Austin, Lectures on Jurisprudence, 5th ed., vol. 1, lecture 13

In my last Lecture, I distinguished Obligations or Duties into positive and negative; and indicated generally and briefly the nature of that important distinction.

I also distinguished Obligations into relative and absolute: that is to say, obligations which correlate with, or correspond or answer to rights; and obligations which neither imply, nor are implied by, rights. And, for the reason which I then assigned, I began with the analysis of rights (and of the obligations implied by rights); and deferred all further remark upon the nature of absolute obligations, till that analysis should be completed.

But, since rights reside in persons, and since persons, things, acts, and forbearances are the subjects or objects of rights, it was necessary that I should advert to the significations of those several related expressions, before I could address myself to rights and to the obligations with which they correlate.

Accordingly, I distinguished persons into physical or natural, and legal or fictitious: that is to say, into persons, properly and simply so called; and persons which are such by a fiction, and for the sake of brevity in discourse.

I then stated the meaning which I attach to the term ‘person,’ as signifying a physical or individual person. I endeavoured to demonstrate, that the extensive meaning which I attach to the term, coincides with the meaning which was annexed to it by the Roman Lawyers. And I distinguished that meaning from another and a very different meaning in which they frequently employ it: namely, not as signifying physical or individual persons, but as signifying the conditions or status which are borne or sustained by the former.

In conclusion, I enumerated the kinds of persons which are persons by virtue of fictions; and I also pointed at the design which those fictions are intended to answer. But inasmuch as fictitious persons are of widely differing natures, and inasmuch as the ideas which they denote are for the most part extremely complex, I deferred all further consideration of them till I should descend to the detail of the science.

Having considered the import of person, I proceed to the significations of Thing, Act and Forbearance.

358 Things are such permanent objects, not being persons, as are sensible or perceptible through the senses. Or (changing the expression) things are such permanent external objects as are not persons. Such (for example) is a field, a house, a horse, a garment, a piece of coined gold. Such is a quantity of coined or uncoined gold, determined or ascertained by number or weight. Such is a quantity of cloth, corn, or wine, determined or ascertained by measure.

Things are opposed, on the one hand, to persons themselves; and are contradistinguished, on the other, from the acts of the persons, and from the rest of the transient objects which are denominated facts or events.

Things resemble persons in this: That they are permanent external objects; or objects which are permanent, and sensible or perceptible through the senses. They differ from persons in this: That Persons are invested with rights and subject to obligations, or, at least, are capable of both: Things are essentially incapable of rights or obligations; although (by a fiction) they are sometimes considered as persons, and rights or obligations are ascribed or imputed to them accordingly.

They resemble facts or events in this: That they are incapable of rights or obligations. They differ from facts or events in this: That things are permanent external objects; whilst facts or events are transient objects, and consist of determinations of the will, with other affections of the mind; as well as of objects perceptible through the senses.

In drawing the line, by which Persons and Things are separated from Events, I content myself with vague expressions, and am far from aspiring to metaphysical precision. If I attempted to describe the boundary with metaphysical precision, I should run into enquiries which my limits imperiously forbid, and which were scarcely consistent with the purpose of these discourses. If I endeavoured to define exactly the meaning of ‘permanent object,’ I should enter upon the perplexing question of sameness or identity. If I endeavoured to define exactly the meaning of ‘sensible object,’ I should enter upon the interminable question about the difference between mind and matter, or percipient and perceived. And, in either case, I should thrust a treatise upon Intellectual Philosophy into a series of discourses upon Jurisprudence.

Accordingly, now that I have indicated rather than determined the boundary, I must leave my hearers to settle it for themselves, according to their own fashion. I must leave them 359to distinguish, after their own fashion, between objects which are perceptible through the senses, and objects which are not; between sensible objects which are permanent, and are things (strictly so called), and sensible objects which are transient, and are ranked with facts or events. The discretion which prompts my reserve will be understood by those who have turned a portion of their attention to the Philosophy of the Human Mind, and will meet with approbation rather than censure. Those who are ignorant of what is styled Metaphysic frequently run, without knowing it, into ill-timed metaphysical speculation. Those who are versed in Metaphysic, know the occasions for abstaining from it, as well as the occasions on which it can be applied to advantage.

But, in order that we may keep clear of a very perplexing ambiguity, I will remark for a moment upon two distinct significations of ‘permanent’ and ‘transient.’ And this remark I am compelled to interpose, inasmuch as it regards a distinction which strictly belongs to Jurisprudence, whether it be metaphysical or not.

Sensible objects, or objects perceptible through the senses, are permanent or transient. The former are persons or things: the latter rank with the objects which are denominated facts or events.

