Although the treatise in question is entitled ‘the law of nature,’ it is not concerned with the law of nature in the usual meaning of the term. In the language of the author, it is concerned with ‘the law of nature as a philosophy of positive law.’ But though this last expression is happily chosen, the subject and scope of the treatise are conceived indistinctly. General jurisprudence, or the philosophy of positive law, is blended and confounded, from the beginning to the end of the book, with the portion of deontology or ethics, which is styled the science of legislation. Now general jurisprudence, or the philosophy of positive law, is not concerned directly with the science of legislation. It is concerned directly with principles and distinctions which are common to various systems of particular and positive law; and which each of those various systems inevitably involves, let it be worthy of praise or blame, or let it accord or not with an assumed measure or test. Or (changing the phrase) general jurisprudence, or the philosophy of positive law, is concerned with law as it necessarily is, rather than with law as it ought to be; with law as it must be, be it good or bad, rather than with law as it must be, if it be good.

The subject and scope of general jurisprudence, as contradistinguished to particular jurisprudence, are well expressed by Hobbes in that department of his Leviathan which is concerned with civil (or positive) laws. ‘By civil laws (says he), I understand the laws that men are therefore bound to observe, because they are members, not of this or that commonwealth in particular, but of a commonwealth. For the knowledge of particular laws belongeth to them that profess the study of the laws of their several countries: but the knowledge of civil laws in general, to any man. The ancient law of Rome was called their “civil law” from the word civitas, which signifies a commonwealth: And those countries which, having been under the Roman empire, and governed by that law, still retain such part thereof as they think fit, call that part the “civil law,” to distinguish it from the rest of their own civil laws. But that is not it I intend to speak of. My design is to show, not what is law here or there, but what is law: As Plato, Aristotle, Cicero, and divers others have done, without taking upon them the profession of the study of the law.’

Having distinguished general from particular jurisprudence, I shall show that the study of the former is a necessary or useful preparative to the study of the science of legislation.⁶ I shall also endeavour to show, that the study of general jurisprudence might precede or accompany with advantage the study of particular systems of positive law.

Note.—Expounding the principles and distinctions which are the appropriate matter of general jurisprudence, I shall present them abstracted or 33detached from every particular system. But when such a principle or distinction, as so abstracted or detached, may seem to need exemplification, I shall also endeavour to present it with one or both of the forms wherein it respectively appears in the two particular systems which I have studied with some accuracy: namely, the Roman Law and the Law of England.

III. Having determined the province of jurisprudence, and distinguished general from particular jurisprudence, I shall analyse certain notions which meet us at every step, as we travel through the science of law. Of these leading notions, or these leading expressions, the most important and remarkable are the following:—

Legal Duty, relative or absolute. Legal Right. Legal Rights in rem, with their corresponding Offices; and Legal Rights in personam, with their corresponding Obligations. Legal Privilege. Permission (by the Sovereign or State), and Political or Civil Liberty.

Culpa (in the largest sense of the term), or The Grounds or Causes of Imputation: a notion involving the notions of Wish or Desire, of Wish as Motive, and of Wish as Will; of Intention, of Negligence, of Heedlessness, and of Temerity or Rashness. The grounds or causes of Non-Imputation: e.g. Infancy, Insanity, Ignorantia Facti, Ignorantia Juris, Casus or Mishap, Vis or Compulsion.

Note.—Though every right implies a corresponding duty, every duty does not imply a corresponding right. I therefore distinguish duties into relative and absolute. A relative duty is implied by a right to which that duty answers. An absolute duty does not answer, or is not implied by, an answering right.

Persons are capable of taking rights, and are also capable of incurring duties. But a person, not unfrequently, is merely the subject of a right which resides in another person, and avails against third persons. And considered as the subject of a right, and of the corresponding duty, a person is neither invested with a right, nor subject to a duty. Considered as the subject of a right, and of the corresponding duty, a person occupies a position analogous to that of a thing. Such, for example, is the position of the servant or apprentice, in respect of the master’s right to the servant or apprentice, against third persons or strangers.

Things are subjects of rights, and are also subjects of the duties to which those rights correspond. But, setting aside a fiction which I shall state and explain in my lectures, things are incapable of taking rights, and are also incapable of incurring duties.

34 Having determined the province of Jurisprudence, distinguished general from particular Jurisprudence, and analysed certain notions which pervade the science of law, I shall leave that merely prefatory, though necessary or inevitable matter, and shall proceed, in due order, to the various departments and sub-departments under which I arrange or distribute the body or bulk of my subject.

Now the principle of my main division, and the basis of the main departments which result from that main division, may be found in the following considerations.

First: Subject to slight correctives, the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be put in the following manner. Every positive law, or every law simply and strictly so called, is set by a sovereign individual or a sovereign body of individuals, to a person or persons in a state of subjection to its author. But some positive laws are set by the sovereign immediately: whilst others are set immediately by subordinate political superiors, or by private persons in pursuance of legal rights. In consequence of which differences between their immediate authors, laws are said to emanate from different sources or fountains.

Secondly: A law may begin or end in different modes, whether it be set immediately by the sovereign one or number, or by a party in a state of subjection to the sovereign.

Thirdly: Independently of the differences between their sources, and between the modes in which they begin and end, laws are calculated or intended to accomplish different purposes, and are also conversant about different subjects.

Being set or established by different immediate authors, beginning and ending in different modes, being calculated or intended to accomplish different purposes, and being conversant about different subjects, law may be viewed from two distinct aspects, and may also be aptly distributed under the two main departments which are sketched or indicated below.

In the first of those main departments, law will be considered with reference to its sources, and with reference to the modes in which it begins and ends. In the second of those main departments, law will be considered with reference to its purposes, and with reference to the subjects about which it is conversant.

35 LAW CONSIDERED WITH REFERENCE TO ITS SOURCES, AND WITH REFERENCE TO THE MODES IN WHICH IT BEGINS AND ENDS.

I. A law or rule may be set immediately by the sovereign, or by a party in a state of subjection to the sovereign. Hence the distinction between written and unwritten law, as the terms are frequently used in treatises by modem civilians, or by writers on general jurisprudence. And hence the equivalent distinction between promulged and unpromulged law, as the terms are frequently used in the same treatises. As the terms are frequently used in those treatises, written law, or promulged law, is law of which the sovereign is the immediate author; whilst unwritten law, or unpromulged law, is law which flows immediately from some subordinate source.

The two distinctions, as taken in that sense, will be expounded in the lectures: wherein I shall explain the widely different senses which often are annexed to the terms.

II. Whether it be set immediately by the sovereign one or number, or by some political superior in a state of subjection to the sovereign, a law or rule may be set or established in either of two modes: namely, in the properly legislative mode (or in the way of direct legislation), or in the improperly legislative mode (or in the way of judicial legislation).

A law established in the properly legislative mode is set by its author or maker as a law. The direct or proper purpose of its author or maker is the establishment of the law which is made.—A rule established in the improperly legislative mode is assumed by its author or maker as the ground of a judicial decision. The direct or proper purpose is the decision of a case, and not the establishment of the rule which is assumed and applied to the case. The author or maker of the rule legislates as properly judging, and not as properly legislating.

As I have intimated above, the sovereign one or number, or any political superior in a state of subjection to the sovereign, may legislate in either of these modes. For example: The Roman Emperors or Princes, during the Lower Empire, were avowedly, as well as substantially, sovereign in the Roman World: and yet they established laws by the decretes which they gave judicially, as well as by the edictal constitutions which they made in their legislative character. And, on the other hand, the Roman Prætors, who were properly subject judges, established laws in the way of direct legislation by the edicts 36which they published on their accession to office. The rules of practice made by the English Courts, are also examples of laws established in the legislative mode by subordinate political superiors.

Inasmuch as its true essentials are frequently misconceived, I shall endeavour to analyze accurately the distinction which I have now suggested: namely law, made directly, or in the properly legislative manner; and law made judicially, or in the way of improper legislation.

Having stated the essential differences of the two kinds of law, I shall briefly compare their respective merits and defects, and then briefly consider the related question of codification.

III. Every positive law, or rule of positive law, exists as such by the pleasure of the sovereign. As such, it is made immediately by the sovereign, or by a party in a state of subjection to the sovereign, in one of the two modes which are indicated by the foregoing article. As such, it flows from one or another of those sources.

But by the classical Roman jurists, by Sir William Blackstone, and by numerous other writers on particular or general jurisprudence, the occasions of laws, or the motives to their establishment, are frequently confounded with their sources or fountains.

The following examples will show the nature of the error to which I have now adverted.

The prevalence of a custom amongst the governed, may determine the sovereign, or some political superior in a state of subjection to the sovereign, to transmute the custom into positive law. Respect for a law-writer whose works have gotten reputation, may determine the legislator or judge to adopt his opinions, or to turn the speculative conclusions of a private man into actually binding rules. The prevalence of a practice amongst private practitioners of the law, may determine the legislator or judge to impart the force of law to the practice which they observe spontaneously.—Now till the legislator or judge impress them with the character of law, the custom is nothing more than a rule of positive morality; the conclusions are the speculative conclusions of a private or unauthorised writer; and the practice is the spontaneous practice of private practitioners. But the classical Roman jurists, Sir William Blackstone, and a host of other writers, fancy that a rule of law made by judicial decision on a pre-existing custom; exists as positive law, apart from the legislator or judge, by the institution of the private persons who observed it in its customary state. And the 37classical Roman jurists have the same or a like conceit with regard to the rules of law which are fashioned by judicial decision on the conclusions or practices of private writers or practitioners. They ascribe their existence as law to the authority of the writers or practitioners, and not to the sovereign, or the representatives of the sovereign, who clothed them with the legal sanction.

With a view to these conceits, and to others equally absurd, I shall examine the natures of the following kinds of law.

1. Law fashioned by judicial decision upon pre-existing custom: or (borrowing the language of the classical Roman jurists) jus moribus constitutum.

2. Law fashioned by judicial decision upon opinions and practices of private or unauthorised lawyers; or (borrowing the language of the classical Roman jurists) jus prudentibus compositum.

Examining customary law, or law moribus constitutum, I shall advert to the essential differences between general customary laws, and such customary laws as are local or particular: or (speaking more properly) between the customary laws which the tribunals know judicially, and the customary laws which the tribunals will not notice, unless their existence be proved.

IV. Natural law, as the term is commonly understood by modern writers upon jurisprudence, has two disparate meanings. It signifies the law of God, or a portion of positive law and positive morality.

The law natural, which is parcel of law positive, is analogous to law moribus constitutum, and to law prudentibus compositum. For natural law, considered as a portion of positive, is positive law fashioned by the legislator or judge on pre-existing law of another description: namely, on the law of God truly or erroneously apprehended; or on rules of positive morality which are not peculiar to any nation or age, but obtain, or are thought to obtain, in all nations and ages.

