Austin, Lectures on Jurisprudence, 5th ed., vol. 1, lecture 14

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 meaning of those several related expressions, before I could address myself immediately to rights and their corresponding duties.

Accordingly, in the last Lecture, I considered the term ‘Person,’ and the term ‘Thing.’

In the present Lecture I shall point at the respective significations of ‘Act’ and ‘Forbearance,’ and shall consider briefly an important distinction which obtains between rights themselves:—A distinction of which we must seize the general scope or import, before we can understand, and can express adequately and correctly, that nature or essence which is common to all rights.

Persons and Things are objects external and permanent. Or persons and things may be distinguished from other objects, in the following manner:

2ndly. A person or thing is perceptible repeatedly, or is capable of recurring to the sense.

3rdly. A person or thing recurring to the sense is considered by him who repeatedly perceives it as being, on those several occasions, one and the same object.

365 Things are such permanent external objects as are not Persons; that is to say, as are not physical or individual persons; as are not men (in the largest signification of the term); or (using the term ‘men’ in its narrower import) as are not men, women, or children.

Facts, Events, or Incidents, may be distinguished from Persons and Things in the following manner. 1st. Every person or thing is a sensible object. Of events, some are perceptible by sense; but some are determinations of the will, or other affections of the mind.

2ndly. Every person or thing is a permanent sensible object. But an event perceptible by sense (like every other event) is transient. That is to say, an event perceptible by sense, is not perceptible repeatedly. It exists for a moment: Then, ceases to exist: And never recurs to the sense, although the memory may recal it.

Events are simple, single, or individual; or they are complex. A simple event is incapable of analysis; or is considered incapable of analysis. A complex event is a number of simple events, marked (for the sake of brevity) by a collective name. The importance of this distinction will appear clearly, when I consider events more in detail: especially, when I consider them as causes of rights and duties, and of the termination of rights and duties.

Before I proceed to the terms ‘Act’ and ‘Forbearance,’ I will offer a brief remark upon the terms which are now in question.

The terms ‘fact’ and ‘incident’ are sometimes synonymous with the term ‘event.’ But, not unfrequently, ‘fact’ is restricted to human acts and forbearances, and ‘incident’ employed in a sense to which I shall advert hereafter. Consequently, the objects which I am endeavouring to distinguish from persons and things, are best denoted by the term ‘events.’ ‘Event’ is adequate and unambiguous: It will always apply to any of the objects in question. ‘Fact’ and ‘incident’ are ambiguous. Taken in one signification, each of them will apply to any of the objects in question. Taken in another signification, it applies exclusively to events of a class.

The only class of events to which I advert at present, are human acts and forbearances.

Now human acts or actions are internal or external.⁴² In 366other words, they are not perceptible by sense, or they are perceptible by sense. Internal acts are determinations of the will. External acts are such motions of the body as are consequent upon determinations of the will. Determinations of the will, and such motions of the body as are consequent upon determinations of the will, are (I conceive) the only objects to which the term ‘act’ can be applied with propriety. It is scarcely applicable to those motions of the body which are involuntary: that is to say, which are involuntary (in the large acceptation of the term), or are not consequent upon determinations of the will. If (for example) you plunged into the water purposely, the motions of your body consequent upon the act of your will would be considered an act, or a series of acts. But if you fell into the water without design, the descent of your body into the water would hardly be styled an act, although it would be called an event.

Nor is the term ‘act’ applicable to those affections of the mind which are frequently styled passive: that is to say, which are not determinations of the will. Whether it will apply to these, without a solecism, seems to be doubtful. But we certainly read and hear of ‘acts of the will;’ and I think that the term may be extended to determinations of the will, consistently with general usage. At all events, I shall take leave to consider them as belonging to the class of acts: styling them, by way of distinction, ‘acts of the will,’ or ‘acts internal.’

A Forbearance is a determination of the will, not to do some given external act. Or (taking the notions which the term includes in a different order) a forbearance is the not doing some given external act, and the not doing it in consequence of a determination of the will. The import of the term is, therefore, double. As denoting the determination of the will, its import is positive. As denoting the inaction which is consequent upon that determination, its import is negative.

This double import should be marked and remembered. For mere inaction imports much less than forbearance or abstinence from action.