Now when it denotes a thing, as contradistinguished from an event, the import of the expression ‘permanent sensible object,’ is (I think) this: It denotes an object which is perceptible repeatedly, and which is considered by those who repeatedly perceive it, as being (on those several occasions) one and the same object. Thus, the horse or the house of to-day is the horse or house of yesterday; in spite of the intervening changes which its appearance may have undergone.

The transient sensible objects which rank with facts or events, are not perceptible repeatedly. They exist for a moment: disappear: and never recur to the sense, although they may be recalled by the memory. Such (I think) is the distinction (indicated in very general expressions) between the term ‘permanent,’ as applied to things, and the term ‘transient’ as applied to sensible events. And, taking the terms in these significations, all things are permanent, and no things are transient.

But, taking the terms in other significations, things may be distinguished into permanent and transient, or into such as are more permanent and such as are less permanent. For some are more enduring; others are less enduring. In other words, some 360retain the forms which give them their actual names for a longer period: some retain those forms for a shorter period, or corrupt, decay, and perish speedily.

The purpose of this distinction will appear clearly, when I consider the kinds and sorts into which things are divisible: especially the kind of things which have been styled fungible, and the sort of fungible things quæ usu consumuntur.

Resuming the definition of a thing, I mean by a thing (as contradistinguished from an event) any permanent external object not a person. Or (changing the expression) I mean by a thing (as contradistinguished from an event) any sensible object, not being a person, which is capable of being perceived repeatedly, or is capable of recurring to the sense.

The distinctions between Things, or the various genera and species under which they are distributed, will be considered hereafter. For, though these distinctions are derived (in part) from the physical differences between things, they are also derived (in part) from the differences between rights and obligations; and are just as factitious, or as completely the work of Law, as the rights and obligations of which things are the subjects. Consequently, a statement of the distinctions between Things (as subjects of the science of Jurisprudence) must be preceded by a general statement of the distinctions between rights and duties.

From the import of the term thing (as opposed to person and event) I proceed to certain ambiguities by which it is perplexed and obscured.

And, first, ‘res’ or thing (as used by the Roman Lawyers) is frequently extended from things (strictly so called) to acts and forbearances considered from a particular aspect: namely, considered as the objects of obligations, and of the rights corresponding to obligations. For example, If you are bound by virtue of a contract to do certain acts (as to perform work and labour in repairing a house); or if you are bound by virtue of a contract to forbear from certain acts (as to forbear from exercising a trade within certain limits), the acts or forbearances to which you are obliged, and to which the opposite party has a correlating or corresponding right, are res or things (in the sense which I am now considering). Strictly speaking, the act or forbearance is not a thing. It is not a permanent external object. Strictly speaking, it is the object or end of the right, and of the obligation which corresponds to the right; or it is the purpose for the accomplishment of which the right and the obligation exist.

1st, Things (strictly so called): that is to say, permanent external objects not persons. 2ndly, Persons, as considered from an aspect to which I shall advert immediately: that is to say, not as having rights, or as being bound by obligations, but as the subjects or objects of rights and obligations residing in, or incumbent upon others. 3rdly, Acts and Forbearances, considered from the aspect to which I have alluded already: that is to say, as the object of rights and obligations.

By ‘incorporeal things,’ they understood not the subjects of rights and obligations, but rights and obligations themselves: ‘Ea quæ in jure consistunt:’ velut ‘jus hereditatis,’ ‘jus utendi fruendi,’ ‘jus servitutis,’ ‘obligationes, quoquo modo contractæ.’

By ‘corporeal’ they meant sensible or perceptible through the senses: Or (in that philosophical jargon which they borrowed from the Greeks) they meant by ‘corporeal,’ tangible. For, in the language of the Stoics, and also of the Epicureans, all the various senses were considered as organs of touch; or all sensations, as modifications of the sensation of touch.⁴⁰

⁴⁰

‘Pondus uti saxis, calor ignibus, liquor aquai
Tactus corporibus cunctis, intactus Inani.’

‘Tactus enim, Tactus, proh Divum numina sancta!
Corporis est sensus, vel cum res extera sese
Insinuat, vel cum lædit, quæ in corpore nata est.’

Lucretius, Lib. I. & II.

And taking ‘corporeal’ and ‘tangible’ in that sense, res corporeales or res quæ tangi possunt, will not only comprise things (in the strict signification of the term), but also acts (as the objects of rights and obligations). For every act which can be the object of a right or obligation, is an act external or perceptible by sense. To forbearances, indeed, the term res corporales will not apply strictly. For all forbearances are mere determinations of the will. But it was probably extended to forbearances which are the objects of rights and obligations, partly for the sake of convenience, and partly because the acts to be forborne are tangible or sensible.