Accordingly, from law moribus constitutum, and law prudentibus compositum, I shall pass, by an obvious and easy transition, to the law natural which is parcel of law positive. Handling the topic, I shall show the analogy borne by that natural law to law moribus constitutum and law prudentibus compositum. Canvassing the same topic, I shall show that the supposition of a natural law (considered as a portion of positive law and morality) involves the intermediate hypothesis which is compounded of the theory of utility and the hypothesis of a 38moral sense: that, assuming the pure hypothesis of a moral sense, or assuming the pure theory of general utility, the distinction of human rules into natural and positive, were utterly senseless, or utterly purposeless.

With a view to my subsequent outline of the jus prætorium, I shall give an historical sketch of the jus gentium, as it was understood by the earlier Roman lawyers. The jus gentium of the earlier Roman lawyers, I shall distinguish from the jus naturale, or jus gentium, which makes so conspicuous a figure in the van of the Institutes and Pandects. I shall show that the jus gentium of the earlier Roman lawyers is peculiar to the Roman law; whilst the latter is equivalent to natural law, as the term is commonly understood by modern writers upon jurisprudence. I shall show that the jus gentium of the earlier Roman lawyers was a purely practical notion: that it arose from the peculiar relations borne by the Urbs Roma to her dependent allies and subject provinces. I shall show that the latter is a purely speculative notion: that it was stolen by the jurists styled classical, and by them imported into the Roman Law, from certain muddy hypotheses of certain Greek philosophers, touching the measure or test of positive law and morality.

V. From the jus moribus constitutum, the jus prudentibus compositum, the natural law of modern writers upon jurisprudence, and the equivalent jus gentium of the jurists styled classical, I shall pass to the distinction between law of domestic growth and law of foreign original: the so called ‘jus receptum.’ For here also, the sources or fountains of laws are commonly confounded with their occasions, or with the motives to their establishment. As obtaining in the nation wherein it is received, the so called jus receptum is not of foreign original, but is law of domestic manufacture or domestic growth. As obtaining in the nation wherein it is received, it is law fashioned by the tribunals of that nation on law of a foreign and independent community. For example: The Roman Law, as it obtains in Germany, is not law emanating from Roman lawgivers. It is law made by German lawgivers, but moulded by its German authors on a Roman original or model.

Passing from the jus receptum, I shall advert to the positive law, closely analogous to the jus receptum, which is fashioned by judicial decision on positive international morality.

VI. Equity sometimes signifies a species of law. But, as used in any of the significations which are oftener and more properly annexed to it, it is not the name of a species of law.

39 Of the latter significations, that which is most remarkable, and which I shall therefore explain with some particularity, may be stated briefly thus.—Equity often signifies the analogy, proportion, or equality, which is the basis of the spurious interpretation styled extensive.

As signifying a species of law, the term equity is confined exclusively to Roman and English jurisprudence. The law, moreover, of which it is the name in the language of English jurisprudence, widely differs from the law which it signifies in the language of the Roman. Consequently, its import is not involved by the principles of general jurisprudence, but lies in the particular histories of those particular systems. But since this talk of equity has obscured the rationale of law, and since an attempt should be made to dispel that thick obscurity, I shall here digress, for a time, from the region of philosophical or general, to the peculiar and narrower provinces of Roman and English jurisprudence. Having sketched an historical outline of the jus prætorium (which is intimately connected with the jus gentium, as this last was understood by the earlier Roman lawyers), I shall briefly compare the equity dispensed by the Roman Prætors with the equity administered by the English Chancellors. From which brief comparison it will amply appear, that the distinction of positive law into law and equity (or jus civile and jus prætorium) arose in the Roman, and also in the English nation, from circumstances purely anomalous, or peculiar to the particular community. And from which brief comparison it will also amply appear, that the distinction is utterly senseless, when tried by general principles; and is one prolific source of the needless and vicious complexness which disgraces the systems of jurisprudence wherein the distinction obtains.

VII. From the sources of law, and the modes wherein it begins, I shall turn to the modes wherein it is abrogated, or wherein it otherwise ends.

LAW CONSIDERED WITH REFERENCE TO ITS PURPOSES, AND WITH REFERENCE TO THE SUBJECTS ABOUT WHICH IT IS CONVERSANT.

I. There are certain rights and duties, with certain capacities and incapacities to take rights and incur duties, by which persons, as subjects of law, are variously determined to certain classes.

The rights, duties, capacities, or incapacities, which determine 40a given person to any of these classes, constitute a condition or status which the person occupies, or with which the person is invested.

One and the same person may belong to many of these classes, or may occupy, or be invested with, many conditions or status. For example: One and the same person, at one and the same time, may be son, husband, father, guardian, advocate or trader, member of a sovereign number, and minister of that sovereign body. And various status, or various conditions, may thus meet or unite, in one and the same person, in infinitely various ways.

The rights, duties, capacities and incapacities, whereof conditions or status are respectively constituted or composed, are the appropriate matter of the department of law which commonly is named the Law of Persons: Jus quod ad Personas pertinet. Less ambiguously and more significantly, that department of law might be styled the ‘Law of Status.’ For though the term persona is properly synonymous with the term status, such is not its usual and more commodious signification. Taken with its usual and more commodious signification, it denotes homoor man (including woman and child), or it denotes an aggregate or collection of men. Taken with its usual and more commodious signification, it does not denote a status with which a man is invested.

The department, then, of law which is styled the Law of Persons, is conversant about status or conditions: or (expressing the same thing in another form) it is conversant about persons (meaning men) as bearing or invested with persons (meaning status or conditions).

The department of law which is opposed to the Law of Persons, is commonly named the Law of Things: Jus quod ad Res pertinet. The explanation of which name needs a disquisition too long for the present outline.⁷

The Law of Things is conversant about matter which may be described briefly in the following manner:

It is conversant about rights and duties, capacities and incapacities, as abstracted from the rights and duties, capacities and incapacities, whereof conditions or status are respectively constituted or composed: or (changing the expression) it is conversant about rights and duties, capacities and incapacities, 41in so far as they are not constituent or component elements of status or conditions. It is also conversant about persons, in so far as they are invested with, or in so far as they are subject to, the rights and duties, capacities and incapacities, with which it is occupied or concerned.—It is conversant about acts, forbearances, and things, in so far as they are objects and subjects of rights and duties, and in so far as they are not considered in the Law of Persons: for acts, forbearances, and things, are so far considered in the Law of Persons, as they are objects and subjects of the rights and duties with which the Law of Persons is occupied or concerned. It is also conversant about persons as subjects of rights and duties, in so far as they are not considered from that aspect in the Law of Persons or Status.

II. Considered with reference to its different purposes, and with reference to the different subjects about which it is conversant, law may be divided in various ways. But of all the main divisions which it will admit, the least inconvenient is the ancient division, the import whereof I have now attempted to suggest. Considered with reference to its purposes and subjects, law will therefore be divided, in the course which I intend, into Law of Things and Law of Persons. In the institutional or elementary writings of the classical Roman jurists, who were the authors or inventors of this celebrated division, the Law of Persons preceded the Law of Things. But for various reasons, to which I shall advert immediately, I begin with the Law of Things, and conclude with the Law of Persons.

But before I consider the Law of Things, or the Law of Persons, I shall state and illustrate the import and uses of this ancient and celebrated division. And in order to that end, I shall proceed in the following manner:—1. I shall try to define or determine the notion of status or condition: for that essential or necessary notion is the basis or principle of the division. 2. I shall show that the division is merely arbitrary, although it is more commodious than other divisions, and although the notion which is its basis or principle, is essential or necessary. 3. I shall show the uses of the division; and shall contrast it with other divisions which have been, or might be, adopted. 4. I shall state the import of the division, as it was conceived by its authors, the classical Roman jurists, in their institutional or elementary writings. I shall show that their arrangement of the Roman Law often departs from the notion which is the basis of the division in question, and on which the whole of their arrangement ultimately rests. More especially, I shall 42show that the matter of jus actionum, which they placed on a line with jus personarum et rerum, should not be put into a department distinct from the two last, but ought to be distributed under both: that the main division of law ought to be twofold only, Law of Things and Law of Persons: and that the classical Roman jurists therefore fell into the error of co-ordinating certain species with the genera of which they are members. 5. The division of law into Law of Things and Persons, is obscured by the conciseness and ambiguity of the language wherein it is commonly expressed. Of that obscurity I shall endeavour to clear it. 6. I shall show that Blackstone and others, probably misled by that conciseness and ambiguity, have misapprehended grossly the true import of the division, and have turned that elliptical and dubious language into arrant jargon.

From the attempt which I have made above to suggest the import of the division, it may be inferred that the Law of Things is concerned with principles or rules which commonly are more general, or more abstract, than the principles or rules contained in the Law of Persons: that the principles or rules with which the former is concerned, commonly sin, by reason of that greater generality, through excess or defect: and that the narrower principles or rules contained in the latter, commonly modify the larger principles or rules about which the former is conversant. Now since a modification is not to be understood, if that which is modified be not foreknown, the Law of Things should not follow, but should precede the Law of Persons. For which reason, with various other reasons to be stated in the lectures, I consider the two departments in that order.

The division in question, like most attempts at scientific arrangement, is far from attaining perfect distinctness. Its two compartments frequently blend, or frequently run into one another. Consequently, as I travel through the Law of Things, I shall often be compelled to touch, by a somewhat inconvenient anticipation, upon a portion of the Law of Persons.

Note.—In his ‘Analysis of the Law,’ which abounds with acute and judicious remarks, it is stated expressly by Sir Matthew Hale, that the Law of Things should precede the Law of Persons. He says that the student should begin with the jus rerum: ‘for the jus personarum contains matter proper for the study of one that is well acquainted with the jus rerum.’

It is worthy of remark, that the order recommended by Hale is the order of the Prussian Code. The admirable Suarez, under whose superintendence the Code was compiled, assigns the following reason for his preference of that order to the method of the Classical Jurists:—

43 ‘Reflecting on the departments of law which are styled the Law of Persons and the Law of Things, we shall find that the two departments are mutually related: that each contains matters which it is necessary we should know, before we can know correctly the appropriate subject of the other. But such of these praecognoscenda as are contained by the Law of Things, are far more numerous and far more weighty than such of these praecognoscendaas are contained by the Law of Persons. For where the subject of either is implicated with that of the other, the former is commonly concerned with some more general rule, which by reason of its greater generality, sins through excess or defect: whilst the latter is commonly concerned with some less general division, by which that rule is pruned of its excesses, or by which its defects are supplied.’

I. There are facts or events from which rights and duties arise, which are legal causes or antecedents of rights and duties, or of which rights and duties are legal effects or consequences. There are also facts or events which extinguish rights and duties, or on which rights and duties terminate or cease.