In popular and loose language, a culpable forbearance (or a forbearance which is a violation of some law or rule) is not styled a ‘forbearance,’ but is ranked with omissions. But an omission (properly so called) is widely different from a culpable 367forbearance. A culpable forbearance is an act of the will, or supposes an act of the will. An omission is not the consequence of an act of the will, but of that state of the mind which is styled ‘negligence,’ and implies the absence of will and intention. Accordingly, I apply the term ‘forbearance’ to all voluntary inaction, or to all inaction which is consequent upon volition. Those forbearances which are violations of laws or rules, may be styled, by way of distinction, unlawful, unjust, or culpable.

And here I dismiss for the present the terms ‘Act’ and ‘Forbearance.’ Before we can settle the import of these expressions, we must settle the import of the term ‘Will,’ and of the inseparably connected term ‘Intention.’ But these I shall consider (in conjunction with ‘Negligence’ and ‘Rashness’) when I endeavour to determine the nature of ‘Injuries’ and ‘Sanctions;’ and to distinguish the compulsion and restraint which are styled ‘Obligation,’ from the compulsion and restraint which operate not upon the will, and may be styled ‘merely physical.’

From Persons, Things, Acts and Forbearances, I proceed to analyse, in a general and concise manner, an important distinction which obtains between Rights, and between the duties or obligations which are implied by rights. But in order that you may follow this analysis with greater ease, I introduce it with the following assumptions, and with the following explanatory remarks. The truth of the assumptions will be proved hereafter. I introduce them here for the purpose of facilitating apprehension.

1st. External Acts and Forbearances (or, briefly, Acts and Forbearances) are the objects of duties. Changing the expression, the ends or purposes for which duties are imposed are these; that the parties obliged may do or perform acts, or may forbear or abstain from acts. The acts or forbearances then to which the obliged are bound, I style the objects of duties.

2ndly. The objects of relative duties, or of duties which answer to rights, may also be styled the objects of the rights in which those duties are implied. In other words, all rights reside in persons, and are rights to acts or forbearances on the part of other persons. Considered as corresponding to duties, or as being rights to acts or forbearances, rights may be said to avail against persons. Or, changing the expression, they are capable of being enforced judicially against the persons who are bound to those acts or forbearances. The acts or forbear368ances, then, to which these persons are bound, may be called the objects, not only of the duties themselves, but of the rights corresponding to these duties.

3rdly. Of rights, some are rights over things or persons, or in or to things or persons. Others are not rights over things or persons, or in or to things or persons. All rights over things or persons are of that class of rights which avail against persons generally, or (in other words) which avail against the world at large.

Of rights which are not rights over things or persons, some are of the class of rights which avail against persons generally. Others avail exclusively against persons certain or determinate, or against persons who are determined individually.

Where a right is a right over a thing, or (changing the shape of the expression) in or to a thing, I style the thing over which it exists the subject or matter of the right. I thus distinguish it from acts and forbearances, considered as the objects of rights.

Where a right is a right over a person, I also style the person over whom it exists the subject of the right. For a person, considered from this aspect, is placed in a position resembling the position of a thing which is the subject or matter of a right. Considered from this aspect, he is not considered as invested with rights, nor is he considered as lying under duties or obligations. He is considered as the subject of a right which resides in another person, and which answers to duties or obligations incumbent upon third persons.

For example, the relation of master and servant implies two rights which are utterly distinct and disparate. The master has a right, which avails against the servant specially, to acts and forbearances on the part of the servant himself. The master has also a right over or in the servant, which avails against other persons generally, or against the world at large. With respect to the first of these rights, the servant lies under obligations answering to the right of the master. But with respect to the second of these rights, he is placed in a position resembling the position of a thing which is the subject or matter of a right. With respect to that right, he lies under no obligations. He is merely the subject of a right which resides in his master, and which avails (not against himself) but against third persons.

All rights reside in persons, and are rights to acts or forbearances on the part of other persons. And acts and 369forbearances, considered from this aspect, I would style the objects of rights, and of the corresponding duties or obligations. But some rights are rights over persons or things: Or (changing the shape of the expression) they are rights in or to persons or things. And persons and things, considered from this aspect, I would style the subjects of those rights, and of the duties which answer to those rights.