In the language, then, of the Roman Lawyers, the term res has two significations which are widely different, 1st, It denotes Things, Acts, and Forbearances, as the subjects or objects of rights and obligations, and it sometimes denotes persons considered from 362that same aspect. 2ndly, It denotes Rights and Obligations themselves.

In the English Law, we have this same jargon about ‘incorporeal things’⁴¹ (derived from the Stoical Philosophy through the Roman Law), applied less extensively. With us, all rights and obligations are not incorporeal things; but certain rights are styled incorporeal hereditaments, and are opposed by that name to hereditaments corporeal. That is to say, rights of a certain species, or rather of numerous and very different species, are absurdly opposed to the things (strictly so called) which are the subjects or matter of rights of another species.

⁴¹ Blackstone, Vol. ii. c. 3.

The ‘Incorporeal Hereditaments’ of the English Law are not exactly equivalent to the ‘Res Incorporales’ of the Roman. The difference is occasioned by the difference in the English law between the descent or devolution of moveables and immoveables; including in the first jura ad rem, or most of them. Hæreditas or obligatio = an incorporeal, not hereditament,—for they devolve not upon heirs,—but thing, going to executors or administrators, or to those who are entitled to that office.—Marginal note in the page referred to.

And lower down (same page): Like ‘property’ (the more extensive right) it is a collective name; and, by consequence, has no one thing or incident corresponding to it.—Marginal note.

The word hereditaments is evidently taken in two senses, in the two phrases which stand to denote the species of hereditaments. A corporeal hereditament is the thing itself which is the subject of the right; an incorporeal hereditament is not the subject of the right, but the right itself.

I observed, in my last Lecture, that the slave is styled by the Roman Lawyers a ‘person.’ And considered as bearing a condition, and as bound by obligations, he is a person. But considered as the subject of the dominion which resides in the master (a right which the master can assert against the rest of the world), he is sometimes styled a thing. For example, In case he be unjustly detained by a third party, the master may recover him by that peculiar action which is styled rei vindicatio: an action which was confined to the recovery of things; and which could not be brought by the father for the purpose of recovering his son; although the patria potestas (or right of the father in the son) was closely analogous to the dominion of the master.

This is utterly capricious. For, if the slave is a thing (as the subject of the master’s right), so should every person be considered as a thing, where he is the subject of a right residing in another. In this sense, almost every person is a thing. For there is scarcely a person who is not the subject of a right, which resides in another person, and avails against the world at large. For instance: A servant, in our own country, is the 363subject of rights residing in his master; not only of the rights which the master enjoys by contract over the servant himself, but of rights in him availing against the world. If a third party were to seduce the servant from his master’s service, or to maltreat him, so as to disable him from performing his service, this would be an offence against the right of the master in the servant. Such, again, is the case of a husband and a wife. There are in all such cases two distinct rights, that of the one person against the other, and that of the one person in the other as against third parties. Such cases are very numerous, as will be shown hereafter. Rights may be had in persons, just as they may be had in things; and there is no difference between the cases, except that in one case the subject is a person, in the other the subject is a thing. In the same sense, therefore, in which the slave is sometimes called a thing, all persons whatever might be so styled. There are, however, very few cases in which the slave is styled a thing (even when he is considered as the subject of the master’s dominion). Generally speaking, he is styled homo, or servilis persona (even when considered under that aspect): For instance, when he is considered as the subject of the ancient and formal conveyance called mancipatio (Gaius, I. § 120).

I shall take this occasion of recalling your attention to the double meaning of persona in the Roman law as signifying, sometimes a physical or real person, and sometimes a status or condition: for the purpose of observing that the last acceptation of persona, combined with that of res as denoting in certain cases rights and obligations, throws considerable light on the celebrated distinction between jus rerum and jus personarum; phrases which have been translated so absurdly by Blackstone and others—rights of persons and rights of things. Jus personarum did not mean law of persons or rights of persons, but law of status or condition. A person is here not a physical or individual person, but the status or condition with which he is invested. It is a remarkable confirmation of this that Gaius, in the margin, purporting to give the title or heading of this part of the law, has entitled it thus, De conditione hominum: and Theophilus, in translating the Institutes of Justinian from Latin into Greek has translated jus personarurm—ἡ τῶν προσώπων διαίρεσις—Divisio personarum: understanding evidently by persona or πρόσωπον not an individual or physical person, but the status, condition, or character borne by physical persons. This distinctly shows the meaning of the phrase jus personarum, which 364has been involved in impenetrable obscurity by Blackstone and Hale. The law of persons is the law of status or condition; the law of things is the law of rights and obligations, considered in a general manner or as distinguished from those peculiar collections of rights and obligations which are styled conditions, and considered apart.

From the same ambiguity arose the mistake of supposing that jura in rem must have something to do with things; whereas the phrase really denotes rights which avail generally as distinguished from those which avail only against some determinate individual.