The events which are causes of rights and duties, may be divided in the following manner: namely, into acts, forbearances, and omissions, which are violations of rights or duties and events which are not violations of rights or duties.

Acts, forbearances, and omissions, which are violations of rights or duties, are styled delicts, injuries, or offences.

Rights and duties which are consequences of delicts, are sanctioning (or preventive) and remedial (or reparative). In other words, the ends or purposes for which they are conferred and imposed, are two: first, to prevent violations of rights and duties which are not consequences of delicts: secondly, to cure the evils, or repair the mischiefs, which such violations engender.

Rights and duties not arising from delicts, may be distinguished from rights and duties which are consequences of delicts, by the name of primary (or principal). Rights and duties arising from delicts, may be distinguished from rights and duties which are not consequences of delicts, by the name of sanctioning (or secondary).

My main division of the matter of the Law of Things, rests upon the basis or principle at which I have now pointed: namely, the distinction of rights and of duties (relative and absolute), into primary and sanctioning. Accordingly, I distribute the matter of the Law of Things under two capital departments.—1. Primary rights, with primary relative duties. 2. Sanctioning rights, with sanctioning duties (relative and 44absolute): Delicts or injuries (which are causes or antecedents of sanctioning rights and duties) included.

II. The basis of my main division of the matter of the Law of Things, with the two capital departments under which I distribute that matter, I have now stated or suggested. Many of the sub-departments into which those capital departments immediately sever, rest upon a principle of division which I shall expound in my preliminary lectures, but which I may indicate commodiously at the present point of my outline.

The principle consists of an extensive and important distinction, for which, as conceived with the whole of its extent and importance, we are indebted to the penetrating acuteness of the classical Roman jurists, and to that good sense, or rectitude of mind, which commonly guided their acuteness to true and useful results. Every student of law who aspires to master its principles, should seize the distinction in question adequately as well as clearly; and should not be satisfied with catching it, as it obtains here or there. For the difference whereon it rests, runs through every department of every system of jurisprudence: although, in our own system, the difference is far from being obvious, and although it is impossible to express it, sufficiently and concisely at once, without a resort to terms which are unknown to the English Law, and which may appear uncouth and ridiculous to a merely English lawyer.

The distinction in question is a distinction which obtains between rights, and which therefore obtains, by necessary implication, between the relative duties answering to rights. It may be stated thus:

Every right, be it primary or sanctioning, resides in a person or persons determinate or certain: meaning by a person determinate, a person determined specifically. And it avails against a person or persons (or answers to a relative duty incumbent on a person or persons) other than the person or persons in whom it resides.

But though every right resides in a person or persons determinate, a right may avail against a person or persons determinate, or against the world at large. In other words, the duty implied by the right, or to which the right corresponds, may lie exclusively on a person or persons determinate, or it may lie upon persons generally and indeterminately.

Duties answering to rights which avail against the world at large, are negative: that is to say, duties to forbear. Of duties answering to rights which avail against persons determinate, 45some are negative, but others, and most, are positive: that is to say, duties to do or perform.

A right availing against the world at large is defined by Grotius and others, thus; facultas personae competens sine respectu ad certam personam: a right availing exclusively against a person or persons determinate, thus; facultas personae competens in certam personam.

By most of the modern Civilians, though not by the Roman Lawyers, rights availing against the world at large are named jura in rem: rights availing against persons determinate, jura in personam, or jura in personam certam. And by these different names of rights in rem and rights in personam, I distinguish rights of the former from rights of the latter description.—My reasons for adopting them in preference to others, I shall assign in my lectures: wherein I shall endeavour to clear them of obscurity, and shall contrast them with the equivalent names of the Roman Lawyers.

The relative duties answering to rights in rem, might be distinguished conveniently from duties of the opposite class, by the appropriate name of offices: the relative duties answering to rights in personam, by the appropriate name of obligations.

Note.—In the writings of the Roman Lawyers, the term obligatio is never applied to a duty which answers to a right in rem. But, since they have no name appropriate to a right in personam, they use the term obligatio to denote a right of the class, as well as to denote the duty which the right implies. Jus in rem or jura in rem, they style dominium or dominia (with the larger meaning of the term); and to dominia (with that more extensive meaning), they oppose jura in personam, by the name of obligationes.

To exemplify the leading distinction which I have stated in general expressions, I advert (with the brevity which the limits of an outline command) to the right of property or ownership, and to rights arising from contracts.—The proprietor or owner of a given subject has a right in rem: since the relative duty answering to his right is a duty incumbent upon persons generally and indeterminately, to forbear from all such acts as would binder his dealing with the subject agreeably to the lawful purposes for which his right exists. But if I singly, or I and you jointly, be obliged by bond or covenant to pay a sum of money, or not to exercise a calling within conventional limits, the right of the obligee or covenantee is a right in personam: the relative duty answering to his right being an obligation to do or to forbear, which lies exclusively on a person or persons determinate.

46 III. With the help of what I have premised, I can now indicate the method or order wherein I treat or consider the matter of the Law of Things. That method may be suggested thus:

The matter of the Law of Things, I arrange or distribute under two capital departments.

The subjects of the first of those capital departments are primary rights, with primary relative duties: which I arrange or distribute under four sub-departments.—1. Rights in rem as existing per se, or as not combined with rights in personam. 2. Rights in personam as existing per se, or as not combined with rights in rem. 3. Such of the combinations of rights in rem and rights in personam as are particular and comparatively simple. 4. Such universities of rights and duties (or such complex aggregates of rights and duties) as arise by universal succession.

Sanctioning rights (all of which are rights in personam), sanctioning duties (some of which are relative, but others of which are absolute), together with delicts or injuries(which are causes or antecedents of sanctioning rights and duties), are the subjects of the second of the capital departments under which I arrange or distribute the matter of the Law of Things.

But before I proceed to those capital departments, I shall distribute Things, as subjects of rights and duties, under their various classes. And before I proceed to those capital departments, I shall remark generally upon Persons, as subjects of rights and duties; upon Acts and Forbearances, as objects of rights and duties; and upon Facts or Events, as causes of rights and duties, or as extinguishing rights and duties.

Rights in rem, as existing per se, or as not combined with rights in personam.

The following is the matter of this sub-department, and the following is the order in which that matter will be treated.

I. As the reader may infer from a foregoing part of my outline, and as I shall show completely in my preliminary lectures, the expression in rem, when annexed to the term right, does not denote that the right in question is a right over a thing. Instead of indicating the nature of the subject, it points at the compass of the correlating duty. It denotes that the relative duty lies upon persons generally, and is not exclusively incumbent upon a person or persons determinate. In other 47words, it denotes that the right in question avails against the world at large.

Accordingly, some rights in rem are rights over things: others are rights over persons: whilst others have no subjects (persons or things) over or to which we can say they exist, or in which we can say they adhere.—For example: Property in a horse, property in a quantity of corn, or property in, or a right of way through a field, is a right in rem over or to a thing, a right in rem inhering in a thing, or a right in rem whereof the subject is a thing.—The right of the master, against third parties, to his slave, servant, or apprentice, is a right in rem over or to a person. It is a right residing in one person, and inhering in another person as its subject.—The right styled a monopoly, is a right in rem which has no subject. There is no specific subject (person or thing) over or to which the right exists, or in which the right inheres. The officium or common duty to which the right corresponds, is a duty lying on the world at large, to forbear from selling commodities of a given description or class: but it is not a duty lying on the world at large, to forbear from acts regarding determinately a specifically determined subject. A man’s right or interest in his reputation or good name, with a multitude of rights which I am compelled to pass in silence, would also be found, on analysis, to avail against the world at large, and yet to be wanting in persons and things which it were possible to style their subjects.

I shall therefore distinguish rights in rem (their answering relative duties being implied) with reference to differences between their subjects, or between the aspects of the forbearances which may be styled their objects. As distinguished with reference to those differences, they will fall (as I have intimated already) into three classes.—1. Rights in rem of which the subjects are things, or of which the objects are such forbearances as determinately regard specifically determined things. 2. Rights in rem of which the subjects are persons, or of which the objects are such forbearances as determinately regard specifically determined persons. 3. Rights in rem without specific subjects, or of which the objects are such forbearances as have no specific regard to specific things or persons.

II. By different rights in rem over things or persons, the different persons in whom they respectively reside are empowered to derive from their respective subjects different quantities of uses or services. Or (changing the expression) the different persons in whom they respectively reside, are empowered to use 48or deal with their respective subjects in different degrees or to different extents. Or (changing the expression again) the different persons in whom they respectively reside, are empowered to turn or apply their respective subjects to ends or purposes more or less numerous.—And such differences obtain between such rights, independently of differences between their respective durations, or the respective quantities of time during which they are calculated to last.

Of such differences between such rights, the principal or leading one is this.—1. By virtue of some of such rights, the entitled persons, or the persons in whom they reside, may use or deal with the subjects of the rights to an extent which is incapable of exact circumscription, although it is not unlimited. Or (changing the expression) the entitled persons may apply the subjects to purposes, the number and classes of which cannot be defined precisely, although such purposes are not unrestricted. For example: The proprietor or owner is empowered to turn or apply the subject of his property or ownership, to uses or purposes which are not absolutely unlimited, but which are incapable of exact circumscription with regard to class or number. The right of the owner, in respect of the purposes to which he may turn the subject, is only limited, generally and vaguely, by all the rights of all other persons, and by all the duties (absolute as well as relative) incumbent on himself. He may not use his own so that he injure another, or so that he violate a duty (relative or absolute) to which he himself is subject. But he may turn or apply his own to every use or purpose which is not inconsistent with that general and vague restriction.—2. By virtue of other of such rights the entitled persons, or the persons in whom they reside, may merely use or deal with their subjects, to an extent exactly circumscribed (at least in one direction). Or (changing the expression) they may merely turn them to purposes defined in respect of number, or, at least, in respect of class. For example: He who has a right of way through land owned by another, may merely turn the land to purposes of a certain class, or to purposes of determined classes. He may cross it in the fashions settled by the grant or præscription, but those are the only purposes to which he may turn it lawfully.