And here I will briefly remark, that the term ‘subject,’ as applied to a person, is somewhat ambiguous. A person is subject to a duty, when he is bound by the duty, or the duty is incumbent upon him. He is the subject of a duty, when the duty is not incumbent upon himself, but he is merely that about which the duty is conversant. To recur to the example which I have just cited: As between himself and his master, the servant is subject to a duty: that is to say, a duty is incumbent upon him. But he is the subject of the duty which is incumbent upon third persons towards his master.

The distinction between Rights which I shall presently endeavour to explain, is that all-pervading and important distinction which has been assumed by the Roman Institutional Writers as the main groundwork of their arrangement: namely, the distinction between rights in rem and rights in personam; or rights which avail against persons generally or universally, and rights which avail exclusively against certain or determinate persons.

The terms ‘jus in rem’ and ‘jus in personam’ were devised by the Civilians of the Middle Ages, or arose in times still more recent. I adopt them without hesitation, though at the risk of offending your ears. For of all the numerous terms by which the distinction is expressed, they denote it the most adequately and the least ambiguously. The terms which were employed by the Roman Lawyers themselves, with various other names for the classes of rights in question, I shall explain briefly hereafter.

At present, I will merely point at an ambiguity which perplexes and obscures the import of jus in rem.

The phrase in rem denotes the compass, and not the subject of the right. It denotes that the right in question avails against persons generally; and not that the right in question is a right over a thing. For, as I shall show hereafter, many of the rights, which are jura or rights in rem, are either rights over, or to, persons, or have no subject (person or thing).

The phrase in personam is an elliptical or abridged expres370sion for ‘in personam certam sive determinatum.’ Like the phrase in rem, it denotes the compass of the right. It denotes that the right avails exclusively against a determinate person, or against determinate persons.

Before I proceed to the distinction between the two classes of rights, I must yet interpose a remark relating to terms.

In the language of the Roman Law, and of all the modem systems which are offsets from the Roman Law, the term ‘Obligation’ is restricted to the duties which answer to rights in personam. For the duties which answer to rights availing against persons generally, the Roman Lawyers had no distinctive name. They opposed them to Obligations (in the strict or proper sense) by the name of Offices or Duties: Though office or duty is a generic expression; and comprises Obligations (in the strict or proper sense) as well as the duties which answer to rights in rem.

This limitation of the term ‘Obligatio’ by the Roman Lawyers must be carefully noted. Unless it be clearly understood, their writings, as well as those of most Continental Jurists, will appear an inexplicable riddle. Three-fourths of those who in our own country profess to read and talk about the French Code, cannot possibly understand a word of it, by reason of the sense in which this word is employed therein.

Having premised these remarks, I proceed to state and to illustrate the important distinction in question, with all the brevity which is consistent with clearness.⁴³

Rights in rem may be defined in the following manner:—‘Rights residing in persons, and availing against other persons generally.’ Or they may be defined thus:—‘Rights residing in persons, and answering to duties incumbent upon other persons generally.’ By a crowd of modem Civilians, jus in rem has been defined as follows:—‘facultas homini competens sine respectu ad certam personam,’ a definition I believe invented by Grotius.

The following definitions will apply to personal rights:—‘Rights residing in persons, and availing exclusively against persons specifically determinate’:—Or, ‘Rights residing in persons, and answering to duties which are incumbent exclusively on persons specifically determinate.’⁴⁴ By modern 371Civilians, a personal right is commonly defined in the following manner:—‘facultas homini competens in certam personam.’ This definition also, like the former, was, I believe, devised by Grotius: in neither of them is there any great merit.

⁴⁴ An obligation attaches exclusively upon a determinate person or persons. Where it is capable of attaching upon indeterminate persons (as e.g. the representative of the obligor in cases of contracts, some obligations ex delicto, etc.), it is only capable of attaching upon them as representing the original obligors. It never extends beyond the successor, singular or universal, of the original obligor.

A right in personam avails exclusively against the obligor, though the obligor may be prevented from performance by a third party.

According to these definitions, a right of the first class and a right of the second class are distinguishable thus: The duty which correlates with the latter is restricted to a person or persons specifically determinate. The duty which correlates with the former attaches upon persons generally.

But though this be the essence of the distinction, these two classes of rights are further distinguishable thus. The duties which correlate with rights in rem, are always negative: that is to say, they are duties to forbear or abstain. Of the obligations which correlate with rights in personam, some are negative, but some (and most) are positive—that is to say, obligations to do or perform.