A right belonging to the first-mentioned kind, may be styled dominion, property, or ownership, with the sense wherein dominion is opposed to servitus or easement. As contradistinguished to a right belonging to the first-mentioned kind, a right belonging to 49the last-mentioned kind may be noted by one or another of the last-mentioned names.—Dominion, property, or ownership, is a name liable to objection. For, first, it may import that the right in question is a right of unmeasured duration, as well as indicate the indefinite extent of the purposes to which the entitled person may turn the subject. Secondly: It often signifies property, with the meaning wherein property is distinguished from the right of possession to which I shall advert below. Thirdly: Dominion, with one of its meanings, is exactly coextensive with jus in rem, and applies to every right which is not jus in personam.—For various reasons which I shall produce in my lectures, a right belonging to the last-mentioned kind is not denoted adequately by the ‘servitus’ of the Roman, or by the ‘easement’ of the English law.—But in spite of the numerous ambiguities which encumber these several terms, I think them less incommodious than the newly devised names by which it were possible to distinguish the rights of the two kinds. For newly devised names, however significant and determinate, commonly need as frequent explanation as the ambiguous but established expressions which they were intended to supplant And newly devised names are open to a great inconvenience from which established though ambiguous expressions are completely exempt. They are open to that undiscerning, yet overwhelming ridicule, which is poured upon innovations in speech by the formidable confederacy of fools: who being incapable of clear and discriminating apprehension, cannot perceive the difficulties which the names were devised to obviate, though they know that their ears are tingling with novel and grating sounds.

With the help of what I have premised, I can now indicate the principal matters which I shall pass in review at this point of my Course.—l. I shall consider in a general manner such distinctions between rights in rem as are founded on differences between the degrees wherein the entitled persons may use or deal with the subjects. 2. I shall consider particularly that leading distinction of the kind, which may be marked with the opposed expressions dominium et servitus, or ownership and easement:understanding the expression dominium, or ownership, as indicating merely the indefinite extent of the purposes to which the entitled person may turn the subject of the right 3. I shall consider the various modes of dominion or ownership, and shall advert to the various classes of servitude or easements. 4. Although they are incapable of exact circumscription, the 50purposes to which the owner may turn the subject of his ownership, are not exempt from restrictions. The oblique manner wherein the restrictions are set, I shall attempt to explain: an attempt which will lead me to consider generally, the actual and possible modes of defining rights and duties, with the approach to completeness and correctness whereof the process admits.

III. Whether they be rights to specific subjects, or rights without such subjects; and whatever be the purposes to which the entitled persons may turn their subjects; rights in rem are distinguishable by differences between the quantities of time during which they are calculated to last.

As distinguishable by differences between their respective durations, rights in rem will be considered in the following order.—Rights in rem are rights of unlimited, or rights of limited duration. Every right of unlimited duration, is also a right of unmeasured duration: that is to say, a right of which the duration is not exactly defined. But of rights of limited duration, some are rights of unmeasured duration, whilst others are rights of a duration exactly defined or measured. For example: An estate in fee simple or property in a personal chattel, is a right of unlimited, and therefore of unmeasured duration. An estate for life, is a right of unmeasured, but limited duration. The interest created by a lease for a given number of years, is a right of a duration limited and measured.—Accordingly, I shall distinguish rights of unlimited, from rights of limited duration: and I shall distinguish rights of limited, into rights of unmeasured, and rights of measured duration.

Differences between the degrees wherein the entitled persons may use or deal with the subjects, are related to differences between the durations of the rights. The several relations between those respective differences I shall endeavour to explain.

IV. Whether they be rights to specific subjects, or rights without such subjects; whatever be the purposes to which the entitled persons may turn their subjects; and whatever be the quantities of time during which they are calculated to last; rights in rem are distinguishable by the following differences.

Of rights in rem, some are present or vested: others are future, contingent, or merely inchoate.—Vested rights essentially differ from one another, as well as from rights which are contingent. For in some cases of vested rights, the party entitled, or the party in whom it resides, may exercise the right presently. 51But in other cases of vested right, the exercise of the right is presently suspended by the presence of an anterior and preferable right.—And whether a right be vested or contingent, it may be liable to end, on the happening of a given event, before the lapse of its possible duration.

Upon these differences, and the distinctions resulting from these differences, I shall touch briefly in this sub-department: postponing a larger explanation to that subsequent point of my Course, at which I shall consider the trust-substitutions and entails of the Roman and English Law.

V.⁸ I shall consider the various events from which rights in rem arise, with the various events by which they are extinguished: reserving, however, an exact account of præscription, until I shall have duly analysed the right of possession.

VI. If one person exercise a right residing in another person, but without authority from the latter, and without authority from those through whom the latter is entitled, the former acquires, by his unauthorised or adverse exercise, the anomalous right which is styled the right of possession.

This general description of the right of possession must, however, be taken with the following limitation.—The person who possesses adversely, or who exercises the right of another without the requisite authority, does not acquire thereby the right of possession, in case his adverse possession began vi, or arose through any of the means which fall within the name of violence.

The right of possession must be distinguished from the right of possessing, or (changing the phrase) from the right to possess: for the right of possessing, or the right to possess, is a property or integrant part of the right of possession itself, and also of numerous rights which widely differ from the latter. In other words, the right of possessing, considered generally, may arise from any of various titles or causes: but the peculiar right of possessing which is styled the right of possession, is a right of possessing that arises exclusively from the fact of an adverse possession.

Although it arises from actual possession, the right in rem which is styled the right of possession, must also be distinguished from the rights in rem which arise from occupation or occupancy. For the fact of possessing which is styled occupation or occu52pancy, consists in the possession of a something that is res nullius. But the fact of possessing which gives the right of possession, consists in the adverse exercise, by the person who acquires the right, of a right residing in another.

Consequently, the following description of the right of possession has all the exactness which accords with extreme brevity.—It is that right to possess (or to use or exercise a right) which springs from the fact of an adverse possession not beginning through violence.

As against all but the person whose right is exercised adversely, the person who acquires the right of possession is clothed with the very right which he affects to exercise. And as against the person whose right is exercised adversely, he may acquire the very right which he affects to exercise through the title, or mode of acquisition, styled præscription. Or (adopting a current but inadequate phrase) the right of possession ripens, by præscription, into the right of dominion or property.

Note.—The right of possession strictly and properly so called, or the right of possession considered as a substantive right, is a right that arises exclusively from the fact of an adverse possession. But the term right of possession is not unfrequently employed with an extremely large signification. Taking the term with this very extensive meaning, the right of possession arises from an actual possession, whether the actual possession be adverse or not. For example: It is said that the dominus in actual possession, has a right of possession which arises from that actual possession, and which is completely independent of his right of dominion. But (as I shall show in my lectures) the right of possession considered as a substantive right, is a right that arises exclusively from the fact of an adverse possession: the so called right of possession which arises from an actual possession not adverse, being a property of another right, or being an integrant part of another right. For example: It is absurd to ascribe to the dominus in possession, a right of possession independent of his right of dominion: for if the dominus actually possess, it is as dominus that he actually possesses. As I shall show in my lectures, the term right of possession acquired the large signification to which I have adverted above, in consequence of an extension of such possessory remedies as in their origin were appropriate to parties invested with the right of possession strictly and properly so called. These possessory remedies, though originally appropriate to such parties, were afterwards extended to any possessors who had been wrongfully disturbed in their actual possessions. In the Roman Law, for example, a certain interdict (closely analogous to an action of ejectment) was originally appropriate to parties invested with the right of possession strictly and properly so called. But it was extended to the dominus who had been wrongfully evicted from his actual possession. For by resorting to an interdict grounded on his actual possession, instead of resorting to an action grounded on his right of dominion, he avoided the inconvenient necessity of proving his right of dominion, and had merely to demonstrate his actual possession at the time of the wrongful eviction: just as a party who is seised or entitled in fee, recovers through an action of ejectment, from an ejector without title, by merely proving his actual 53possession at the time of the wrongful ejectment And since the dominus recovered by the interdict., on merely proving his actual possession, he recovered, in a certain sense, through his right of possession merely. But yet it were absurd to affirm that he had any right of possessing independently of his right of dominion; or to liken the right of possessing which is parcel of the right of dominion, to the substantive right of possessing which arises solely or exclusively from the fact of an adverse possession.—The above-mentioned extension of poseessory remedies, has rendered the right of possession one of the darkest of the topics which the science of jurisprudence presents. But there is not intrinsically any remarkable difficulty in the right of possession which is strictly and properly so called: that is to say, which arises solely or exclusively from the fact of an adverse possession, and which is the basis of acquisition by usucapion, and of other acquisition by præscription.

I shall analyse the anomalous and perplexed right which is styled the right of possession. Performing the analysis, I shall happily be able to borrow from a celebrated treatise by Von Savigny, entitled Das Recht des Besitzes, or De Jure Possessionis: of all books upon law, the most consummate and masterly; and of all books which I pretend to know accurately, the least alloyed with error and imperfection.

Having analysed the right of possession, I shall turn to the title, or the mode of acquisition, wherein the right of possession is a necessary ingredient: namely, usucapion and other præscription. I shall consider generally the nature of the title; and shall advert to the respective peculiarities of the Roman and English Law, in regard to the terms or conditions whereon the title is allowed.—If I find it possible or prudent to touch that extensive subject, I shall proceed from title by præscription to the connected subject of registration.

Rights in personam as existing per se, or as not combined with rights in rem.

to rights in personam, arise from facts or events of three distinct natures: namely, from contracts, from quasi-contracts, and from delicts.

The only rights in personam which belong to this sub-department, are such as arise from contracts and quasi-contracts. Such as arise from delicts, belong to the second of the capital departments under which I arrange or distribute the matter of the Law of Things.

Note.—Perceiving that rights ex delicto were generally rights in personam, but not adverting to the importance of marking their sanctioning character, 54the classical Roman jurists, in their institutional or elementary writings, arranged them with rights ex contractu and quasi ex contractu: with rights which also are rights in personam, but are not bottomed, like rights ex delicto, in infringements of other rights. And hence much of the obscurity which hangs over the Institutes of their imitator, the Emperor Justinian.

I. I shall define or determine the meanings of certain leading expressions: viz. Promise: Pollicitation: Convention or Agreement: Pact: Contract: Quasi-Contract.

II. Having defined the meanings of those leading expressions, I shall consider particularly the nature of contracts. I shall distinguish contracts properly so called from certain facts or events which are styled contracts, but which virtually are alienations or conveyances. I shall distribute contracts under their various classes: expounding the distinctions (with many other distinctions) between unilateral and bilateral, principal and accessory, nominate and innominate contracts. Expounding this last distinction, I shall show what is meant by the essence, and what by the accidents of a contract I shall notice the solemnities or formalities which are essential to the validity of certain contracts: and, thereupon, I shall analyse the rationale of the doctrine of considerations. Finally, I shall turn to the events whereon, or to the modes wherein, the rights and obligations arising from contracts, cease or are extinguished.

III. From contracts, I shall proceed to quasi-contracts: that is to say, facts or events which are neither contracts nor delicts; but which, inasmuch as they engender rights in personam and obligations, are, in that respect, analogous to contracts. I shall notice the frequent confusion of merely quasi-contracts with contracts which properly are such, although they are tacit or implied. I shall show that quasi-contracts are analogous to the fancied contracts from which speculators on government have derived the duties of the governed: and I shall show the causes of the tendency to imagine or feign contracts, for the purpose of explaining the origin of duties which emanate from other sources. I shall advert to the classes of quasi-contracts; and to the events whereon, or the modes wherein, the rights and obligations which they generate, cease or are extinguished.

Such of the combinations of rights in rem and rights in personam as are particular and comparatively simple.

Though jus in rem, or jus in personam, may exist separately, 55or uncombined with the other, both may vest uno ictu in one and the same party: or (changing the expression) an event which invests a party with a right in rem or in personam, may invest the same party with a right in personam or in rem. As examples of such events, I may mention the following: namely, a conveyance with a covenant for title: a hypotheca or mortgage, express or tacit: a sale completed by delivery, with a warranty, express or tacit, for title or soundness. And, as I shall show in my lectures, many a fact or event which is styled simply a contract, is properly a complex event compounded of a conveyance and a contract, and imparting uno flatu a right in remand in personam.

Such of the combinations of rights in rem and in personam as are particular and comparatively simple, are the matter of this sub-department. What I mean by their particular, or rather their singular, combinations, as distinguished from the universal aggregates which are the matter of the next sub-department, would scarcely admit of explanation within the limits of an outline. In order to an explanation of my meaning, I must explain the distinction between singular and universal successors, or succession rei singulæand succession per universitatem: nearly the most perplexed of the many intricate knots with which the science of law tries the patience of its students.

Such universities of rights and duties (or such complex aggregates of rights and duties) as arise by universal succession.

I. The complex aggregates of rights and duties, which commonly are named by modern Civilians, ‘universitates juris,’ will be distinguished from the aggregates or collections of things, which commonly are named by the same Civilians, ‘universitates rerum sive facti.’—They will also be distinguished from the complex and fictitious persons (or the collective bodies of individual or physical persons), which are named by the Roman Lawyers, universitates or collegia, and by the English Lawyers, corporations aggregate.—The universities of rights and duties, which are the matter of this sub-department, will also be distinguished from status or conditions. For the aggregates of rights and duties, capacities and incapacities, which are styled status or conditions, are, for the most part, juris universitates.

II. Since all the universities of rights and duties, which are 56the matter of this sub-department, arise by universal succession, the distinction between singular and universal successors, or succession rei singulæ and succession per universitatem, will be stated and explained. As I have already remarked, that knotty distinction would scarcely admit of explanation within the limits of an outline. But the following examples may suggest to the reflecting reader, the character of successors per universitatem, with the nature of the universitates to which such successors succeed.—The executor or administrator of a testator or intestate, with the general assignee of a bankrupt or insolvent, are universal successors. And, in respect of specialty debts due from the ancestor or devisor, the heir or devisee, general or particular, succeeds per universitatem.—The aggregate of rights and obligations which devolves from the testator or intestate to the executor or administrator, with that which passes from the bankrupt or insolvent to the general assignee of his estate and effects, are universities of rights and duties. And since allthe obligations of a given class, which were due from the ancestor or devisor, attach at once upon the heir or devisee, that mass of obligations falls within the notion of a juris universitas.

For every juris universitas bears one or both of the following characters. First: Where a universitas juris arises by universal succession, rights residing in, or obligations incumbent upon, a person or persons, pass uno ictu to another person or persons, and pass in genere and not per speciem. In other words, they pass or devolve at once or together, and they pass or devolve as belonging to their kinds or sorts, and not as determined by their specific or individual natures. Secondly: Whatever be its origin, a universitas juris, so far as it consists of rights, is of itself (or considered as abstracted from its component particulars), the subject of a right in rem. The party invested with a universitas juris, has a right in the aggregate availing against the world at large, even though all the rights which are constituent elements of the aggregate, be merely rights in personam, or availing against persons determinate.—I shall show in my lectures, that every status or condition which is not purely burthensome, bears the last of these marks, and therefore is juris universitas. I shall also explain in my lectures, why the right in rem over a juris universitas (considered as abstracted from its component particulars) stands out conspicuously in the Roman Law, and is far less obvious in the English.

The legatee of a specific thing, the alienee of a specific thing by transfer inter vivos, or the assignee of a given bond 57or other contract, are singular successors, or successors rei singulæ.

III. From the generic nature of universitates juris, and the peculiar nature of such of them as arise by universal succession, I shall proceed to such of these last as are the matter of this sub-department. Now universitates juris which devolve to universal successors, and which are the matter of this sub-department, are of two kinds: 1. Universitates juris devolving from the dead as such: 2. Universitates juris devolving from the living, or devolving from the dead, but not from the dead as such. And those two kinds I shall consider in that order.

Universal successors succeeding to the dead as such, take ab intestato or ex testamento. Accordingly, I shall explain universal succession ab intestato, and universal succession ex testamento. And to exemplify my explanation of the distinction, I shall compare the characters of the Roman hæres legitimus, of the English administrator and next of kin, and of the English heir: of the Roman hæres testamentarius, of the English executor and residuary legatee, and of the English devisee general or particular.

Note.—By the English lawyers, real rights (property in things real, or real property) are distinguished from personal rights (property in things personal, or personal property). These two classes of rights blend at so many points, that the difference between them cannot be described correctly in generic and concise expressions. A correct description of the difference between the two classes of rights, would involve a complete description of the several or various rights which belong to those classes respectively. Of the generic and concise descriptions which the difference in question will take, the following, I incline to believe, is the least remote from the truth. Real rights (property in things real, or real property) are rights which are inheritable: which (where they are transmissible to representatives) devolve ab intestato to heirs. Personal rights (property in things personal, or personal property) are rights which are not inheritable: which (where they are transmissible to representatives) devolve ab intestato to administrators (or next of kin). The difference, therefore, between real and personal rights, mainly consists in this. According to the English law, succession ab intestato is of two descriptions: namely, succession by heirs (strictly and technically so called), and succession by administrators (or next of kin). Rights devolving ab intestato to successors of the former description, are real: rights devolving ab intestato to successors of the latter description, are personal.—It were easy to demonstrate, that the division of rights into real and personal (or the division of property into real and personal) does not quadrate with the division of things into things immoveable and things moveable: It were also easy to demonstrate, that it does not quadrate with the division of things into things which are subjects of tenure and things which are not. As I have remarked already, the division of property into real and personal, is not susceptible of a precise generic description. He who would know precisely the meaning of the division in question, must master all the details which each of its compartments embraces. Or 58(changing the expression) the various details which each of its compartments embraces, are not connected by a common character or property, but form a heap, inevitably incondite, of heterogeneous particulars.—This needless distinction between real and personal property, which is nearly the largest of the distinctions that the Law of England contains, is one prolific source of the unrivalled intricacy of the system, and of its matchless confusion and obscurity. To the absence of this distinction (a cause of complexness, disorder, and darkness, which naught but the extirpation of the distinction can thoroughly cure), the greater compactness of the Roman system, with it greater symmetry and clearness, are mainly imputable. There is not, indeed, in the Roman jurisprudence, the brevity and harmony of parts, with the consequent lucidity and certainty, which are essential to a system of law that were worthy of the prostituted name; a system of law that were truly a guide of conduct, and not a snare in the way of the parties bound to observe its provisions. But, this notwithstanding, the Roman Law (mainly through the absence of the distinction between real and personal property) is greatly and palpably superior, considered as a system or whole, to the Law of England. Turning from the study of the English to the study of the Roman Law, you escape from the empire of chaos and darkness, to a world which seems by comparison, the region of order and light.

The distinction of the English lawyers, between real and personal rights, is peculiar to the systems of positive law which are mainly bottomed in feudal institutions. As I have stated already, there is not in the Roman Law the faintest trace of it. According to the Roman Law, rights devolve ab intestato agreeably to a uniform and coherent scheme. It is true that rights are distinguished by most of the modern Civilians, into jura realia and jura personalia: and that this distinction of rights into jura realia and jura personalia, obtains in every system of particular and positive law, which is an offset or derivative of the Roman. But the distinction of the modern Civilians, between jura realia and jura personalia, is equivalent to the distinction, made by the same Civilians, between jura in rem and jura in personam: and it is also equivalent to the distinction, made by the Roman Lawyers, between dominia (with the larger meaning of the term) and obligationes. Real rights (in the sense of the English lawyers) comprise rights which are personal as well as rights which are real (in the sense of the modern Civilians): and personalrights (in the sense of the former) comprise rights which are real as well as rights which are personal(in the sense of the latter). The difference between real and personal rights (as the terms are understood by the modern Civilians) is essential or necessary. It runs through the English Law, just as it pervades the Roman: although it is obscured in the English, by the multitude of wanton distinctions which darken and deform the system. But the difference between real and personal rights (as the terms are understood by the English Lawyers) is purely accidental.

And since this difference is purely accidental, it is not involved by general jurisprudence: for general jurisprudence, or the philosophy of positive law, is concerned with principles and distinctions which are essential or necessary. Accordingly, I shall touch upon the difference in a merely incidental manner, and merely to illustrate principles and distinctions which the scope of general jurisprudence properly embraces.

Succession to the subject of a specific, or other particular legacy, is succession rei singulæ: and it therefore belongs logically 59to one or another of the three foregoing sub-departments. But since such succession, although it be singular, is succession ex testamento, it could not be considered, under any of those sub-departments, without an inconvenient anticipation of the doctrine of testaments. Accordingly, succession to the subject of a specific, or other particular legacy, will be considered at this point of this sub-department.—For a similar reason, the entails and trust-substitutions of the English and Roman law, will be postponed to the same point. According to the Roman law, the person who takes virtually by a trust-substitution, is always, in effect, successor singularis: but the subject of a trust-substitution is either a juris universitas or a res singula. According to the same system, every trust-substitution is created by testamentary disposition. And, according to the Law of England, an entail is created by testament or will, as well as by act inter vivos. I therefore shall find it expedient to postpone substitutions and entails, until I shall have passed in review the nature of a juris universitas, and of succession, universal and singular, ex testamento.—In liberâ republicâ, and under the earlier Emperors, every disposition suspending the vesting of its subject, and almost every disposition restraining the power of alienation, was prohibited by the Roman Law; and such dispositions of the kind as it afterwards allowed, were created exclusively by testament or codicil, and in the circuitous and absurd manner of a fidei-commissum. Consequently, as succession ex testamento will lead me to entails, so will entails conduct me to the nature of trusts: that is to say, to the nature of trusts in general, as well as to the fidei-commissa which are peculiar to the Roman Law, and to the uses and trusts (an offset of those fidei-commissa) which are peculiar to the Law of England.

Having treated of universal successors succeeding to the dead as such, I shall treat of universal successors succeeding to the living, or succeeding to the dead, but not to the dead as such. And treating of universal successors of those generic characters, I shall consider particularly the succession per universitatem which obtains in cases of insolvency and of the consequent cessio bonorum.

Note.—In this sub-department of the Law of Things, I shall consider universal succession as it obtains generally. In other words, I shall consider universal succession abstracted from persons in so far as persons are invested with status or conditions.