As every imaginable right belongs to one of these classes, or else is compounded of rights belonging to each of these classes, it is manifest that a full exposition of this all-pervading distinction were nearly equivalent to a full exposition of the entire science of Law. Leaving the fuller exposition of it for future Lectures, I shall merely endeavour, at present, to give the clue to its import, by adducing as briefly as possible a few apt examples.

1st. Ownership or Property (equivalent to Dominion, in its strict or proper signification) is a term of such complex and various meaning that I must defer the full and accurate explanation of it to a future opportunity. But, in order to the illustration of the distinction which I am endeavouring to exemplify and explain, Ownership or Property may be described accurately enough, in the following manner: ‘the right to use or deal with some given subject, in a manner, or to an extent, which, though it is not unlimited, is indefinite.’

Now in this description it is necessarily implied, that the law will protect or relieve the owner against every disturbance of his right on the part of any other person. Changing the expression, all other persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of the right.

372 But, here, the duties which correspond to the right of property terminate. Every positive duty which may happen to concern or regard it, is nevertheless foreign or extraneous to it, and flows from some incident specially binding the party upon whom the duty is incumbent: for instance, from a contract or covenant into which he enters with the owner, or from a delict which he commits against his right of ownership. In other words, every such positive duty is restricted to a deteminate person, and is, therefore, an Obligation (in the sense of the Roman Lawyers). And even a duty which is negative and regards the right of ownership, is not an obligation corresponding to that very right, in case the vinculum be special: that is to say, not attaching indefinitely upon mankind at large, but binding some certain person, or some certain persons, and arising from some incident which exclusively regards the obliged. An obligation, however, in the sense of the Roman Lawyers, or a duty binding a determinate person, may, whether positive or negative co-exist with the duties which correspond to the right of property, by reason of some incident which superadds to the ownership a right in personam. Thus if in selling you an estate I enter into a covenant not to molest you in the possession of it, or into a covenant for further assurance, you enjoy, besides your right of ownership, which avails and can be enforced against the world at large, another right arising out of the covenant, and which avails solely against me. Or if I trespass on land of which you are the owner, I become amenable to an obligation ex delicto, which is superadded to the duties incumbent upon me and all other persons in respect of your ownership.

Ownership or Property, is, therefore, a species of Jus in rem. For ownership is a right residing in a person, over or to a person or thing, and availing against other persons universally or generally. It is a right implying and exclusively resting upon obligations which are at once universal and negative.

Where the subject of a right in rem happens to be a person, the position of the party who is invested with the right wears a double aspect. He has a right (or rights) over or to the subject as against other persons generally. He has also rights (in personam) against the subject, or lies under obligations (in the sense of the Roman Lawyers) towards the subject. But this is a matter to which I shall revert presently.

2ndly. The Servitudes of the Roman Law, and of the various modern systems which are modifications of the Roman Law, may also be adduced as examples of rights in rem.

373 Servitus (for which the English ‘Easement’ is hardly an adequate expression) is a right to use or deal with, in a given and definite manner, a subject owned by another. Take, for instance, a Right of Way over another’s land. Now according to this definition, the capital difference between Ownership and Servitus is the following:—The right of dealing with the subject which resides in the owner or proprietor, is larger, and, indeed, indefinite: That which resides in the party who is invested with a right of servitude, is narrower and determinate.

But in respect of that great distinction which I am now endeavouring to illustrate, the Right of Ownership or Property, and a Right of Servitude, are perfectly equivalent rights. Servitus (like Ownership) is a right in rem. For it avails against all mankind (including the owner of the subject). Or (changing the expression) it implies an obligation upon all (the owner again included) to forbear from every act inconsistent with the exercise of the right.

But this negative and universal duty, is the only obligation which correlates with the jus servitutis, or which corresponds to that very right. Every special obligation which happens to regard or concern it, is nevertheless foreign or extraneous to it, and answers to some right of the opposite or antagonist class.