In some cases of universal succession, the succession is the consequence of certain status or conditions, or supposes the pre-existence of certain status or conditions: and in other cases of universal succession, certain parties 60are invested with conditions, in consequence of the succession itself. As examples of universal succession, the effect or cause of conditions, I adduce the following cases from the Roman and English Law: namely, universal succession, ab intestato or ex testamento, to the rights and obligations of a freedman: universal succession, by the adopting father, to the rights and obligations of an abrogated son: universal succession, by the general assignees or trustees, to the rights and obligations of an insolvent trader. For through a distinction built on an essential difference, but carried to needless length and breeding needless complexness, the law of England, and of other modern nations, severs the insolvency of traders from other insolvency, and makes it the subject of a peculiar system of rules.

Now where universal succession is the effect or cause of conditions, it ought to be excluded from the Law of Things, and treated with the conditions from which it emanates, or of which it is the fountain or spring.

But in spite of that exclusion, the consideration of the universal succession which is matter for the Law of Things, involves large anticipations from the Law of Persons. For example: Succession ab intestato cannot be explained completely, without an explanation of consanguinity, or of cognation (sensu latiore): whilst consanguinity cannot be explained completely, without a large anticipation from the law of marriage, or a long reference forward to the status of husband and wife. Wearing the peculiar form which it takes in the Roman Law, succession ab intestato cannot be explained completely, without an explanation of cognation (sensu latiore), of the relation styled agnation, and also of that cognation which is contradistinguished to agnation, and which therefore differs from cognation (in the larger meaning of the term). But since the relation styled agnation results from the patria potestas, the consideration of the Roman succession ab intestato, involves a double reference to the Law of Persons: namely, a reference to the status or conditions of pater et filius familias, as well as to the status or conditions of husband and wife.

As I shall show in my lectures, that portion of the Law of Things which is concerned with universal succession, is more implicated than any other with the Law of Persons or Status. If, indeed, it were closely analysed, the whole of that portion of the Law of Things might be found to consist of matter belonging logically to the Law of Persons, but interpolated in the Law of Things, for the sake of commodious exposition.

As I treat of universal succession to intestates, testators, and insolvents, another implication of the parts of my subject will compel me to draw upon the second of those two capital departments under which I arrange or distribute the matter of the Law of Things. For rights and obligations arising from delicts devolve or pass, in company with others, to the universal successors, or general representatives, of intestates, testators, and insolvents.

Sanctioning Rights, with sanctioning Duties (relative and absolute): Delicts or Injuries (which are causes or antecedents of sanctioning rights and duties) included.

This is the second of the capital departments under which I arrange or distribute the matter of the Law of Things.

Before I proceed to the sub-departments under which I distribute the subjects of this second capital department, I shall distinguish delicts into civil injuries and crimes: or (what is the 61same process stated in different expressions) I shall distinguish the rights and duties which are effects of civil delicts, from the duties, and other consequences, which are effects of criminal.

Having expounded the nature of the distinction between civil and criminal delicts, I shall distribute the subjects of this second capital department under two sub-departments.—1. Rights and duties arising from civil injuries. 2. Duties, and other consequences, arising from crimes.

I. Civil injuries will be classed and described with reference to the rights and duties whereof they are respectively infringements.

II. Rights arising from civil delicts are generally rights in personam: that is to say, rights availing against persons certain, or rights answering to duties incumbent on determinate persons.

The rights arising from civil delicts, including the relative duties answering to those rights, I distribute under two departments: each of which two departments immediately severs into various sub-departments.

The division of those rights into those two departments, rests upon a principle of division which may be stated thus: namely, the difference between the natures of the rights and duties whereof civil delicts are respectively infringements. Accordingly, rights arising from civil delicts which are infringements of rights in rem, are the subjects of the first department. Rights arising from civil delicts which are infringements of rights in personam, are the subjects of the second department.

The various sub-departments into which those two departments immediately sever, rest upon a principle of division which may be stated thus: namely, the respective differences between the immediate purposes which the rights and duties arising from civil delicts are respectively calculated to accomplish.

Note.—In the language of the Roman Law, the term delict, as applied to civil injuries, is commonly limited to civil injuries which are infringements of rights in rem. Violations of rights in personam, or breaches of contracts and quasi-contracts, are not commonly styled delicts or injuries, and are not commonly considered in a peculiar or appropriate department. In the Institutes of Gaius, as well as in those of Juatinian, they are con62sidered with contracts and quasi-contracts, or with the primary rights in personam of which they are infringements.

In the language of the English law (here manifestly borrowing the language of the Roman), the term delict (in so far as the term is employed by English Lawyers) is also limited to civil injuries which are infringements of rights in rem. Remedies by action are not unfrequently distinguished into actions ex delicto and actions as contractu. The former are remedial of injuries which are infringements of rights in rem: the latter are remedial of breaches of contracts, and of breaches of quasi-contracts. Such, at least, is the nature of the distinction as conceived and stated generally. The various classes of actions having been much confounded, the foregoing general statement of the nature or rationale of the distinction, must be taken with numerous qualifications. For example: In case, strictly so called, the general issue is not guilty, and the ground of the action is properly a tort: that is to say, the ground of the action is properly a delict (in the narrower signification of the term to which I have now adverted). But, this notwithstanding, the action is frequently brought on breaches of contracts, and on breaches of quasi-contracts.—The department of the English Law which relates to rights of action, is signally impressed with the disgraceful character of the system: namely, a want of broad and precise principles; and of large, clear, and conspicuous distinctions.

In the language of the Roman Law, the term delict has another and a larger meaning; being co-extensive with the term injury, and signifying any violation of any right or duty. This is the meaning with which I employ the term, unless I employ it expressly with its narrower signification.

Agreeably to the principles of division which I have stated or suggested above, the rights arising from civil delicts, including the relative duties answering to those rights, will be distributed under the two departments, and the various sub-departments, which are sketched or indicated below.

1. Rights arising from civil delicts which are infringements of rights in rem, are the subjects of the erst department: which first department immediately severe into the four following sub-departments.

If the user of a right in rem be prevented or hindered presently, and the preventive cause or hindrance can be removed or abated, the party injured by the prevention or hindrance, may be restored to the ability of exercising the right freely. Rights to such restoration are of two kinds. Some, and most, are rights of action: but others are exercised extra-judicially, and are matter for justification. A right of action to obtain possession of a house, or to procure the abatement of a nuisance which hinders the user of the house, is a right of the former kind. A right of recapturing without resorting to action, is a right of the latter kind. Rights to such restoration, which might be styled significantly and shortly, ‘rights of vindication,’ are the subjects of the first sub-department.

63 If a violated right in rem be virtually annihilated by the injury, the only remedy of which the case will admit is satisfaction to the injured party. Where a prevention or hindrance opposed to the user of a right, has been withdrawn, or has otherwise ceased, satisfaction to the injured party for the past prevention or hindrance is the apt or appropriate remedy. And, generally, the apt or appropriate remedy for a past delict is satisfaction or compensation to the injured party for the damage or inconvenience which the party has suffered through or in consequence of the offence.—Rights to satisfaction, pecuniary or other, are the subjects of the second sub-department.

If the user of a right in rem be prevented or hindered presently, the party injured by the prevention, or hindrance, has commonly a right to satisfaction for damage or inconvenience, as well as a right of restoration to the ability of free exercise.—Rights of vindication combined with rights to satisfaction, are the subjects of the third sub-department.

Where an offence is merely incipient or impending, the offence may be stayed or prevented. For example: Forcible dispossession is prevented, and waste is prevented or stayed, by an interdict or injunction: or if I be threatened with an instant assault, I may prevent the approaching injury by repelling the assailant.—Rights of preventing or staying, judicially or extra-judicially, impending or incipient offences against rights in rem, are the subjects of the fourth sub-department.

2. Rights arising from civil delicts which are infringements of rights in personam, are the subjects of the second department: which second department immediately severs into the three following sub-departments.—First: Rights of compelling judicially or extra-judicially, the specific performance of such obligations as arise from contracts and quasi-contracts: e.g. A right of compelling performance by action or suit: A right to an interdict or injunction, for the purpose of preventing the obligor or debtor from evading the fulfilment of the obligation: A right of retainer or detention, by the creditor or obligee, of a thing or person which belongs to the obligor or debtor, but on which the obligee or creditor has expended money or labour.—Secondly: Rights of obtaining satisfaction, in lieu of specific performance, where obligees or creditors are content with compensation, or where specific performance is not possible, or where specific performance would not be advantageous to creditors, or would be followed by preponderant inconvenience to obligors or 64debtors.—Thirdly: Rights of obtaining specific performance in part, with satisfaction or compensation for the residue.

Note.—I here shall analyse the principles whereon specific performance is rationally compelled. The caprices of the English Law with regard to specific performance, and with regard to the connected matter of recovery in specie, I shall try to explain historically.

Travelling through the rights which arise from civil injuries, I shall note the respective applicability of those various remedies to the various cases of injury previously classed and described.

III. Having classed and described civil injuries, and treated of the rights and duties which civil injuries engender, I shall consider the modes wherein those rights are exercised, and wherein those duties are enforced. In other words, I shall consider civil procedure.

Now the pursuit of rights of action, with the conduct of the incidental defences, are the principal matter of that department of jurisprudence. The consideration of which matter will involve a consideration of the following principal, and of many subordinate, topics:

The rationale of the process styled pleading, with the connected rationale of judicial evidence.

Judicial decisions, with their necessary or more usual concomitants: namely, The interpretation or construction of statute law, or law established in the properly legislative mode: The peculiar process of induction (not unfrequently confounded with the interpretation of statute law) through which a rule made by judicial legislation, is gathered from the decision or decisions whereby it was established: The application of the law, be it statute law or a rule made judicially, to the fact, case, or species obveniens, which awaits the solution of the tribunal.

The judgments, decrees, or judicial commands, which are consequent on judicial decisions. Appeals. Execution of judgments.

Judgments considered as modes of acquisition: that is to say, not merely as instruments by which rights of action are enforced, but as causes of ulterior rights: e.g. as causes of liens, or tacit mortgages, given to plaintiffs on lands or moveables of defendants.

Such judgments or decrees as virtually are mere solemnities adjected to conveyances or contracts. The explanation of which solemnities will involve an explanation of the distinction between voluntary and contentious jurisdiction.

Note.—A right which arises from a judgment is often distinct from the 65right of action which is pursued to judgment and execution. Arising directly from the judgment, it arises not from the injury which is the cause of the right of action, as from a mode of acquisition. Consequently, rights of the kind ought in strictness to be classed with rights which I style primary: that is to say, with rights which do not arise from delicts or offences. But the classing them with primary rights were followed by this inconvenience: that the writer were unable to explain them in a satisfactory manner, unless he anticipated the doctrine of injuries, of rights arising from injuries, and of civil procedure.

As certain rights arising from judgment should in strictness be placed under a foregoing head, so should ‘the functions of judges and other ministers of justice’ be placed under a following: namely, the Law of Persons. But if this matter, which logically belongs to that following bead, were not anticipated under the present, the exposition of civil procedure would be incomplete.

Whoever reads and reflects on the arrangement of a corpus juris, must perceive that it cannot be constructed with logical rigour. The members or parts of the arrangement being extremely numerous, and their common matter being an organic whole, they can hardly be opposed completely. In other words, the arrangement of a corpus juriscan hardly be so constructed, that none of its members shall contain matter which logically belongs to another. If the principles of the various divisions were conceived and expressed clearly, if the departments resulting from the divisions were distinguished broadly, and if the necessary departures from the principles were marked conspicuously, the arrangement would make the approach to logical completeness and correctness, which is all that its stubborn and reluctant matter will permit no to accomplish.

This is the second sub-department of the second of the capital departments under which I arrange or distribute the matter of the Law of Things.

I. Duties are relative or absolute. A relative duty is implied by a right to which that duty answers. An absolute duty does not answer, or is not implied by, an answering right.

As an example of an absolute duty, I may mention a duty to forbear from cruelty to any of the lower animals. For a necessary element of a right (implying or answering the duty) is wanting. There is no person, individual or complex, towards or in respect of whom the duty is to be observed.

I have adduced the foregoing example of an absolute duty, on account of its extreme simplicity, and of the brevity with which it may be suggested. But, as I shall show in my preliminary lectures, absolute duties are very numerous, and many of them are very important. As I shall also show in my 66preliminary lectures, there are three cases wherein a duty is absolute, or wherein it answereth not to an answering right; wherein it answers to nothing which we could call a right, unless we gave to the term so large and vague a meaning, that the term would denote, in effect, just nothing at all. The three cases may be stated briefly, in the following manner.—The duty is absolute, in case there be no person, individual or complex, towards or in respect of whom the duty is to be observed. The duty is absolute, in case the persons, towards or in respect of whom the duty is to be observed, be uncertain or indeterminate. The duty is absolute, in case the only person, towards or in respect of whom the duty is to be observed, be the monarch, or sovereign number, ruling the given community.

Now absolute duties, like relative duties, are primary or sanctioning: that is to say, not arising from injuries, or arising from injuries. Again: Primary rights, with the primary relative duties which respectively answer to those rights, are the only subjects of the capital department to which I have given the title of ‘primary rights and duties.’ But primary absolute duties ought to be placed somewhere. And though the present sub-department be a member of the capital department to which I have given the title of ‘sanctioning rights and duties,’ primary absolute duties may be placed commodiously here. For infringements of duties primary and absolute, belong to the class of delicts which are styled crimes.

Accordingly, I shall here interpolate a description of the primary absolute duties which are not appropriate subjects for the Law of Persons. As I have already remarked, such interpolations of foreign matter cannot be avoided always.

II. Having interpolated a brief description of primary absolute duties, I shall class and describe crimes (be they breaches of primary absolute, or of primary relative duties), with reference to the rights and duties whereof they are respectively infringements.

III. Having classed and described crimes, I shall briefly touch upon the duties (all such duties being absolute) which arise from crimes. I shall also notice briefly those consequences of crimes which are styled, strictly and properly, punishments.

IV. I shall advert to criminal procedure, with what may be called, by a strict application of the name, police. In other words, I shall advert to the modes wherein crimes are pursued to punishment, with the precautions which may be taken to prevent them.

Having made an attempt, at a previous point of my Course, to determine the notion of statusor condition, I shall enter the department of law which is styled the Law of Persons, with an attempt to distribute status or conditions under certain principal and subordinate classes.

Accordingly, I shall divide conditions into private and political.—I shall divide private conditions into domestic (or œconomical) and professional.—Certain conditions nearly related to the domestic, I shall place with the latter: styling the former, by reason of the analogy through which they are so related, quasi-domestic conditions.—Certain conditions which will not bend to my arrangement, I shall place on a line with private and political conditions, and shall style anomalousor miscellaneous.

I shall distribute conditions under three principal classes: 1. Private conditions: 2. Political conditions: 3. Anomalous or miscellaneous conditions. And I shall distribute private conditions under two subordinate classes: 1. Domestic (or œconomical) and quasi-domestic conditions: 2. Professional conditions.

Note.—According to the jurists of ancient Rome, and to the jurists of the modern nations whose law is fashioned on the Roman, the capital or leading division of the entire corpus juris is the division of jus into publicum and privatum. In other words, positive law (considered with reference to its different purposes and subjects) is divided by those jurists, at the outset of the division, into public and private.

Now the name public law has two principal significations: one of which significations is large and vague; the other, strict and definite.

Taken with its large and vague signification, the name will apply indifferently (as I shall show in my lectures) to law of every department. The various writers, therefore, who take it with that signification, determine the province of public law in various and inconsistent ways. According to some, the province of public law comprises political conditions, together with civil procedure, and the law which is styled criminal: that is to say, the department of law which is concerned with crimes; with the duties arising from crimes; with the punishments annexed to crimes; and with criminal procedure and preventive police. According to others, the province of public law embraces criminal law, but excludes civil procedure. According to others, its province rejects both. Whilst others (confounding positive law and positive morality) extend its province to the so-called law of nations, as well as to civil procedure and to the law which is styled criminal. But in one thing all of them agree. All of them distribute the entire corpus juris under two principal and contradistinguished departments: namely, jus publicum and jus privatum. And, consequently, all of 68them contradistinguish their so-called public law to the two principal and opposed departments of their so-called private law: namely, The Law of Persons and The Law of Things. Now, as I shall show in my lectures, this notable division and arrangement of the corpus juris is erroneous and pregnant with error: springing from a perplexed apprehension of the ends or purposes of law, and tending to generate a like apprehension in the helpless and bewildered student. As I shall show also, every department of law, viewed from a certain aspect, may be styled private; whilst every department of law, viewed from another aspect, may be styled public. As I shall show further, public law and private law are names which should be banished the science; for since each will apply indifferently to every department of law, neither can be used conveniently to the purpose of signifying any. As I shall show, moreover, the entire corpus juris ought to be divided, at the outset, into Law of Things and Law of Persons; whilst the only portion of law that can be styled public lawwith a certain or determinate meaning, ought not to be contradistinguished to the Law of Things and Persons, but ought to be inserted in the Law of Persons, as one of its limbs or members.

Taken with its strict and definite signification, the name public law is confined to that portion of law which is concerned with political conditions. Accordingly, I take the name with that its determinate meaning, and I deem that portion of law, a member of the Law of Persons. But, to obviate a cause of misconception, I style that portion of law, The Law of Political Status, or the Law of Political Conditions: suppressing the ambiguous names of public and private law, along with that groundless division of the corpus juris which those opposed names are commonly employed to signify. For, as I have intimated above, the Law of Political Status, like every other portion of the entire corpus juris, might be styled with perfect propriety, public or private: public, when viewed from a certain aspect; private, when viewed from another.

In rejecting the division of law into public and private, in rejecting the names by which the division is signified, and in classing political conditions with conditions of other natures, I am justified by the great authority of our own admirable Hale, as well as by the cogent reasons whereon I shall insist in my lectures. In his Analysis of the Law of England (or rather of the Law of England, excepting the criminal part of it), he classes political conditions (or ‘political relations’) with the private conditions (or ‘relations’) which he styles œconomical. Nor can I discover in any nook of his treatise the slightest trace of the perplexed apprehension which is the source of the division of law into public and private. Even in adverting to criminal delicts, where it was most likely that he would fall into the error, he avoids it. Unlike his imitator, Blackstone, who calls them public wrongs, he styles them criminal wrongs, or matter for Pleas of the Crown: hitting precisely by the last expression the basis of the division of wrongs into civil injuries and crimes. We scarcely can estimate completely the originality and depth of his Analysis, unless we compare it closely with the institutes of Gains or Justinian, and unless we look vigilantly for the instructive but brief hints which abound in every part of it. The only gross mistakes that I have found in his masterly outline are his glaring and strange mistranslation of ‘jus personarum et rerum,’ and his placing under the department assigned to the status of persons, certain rights of persons which he styles their absolute rights. Seeing that all rights are rights of persons, and seeing that things are merely subjects of 69rights, it is clear that the genuine meaning of ‘jus personarum et rerum’ is not very happily rendered by ‘rights of persons and things.’ And as to absolute (commonly denominated natural or innate) rights, they are not matter for the Law of Status, but belong pre-eminently and conspicuously to the contradistinguished department. But, in justice to this great and excellent person, I must add that the former mistake is verbal rather than substantial. Unlike the imitator Blackstone, with his ‘rightsof persons and things,’ Hale seizes, for the most part, the genuine meaning of the distinction, though he thickens the obscurity of the obscure phrases by which the modern Civilians usually express it.—In rejecting the division of law into public and private, and in classing political with other conditions, Hale, I believe, is original, and nearly singular. In an encyclopædia by Falck, a professor of law at Kiel, it is said that the authors of the Danish Code, with those of the Danish writers who treat law systematically, observe, in this respect, the arrangement observed by Hale. But in all the treatises by Continental Jurists which have fallen under my inspection, law is divided into public and private, though the province of public law is variously determined and described.

It is true that Sir William Blackstone also rejects that division, and also considers the law which is concerned with political conditions a member of the Law of Persons. But the method observed by Blackstone in his far too celebrated Commentaries, is a slavish and blundering copy of the very imperfect method which Hale delineates roughly in his short and unfinished Analysis. From the outset to the end of his Commentaries, he blindly adopts the mistakes of his rude and compendious model, missing invariably, with a nice and surprising infelicity, the pregnant but obscure suggestions which it proffered to his attention, and which would have guided a discerning and inventive writer to an arrangement comparatively just. Neither in the general conception, nor in the detail of his book, is there a single particle of original and discriminating thought. He had read somewhat (though far less than is commonly believed); but he had swallowed the matter of his reading, without choice and without rumination. He owed the popularity of his book to a paltry but effectual artifice, and to a poor, superficial merit. He truckled to the sinister interests and to the mischievous prejudices of power; and he flattered the overweening conceit of their national or peculiar institutions, which then was devoutly entertained by the body of the English people, though now it is happily vanishing before the advancement of reason. And to this paltry but effectual artifice he added the allurement of a style which is fitted to tickle the ear, though it never or rarely satisfies a severe and masculine taste. For that rhetorical and prattling manner of his is not the manner which suited the matter in hand. It is not the manner of those classical Roman jurists who are always models of expression, though their meaning be never so faulty. It differs from their unaffected, yet apt and nervous style, as the tawdry and flimsy dress of a milliner’s doll, from the graceful and imposing nakedness of a Grecian statue.