Suppose, for example, that the servitude has been constituted (or granted) by the actual owner of the subject. And suppose that the owner has also contracted with the grantee not to molest him in the enjoyment or exercise of the right, Now, here, the granter of the servitude lies under two duties which are completely distinct and disparate:—One of them arising from the grant, and answering to the right which it creates;—the other arising from the contract by which he is specially bound, and answering to the right in personam which the contract vests in the grantee. In case he molest the grantee in the exercise of the servitude, the injury is double, though the act is single. By one and the same act, he violates an Officium which he shares with the rest of mankind, and he also breaks an Obligation (in the sense of the Roman Lawyers) which arises from his peculiar position.

Having given an example or two of real rights (or of rights which correspond to duties general and negative), I will now adduce examples of personal rights: that is to say, rights which avail exclusively against persons certain or determinate, or which correlate with obligations, incumbent upon determinate persons, to do or perform, or to forbear or abstain.

374 All Rights arising from Contracts belong to this last-mentioned class: although there are certain cases (to which I shall presently advert) wherein the right of ownership, and others, of the same kind, are said (by a solecism) to arise from Contracts, or are even talked of (with flagrant absurdity) as if they arose from Obligations (in the sense of the Roman Lawyers).

Rights, which, properly speaking, arise from Contracts, avail against the parties who bind themselves by contract, and also against the parties who are said to represent their persons: that is to say, who succeed on certain events to the aggregate or bulk of their rights; and, therefore, to their faculties or means of fulfilling or liquidating their obligations. But as against parties who neither oblige themselves by contract, nor represent the persons of parties who oblige themselves by contract, the rights, which, properly speaking, arise from contracts, have no force or effect.

Suppose (for example) that you contract with me to deliver me some moveable;⁴⁵ but, instead of delivering it to me in pursuance of the contract, that you sell and deliver it to another.

⁴⁵ If the contract to deliver, however, be causâ venditionis, the transaction is one which in English law depends for its effect as to third parties on a variety of circumstances. This arises from the peculiar theory of English law that the property in moveables is transferred by a sale in specie without reference to the fact of delivery. The confusion introduced by this doctrine, and the various expedients resorted to for the purpose of avoiding most of its practical consequences (e.g. the Bills of Sales Act; the equitable doctrines of vendor’s lien, the equitable rules as to notice, etc.), are examples of the inconvenience which arises from the pretension of our Courts to ignore the principles of the Roman law, while compelled by the exigencies of commerce to adopt the results of those principles.—R. C.

Now, here, the rights which I acquire by virtue of the contract, are the following.

I have a right to the moveable in question as against you specially. So long as the ownership and the possession continue to reside in you, I can force you to deliver me the thing in specific performance of contract; or, at least, to make me satisfaction, in case you detain it. After the delivery to the buyer, I can compel you to make me satisfaction for your breach of the contract with me.

But here my rights terminate. As against strangers to that contract, I have no right whatever to the moveable in question. And, by consequence, I can neither compel the buyer to yield it to me, nor force him to make me satisfaction as detaining a thing of mine. For ‘obligationum substantia non in eo consistit ut aliquod nostrum faciat, sed ut alium nobis obstringat ad dandum aliquid, vel faciendum vel præstandum’ [Or rather, ‘ad faci375endum’ (including ‘dandum’) vel ‘non faciendum.’ ‘Præstandum’ seems to include both.]

But if you deliver the moveable, in pursuance of your contract with me, my position towards other persons generally assumes a different aspect. In consequence of the delivery by you and the concurring apprehension by me, the thing becomes mine. I have jus in rem: I have a right over the thing, or a right in the thing, as against all mankind: A right which answers to obligations universal and negative. And, by consequence, I can compel the restitution of the thing from any who may take it or detain it, or can force him to make me satisfaction as for an injury to my right of ownership. In the language of Heineccius (a celebrated Civilian of the last century), ‘Ubi rem meam invenio, ibi eam vindico: sive cum eâ personâ negotium mihi fuerit, sive non fuerit. Contra, si a bibliopolâ librum emi, isque eum nondum mihi traditum vendiderit iterum Sempronio, ego sane contra Sempronium agere nequeo: quia cum Sempronio nullum mihi unquam intercessit negotium. Sed agere debeo adversus bibliopolam a quo emi: quia ego ex contractu, i.e. ex jure ad rem.’

All rights which arise from contracts and (speaking generally) all rights in personam, are rights to acts or forbearances on the part of determinate persons, and to nothing more. At first sight, that species of jus in personam which is styled jus ad rem may appear to form an exception. It may seem that the party who is invested with the right, has a right to a thing, or a right in a thing, as against the party who lies under the corresponding obligation. But, in every case of the kind, the right of the party entitled amounts, in strictness, to this: He has a right to arquire the thing from the opposite party, or to compel the party to make the thing his by an act of conveyance or transfer. It is only by an ellipsis, or for the sake of brevity in the expression, that the party invested with the right is said to have a right to a thing.⁴⁶

1st, If you contract with me to deliver me a specific thing, I am said to have jus ad rem: that is to say, a right to the thing which is the subject of the contract, as against you specially. But, in strictness, I have merely a right to the acquisition of the thing: a right of compelling you to give me jus in rem, in or 376over the thing; to do some act, in the way of grant or conveyance, which shall make the thing mine.

2ndly, If you owe me money determined in point of quantity, or if you have done me an injury and are bound to pay me damages, I have also a right to the acquisition of a thing; but, strictly and properly speaking, I have not a right to a thing. I have a right of compelling you to deliver or pay me moneys, which are not determined in specie, and as yet are not mine: though they will be determined in specie, and will become mine by the act of delivery or payment.

In this case, the nature of the right is obvious. For as there is no determinate thing upon which it can possibly attach, it cannot be a right to a thing.

3rdly, Suppose that you enjoy a monopoly by virtue of a patent; and that you enter into a contract with me, to transfer your exclusive right in my favour. Now here, also, I have jus ad rem, but it is utterly impossible to affirm that I have a right to a thing. The subject of the contract is not a determined thing, nor a thing that can be determined. My right is this: a right of compelling you to transfer a right in rem, as I shall direct or appoint. If I may refine upon the expression which custom has established, I have not so properly jus ad rem, as jus ad jus in rem.

And this, indeed, is the accurate expression for every case of that species of jus in personam which is styled jus ad rem. In every case of the kind, the party entitled has jus in personam ad jus in rem acquirendam. That is to say, he has a right, availing against a determinate person, to the acquisition of a right availing against the world at large. And, by consequence, his right is a right to an act of conveyance or transfer on the part of the person obliged.

With regard to the other species of jus in personam, there can be no doubt. If you contract with me to do work and labour, or if you contract with me to forbear from some given act, it is manifest that my right is a right to acts or forbearances, and to nothing more.

I will now advert to the class of cases above alluded to (p. 373) which obscure the otherwise broad and distinct line of demarcation whereby these two great classes of rights are separated. Rights in rem sometimes arise from an instrument which is called a contract, and are therefore said to arise from a contract: the instrument in these cases wears a double aspect, or has a twofold effect; to one purpose it gives jus in personam 377and is a contract, to another purpose it gives jus in rem and is a conveyance. When a so-called contract passes an estate, or, in the language of the modern Civlians, a right in rem, to the obligor, it is to that extent not a contract but a conveyance; although it may be a contract to some other extent, and considered from some other aspect. A contract is not distinguished from a conveyance by the mere consent of parties, for that consent is evidently necessary in a conveyance as well as in a contract.

For example, a contract for the sale of an immoveable in the French law, is of itself a conveyance; there is no other; the contract, or agreement to sell, is registered, and the ownership of the immoveable at once passes to the buyer.

By the provisions of that part of the English law which is called equity, a contract to sell at once vests jus in rem or ownership in the buyer, and the seller has only jus in re alienâ. But according to the conflicting provisions of that part of the English system called peculiarly, law, a sale and purchase without certain formalities merely gives jus ad rem, or a right to receive the ownership, not ownership itself: and for this reason a contract to sell, though in equity it confers ownership, is yet an imperfect conveyance, in consequence of the conflicting pretensions of law.⁴⁷ To complete the transaction the legal interest of the seller must be passed to the buyer, in legal form. To this purpose, the buyer has only jus in personam: a right to compel the seller to pass his legal interest; but, speaking generally, he has dominium or jus in rem, and the instrument is a conveyance. To this one intent only he has jus in personam; the seller remains obliged, and equity will enforce this obligation in specie against the seller, or will compel him to fulfil it by transferring his legal interest in legal form.