Having distributed status or conditions under the principal and subordinate classes mentioned above, I shall consider them particularly in the following order and manner.

I. I shall review domestic and quasi-domestic conditions: describing the rights and duties, capacities and incapacities, of which they are constituted or composed: and also describing the 70events by which persons are invested with them, or are divested of them.—Of these conditions the following are the principal: namely, The conditions of Husband and Wife: of Parent and Child: of Master and Slave: of Master and Servant: of Persons who by reason of their age, or by reason of their sex, or by reason of infirmity arising from disease, require, or are thought to require, an extraordinary measure of protection and restraint.

Having reviewed domestic and quasi-domestic conditions, in the manner which I have now suggested, I shall review professional conditions (the other leading class of private conditions), in a similar manner.

II. Having reviewed private conditions, in the manner suggested above, I shall review, in a similar manner, political conditions: that is to say, the status or conditions of subordinate political superiors. Of the classes of persons bearing political conditions, the following are the most remarkable. 1. Judges and other ministers of justice. 2. Persons whose principal and appropriate duty is the defence of the community against foreign enemies. 3. Persons invested with rights to collect and distribute the revenue of the state. 4. Persons commissioned by the state to instruct its subjects in religion, science, or art 5. Persons commissioned by the state to minister to the relief of calamity: e.g. overseers of the poor. 6. Persons commissioned by the state to construct or uphold works which require, or are thought to require, its special attention and interference: e.g. roads, canals, aqueducts, sewers, embankments.

Note.—Before I dismiss the matter of the present article, I will request the attention of the reader to the following explanatory suggestions.

1. The monarch properly so called, or the sovereign number in its collegiate and sovereign capacity, is not invested with a status (in the proper acceptation of the term). A status is composed or constituted of legal rights and duties, and of capacities and incapacities to take and incur them. Now, since they are merely creatures of the positive law of the community, and since that positive law is merely a creature of the sovereign, we cannot ascribe such rights and duties to the monarch or sovereign body. We may say that the sovereign has powers. We may say that the sovereign has rights conferred by the Law of God; that the sovereign has rights conferred by positive morality; that the sovereign is subject to duties set by the Law of God; that the sovereign is subject to duties which positive morality imposes. Nay, a sovereign government may have a legal right against a subject or subjects of another sovereign government. But it cannot be bound by legal duties, and cannot have legal rights against its own subjects. Consequently, a sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, is not invested with a status (in the proper acceptation of the term); or it is not invested with a status (in the proper acceptation of the term) derived from the positive law of its own political community.

71 For the sake, however, of shortness, but not without impropriety, we may say that the sovereign bears a status composed or constituted of powers. And, by reason of the intimate connection of that improper statuswith the status(properly so called) of subordinate political superiors, I shall consider the powers of the monarch, or the powers of the sovereign number in its collegiate and sovereign capacity, with the rights and duties of the subordinate political superiors to whom portions of those powers are delegated or committed in trust. Or, rather, I shall consider the powers of the sovereign, at the present point of my Course, in so far as the essentials of the matter may not have been treated adequately in my preliminary lecture on sovereignty and independent political society.

2. The law of political conditions, or public law (with the strict and definite meaning), is frequently divided into constitutional and administrative.

In a country governed by a monarch, constitutional law is extremely simple: for it merely determines the person who shall bear the sovereignty. In a country governed by a number, constitutional law is more complex: for it determines the persons, or the classes of the persons who shall bear the sovereign powers; and it determines, moreover, the mode wherein those persons shall share those powers.—In a country governed by a monarch, constitutional law is positive morality merely: In a country governed by a number, it may consist of positive morality, or of a compound of positive morality and positive law.

Administrative law determines the ends and modes to and in which the sovereign powers shall be exercised: shall be exercised directly by the monarch or sovereign number, or shall be exercised directly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust.

The two departments, therefore, of constitutional and administrative law, do not quadrate exactly with the two departments of law which regard respectively the status of the sovereign, and the various status of subordinate political superiors. Though the rights and duties of the latter are comprised by administrative law, and are not comprised by constitutional law, administrative law comprises the powers of the sovereign, in so far as they are exercised directly by the monarch or sovereign number.

In so far as the powers of the sovereign are delegated to political subordinates, administrative law is positive law, whether the country be governed by a monarch, or by a sovereign number. In so far as the sovereign powers are exercised by the sovereign directly, administrative law, in a country governed by a monarch, is positive morality merely: In a country governed by a number, it may consist of positive morality, or of a compound of positive morality and positive law.

3. It is somewhat difficult to describe the boundary by which the conditions of political subordinates are severed from the conditions of private persons. The rights and duties of political subordinates, and the rights and duties of private persons, are creatures of a common author: namely, the sovereign or state. And if we examine the purposes to which their rights and duties are conferred and imposed by the sovereign, we shall find that the purposes of the rights and duties which the sovereign confers and imposes on private persons, often coincide with the purposes of those which the sovereign confers and imposes on subordinate political superiors. Accordingly, the conditions of parent and guardian (with the answering conditions of child and ward) are not unfrequently treated by writers on jurisprudence, as portions of public law. For example: The patria potestas 72and the tutelaof the Roman Law are treated thus, in his masterly System des Pandekten-Rechts, by Thibaut of Heidelberg: who, for penetrating acuteness, rectitude of judgment, depth of learning, and vigour and elegance of exposition, may be placed, by the side of Von Savigny, at the head of all living Civilians.

At the earliest part of my Course that will admit the subject conveniently, I shall try to distinguish political from private conditions, or to determine the province of public law (with the strict and definite meaning): an attempt which will lead me to examine the current division of law into jus publicum and jus privatum; and which will lead me to explain the numerous and disparate senses attached to the two expressions. I would briefly remark at present, that I merely mean by private persons, persons not political: that is to say, persons not invested with political conditions; or persons bearing political conditions, but not considered in those characters, or not viewed from that aspect. I intend not to intimate by the term private, that private or not political, and public or political persons, are distinguishable by differences between the ultimate purposes for which their rights and duties are respectively conferred said imposed.

III. Having reviewed private and political conditions, in the manner suggested above, I shall review anomalous or miscellaneous conditions in a similar manner.—As examples of such conditions, I adduce the following: namely, the conditions of Aliens: the conditions of Persons incapable of rights by reason of their religious opinions: the conditions of Persons incapable of rights by reason of their crimes.

Note.—In any department of the Law of Persons assigned to a given condition, the rights and duties composing the given condition, would naturally be arranged (in a corpus juris) agreeably to the order or method observed in the Law of Things. For example: Agreeably to the order or method which I have delineated above, the rights and duties composing the given condition, would naturally be divided at the outset, into primary and sanctioning: those primary rights and duties being divided again, into rights in rem, rights in personam, combinations of rights in rem and rights in personam, and so on. And in any department of the Law of Persons assigned to a given condition, the constituent elements of the given condition would naturally be treated with perpetual reference to the principles and rules expounded in the Law of Things.

To the series of lectures briefly delineated above, I shall add a concise summary of the positive moral rules which are styled by recent writers, the positive law of nations, or positive international law: concluding therewith my review of positive law, as conceived with its relations to positive morality, and to that divine law which is the ultimate test of both.

I have drawn and published the foregoing explanatory Outline with two purposes: with the purpose of suggesting to 73strangers the subject and scope of my Course, and with the purpose of enabling my Class to follow my Course easily.

To the members of my Class the outline, I think, will be useful. Many of the numerous topics upon which it touches will be treated in the Course slightly and defectively. But, having those topics before them in a connected and orderly series, they may easily fill the chasms which I shall inevitably leave, with apt conclusions of their own. And every demand for explanation that the outline may suggest to any of them, I shall gladly answer and satisfy to the best of my knowledge and ability.

Such an exposition of my subject as would satisfy my own wishes, would fill, at the least, a hundred and twenty lectures. It would fill, at the least, a hundred and twenty lectures, though every lecture of the series occupied an hour in the delivery, and were packed as closely as possible with strictly pertinent matter.

And, as competent and candid judges will readily perceive and admit, a good exposition of the subject which I have undertaken to treat, were scarcely the forced product of a violent and short effort. It were rather the tardy fruit of large and careful research, and of obstinate and sustained meditation. After a few repetitions, my Course may satisfy my hearers, and may almost satisfy myself. But, until I shall have traversed my ground again and again, it will abound with faults which I fairly style inevitable, and for which I confidently claim a large and liberal construction.

LAW CONSIDERED WITH REFERENCE TO ITS SOURCES, AND WITH REFERENCE TO THE MODES IN WHICH IT BEGINS AND ENDS.

Law made directly, or in the properly legislative manner; and law made judicially, or in the way of improper legislation.—Codification.

Law, the occasions of which, or the motives to the establishment of which, are frequently mistaken or confounded for or with its sources: viz.

Jus moribus constitutum; or law fashioned by judicial decision upon pre-existing custom:

Jus prudentibus compositum; or law fashioned by judicial decision upon opinions and practices of private or unauthorised lawyers:

The natural law of modem writers upon jurisprudence, with the equivalent jus naturale, jus gentium, or jus naturale et gentium, of the classical Roman jurists:

Jus receptum; or law fashioned by judicial decision upon law of a foreign and independent nation:

Distinction of positive law into law and equity, or jus civile and jus prætorium.

75 LAW CONSIDERED WITH REFERENCE TO ITS PURPOSES, AND WITH REFERENCE TO THE SUBJECTS ABOUT WHICH IT IS CONVERSANT.

Principle or basis of that Division, and of the two departments which result from it.

Division of rights, and of duties (relative and absolute) into primary and sanctioning.

Principle or basis of that division, and of the two departments which result from it.

Principle or basis of many of the sub-departments into which those two departments immediately sever: namely, The distinction of rights and of relative duties, into rights in rem with their answering offices, and rights in personam with their answering obligations.

Method or order wherein the matter of the Law of Things will be treated in the intended lectures.

Preliminary remarks on things and persons, as subjects of rights and duties: on acts and forbearances, as objects of rights and duties: and on facts and events, as causes of rights and duties, or as extinguishing rights and duties.

Lect. XLVII, &c.
Only a part of this first sub-department is filled up. The remainder of this outline not filled up.

Rights in rem as existing per se, or as not combined with rights in personam.

Rights in personam as existing per se, or as not combined with rights in rem.

Such of the combinations of rights in rem and rights in personam as are particular and comparatively simple.

Such universities of rights and duties (or such complex aggregates of rights and duties) as arise by universal succession.

Delicts distinguished into civil injuries and crimes: or rights and duties which are effects of civil delicts, distinguished from duties, and other consequences, which are effects of criminal.

Distribution of status or conditions under certain principal and subordinate classes.