Considered with relation to this obligation, which correlates to a right in personam, the so-called contract is a contract; but if there were only one system of law in England, and that law were the law administered by the Court of Chancery, it would not be a contract, but a mere conveyance.

Briefly, no right to a thing, properly speaking, is ever given by a contract. Where a thing is the subject of the contract, the right is not a right over, in, or to the thing, but a right to an act of transfer, or assignment of the thing on the part of the obligor.

378 All rights founded upon injuries, or rights of action in the largest sense of the word, are rights in personam, equally with those which arise from contracts: and, like all rights in personam, are rights to acts or forbearances on the part of determinate persons, and to nothing more. Some confusion has arisen upon this point from the actio in rem of the Roman lawyers. Actio in rem was a name given by the Roman lawyers to the form of action appointed for the vindication of rights founded on injuries. The name does not imply that the right vindicated is a right in rem, but is an abridged expression to denote an action founded on an injury against jus in rem.

All rights of action must it is evident, be founded on rights in personam—that is, on rights which avail exclusively against the determinate person or persons against whom the action will lie; although those persons may have been brought under that designation by committing an offence against a right in rem. Actions in rem are rights of action founded on an offence against a right in rem, and seeking the restitution of the party to the enjoyment of that very right, and not merely satisfaction for being deprived of it. Thus, an action of ejectment in English law would be said by the Roman lawyers to be an action in rem: because it is founded upon an act of dispossession infringing upon my right of ownership in the land, and because it seeks the restoration to me of that specific right. So likewise an action of detinue would be called an action in rem: but an action of trover would not; because, though founded upon the supposition of a wrongful conversion of the subject claimed to the defendant’s use, it does not seek specific restitution, but merely satisfaction or damages.

The following are some of the passages referred to in note ⁴³ p. 370, ante, together with the marginal notes attached to them.

‘Die Foderungen sind überhaupt Rechtsverhältnisse, bei welchen nothwendligauf einen bestimmten Verpflichteten Rücksicht genommen werden muss. In der römischen Sprache sind sie theils obligationes, theils actiones, je nachdem sie für sich bestehende Verhältnisse zwischen den creditor und debitor (Sanctioned), oder Verhältnisse zur Verfolgung irgend eines andern Rechtsverhältnisses sind (Sanctioning). Bei den Alten unterschei379den sie sich auch dadurch, dass die obligatio an sich nie der Rechtsfähigkeit des Verpflichteten ein Ende machen kann, wie dies bei der actio oft der Fall ist.’—Hugo, Jurist Enc. vol. i. p. 75.

Rights of Actions are classed with Obligations; whilst obligations to suffer punishment (which are not more sanctionative than the former), are referred (together with Crimes and Criminal Procedure) to Public Law. Civil Procedure is completely separated from the Rights of Action, and the Matters for Exception, upon which it is built. Civil Injuries are not considered directly. Sanctionative Civil Rights which are exercised extrajudicially are forgotten.—Marginal Note.

Page 298.—‘Arten von Rechten an einer Sache.’

Hugo enumerates three, viz. Eigenthum, Servitut, and Pfaudrecht.* ‘Doch,’ he continues, ‘muss bemerkt werden, warum das Erbrecht und der Besitz nicht hierher gehören. Ersteres, weil es eine Art das Eigenthums, oder eine Art es zu erwerben:† und Letzterer, weil es etwas mehr auf dem gegenwärtigen natürlichen Zustande (Factum) als auf einem Rechte beruhendes ist;. wodurch freilich auch ein strenges Recht gegen den unschuldigen dritten Besitzer entstehen kann, wenn der Anfang des Besitzes (causa oder initium possessionis, späterhin titulus) es erlaubt; oft entsteht aber daraus nur eine Obligatio.’‡

* Mortgage, etc., is Jus in Re given by way of security for the performance of some obligation, though it may lead in the event to the enjoyment of the subject. The Right of the Obligor may be Property or Servitus.—Marginal Note.

† And setting aside this ambiguity—assuming that it denotes Jus, and not also a mode of acquisition—it cannot be classed with Jura in Re, because it also includes Jus ad Rem. Possession must be considered under three aspects. 1° As titulus, as the fact (the fact of enjoyment or occupancy) which gives a right as against all except the proprietor. 2° As the name of this right. 3° As a titulus, which combined with other tituli gives a right even as against the proprietor.—Marginal Note.

‡ i.e. Jus ad Rem against the alienor by virtue of the warranty for Title.—Marginal Note.

Page 325.—‘Von Foderungen.’

‘Der Gegenstand einer Foderung ist entweder ein Geben, oder ein Thun, oder ein Gestatten.’…

Every obligation is positive or negative: is an obligation to give or to perform (in one word, to perform); or to permit, i.e. not to hinder.—Marginal Note.

‘Juris in artem redacti, seu systematis juris, quantum ad jus privatum, tres constituuntur partes primariæ maxime ab institutorum ejusdem juris varietate ductæ: a.a. Jus Personarum, quod de personarum conditione, et in primis de statu familiæ præcipit: b.b. Jus Rerum, quo de rerum divisionibus et jure circa res, tam proprias quam alienas, etiam defunctorum, disseritur: denique: c.c. Jus Obligationum et Actionum, quod doctrinam, tum de jure adversus certos debitores per obligationem competente, tum de variis modis jus, quod supra traditium est, in judicio persequendi tractat. Quibus partibus tamquam corollarium, sod sine quo ipsa juris privati ratio vix intelligi possit, recto adnectitur universæ formulæ et ordinis judiciorum descriptio.—Haubold, Institutorum Juris Privati Romani Lineamenta, p. 7.

380 On the blank part of the page, referred to in ‘Thibaut’s Versuche,’ is the following table:

Res.

Actiones.

Corporales
[Res et Facta].

Incorporales.

Dominia

Obligationes (s. l.).

Obligationes(s. s.).

Actiones.

It may not be out of place here to observe that the terms real and personal, when applied by writers on the law of Scotland to distinguish rights, are invariably applied in a sense conformable to that of the Civilians.

The word real has in the law of Scotland several shades of meaning, but all of them importing a distinction of a similar nature to that insisted on by Mr. Austin. Thus, a real burden affecting lands means an obligation, similar in character to that imposed by what is called in English law a covenant running with the land, and is, therefore, a right availing not in certam personam, but against persons of a generic description, namely, owners, or possessors of the land. Thus, also, a right to teinds is classed amongst real rights, being available not against certam personam, but against all persons intromitting with (i.e. reducing into possession) the produce or rents.

But the application of the terms real and personal which has most precision and distinctness is the following:—A real right in land, or other subjects capable of feudal investiture, is a right completed by infeftment (that is, according to modern forms, duly registered in the Register of Sasines). A personal right to land, etc., is a right not completed by infeftment.

To understand the distinction, the English reader must be informed that the complete title to land in Scotland is of a double nature. There is the title proper (or personal title), consisting of a series or progress of documents connecting (or presumed to connect) the proprietor with the Crown, as the ultimate author of all feudal rights. There is also the sasine, formerly a public act of taking possession, now effected by registering the appropriate instrument or deed in the Register of Sasines: which being done, in pursuance of lawful warrants, the proprietor is said to be infeft, 381or feudally invested with the property. The word infeftment, or investiture, properly applies to the personal title completed by the sasine: but is sometimes applied to the sasine as distinct from the personal title, where, as it sometimes happens, they conflict.

Now the essential and, I believe, only practical difference in present effect made by the sasine (omitting the notice effected by registration and the operation of prescription to cure defects in the personal title) is the following:—

If A. (the owner, or dominus) be unlawfully kept out of possession by a tenant or other person, possessing on a colourable title not derived by way of contract from A., or from one whose person A. represents, A. cannot remove or eject the possessor until he is himself infeft in the lands. That is to say, A. infeft can enforce his right against persons in general; A. uninfeft, only against certas personas, namely, 1st, against those who possess under contract with him; and 2ndly, against those whose acts may be necessary to procure his personal right to be clothed with the feudal investiture.

No doubt the heir who has entered on the inheritance, although not infeft, has many of the real rights of the dominus (e.g. against trespassers); but I believe that in the above distinction lies the reason why the terms real and personal were applied by our lawyers of the last century (the best of whom were well versed in the learning of the Civilians) to distinguish rights completed by infeftment, and rights not so completed.

The rights descendible to heirs, as distinguished from those descendible to executors or administrators, are in the law of Scotland denoted by the appropriate term heritable, and never by the term real.—R. C.