Lectures on Jurisprudence.
ON LAW
CONSIDERED WITH REFERENCE TO
ITS PURPOSES,
AND TO THE
SUBJECTS WITH WHICH IT IS CONVERSANT:
AND, IN PARTICULAR, OF THE
LAW OF THINGS AND THE LAW OF PERSONS OR STATUS.
—◆—
LECTURE XL.
Note.—At the time of the publication of the former edition of these Lectures, it was supposed by their late editor that this Lecture had been irretrievably lost; and in a note announcing the unavoidable hiatus, it was added: ‘I can hardly hope that any member of Mr. Austin’s class still possesses notes of his course. But if any such memoranda are in existence, I should esteem myself under a great obligation to any gentleman who would permit me to see them.—S. A.’
It was, I believe, in answer to this appeal, that the very full and clear notes of the Course of Lectures preserved by Mr. John Stuart Mill were furnished by him for the use of the late Mrs. Austin. These notes have now been collated with the former edition for the purpose of the present revisal, and it is most fortunate that the present Lecture, which commences the author’s leading division of the main part of his subject, can be supplied from a source so reliable.
I may further remark here, that the extent of the hiatus in this place was not fully known to the late editor. The latter part of Lecture XXXIX (as now printed), containing the greater part of the author’s remarks upon codification, and entirely omitted from the Lectures as formerly published, forms in J. S. M.’s notes the matter of an entire Lecture of more than usual length. The recovery of this Lecture is at the present time also peculiarly valuable.—R. C.
From law considered with reference to its sources, and to the manner in which it begins and ends, I pass to law considered with reference to its purposes, and to the subjects about which it is conversant.
684The first great distinction of Law considered under this aspect, is the celebrated one into the Law of Persons and the Law of Things; or (as I think it ought to be stated), the Law of Things and the Law of Persons.
This distinction may be stated generally (as I have stated it in my Outline) as follows:-—
‘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 a 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 the 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 homo, a 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.’84
84 Outline, pp. 40, 41, vol. i. ante.
685This most obscure and obscuring expression may be explained as follows:—
Res, in the language of the Roman law, has two principal meanings. It denotes, in the first place, things, properly so called, together with persons, acts, and forbearances, considered as the subjects and objects of rights and duties. These are called by the Roman jurists res corporales, which they define materia juri subjecta, in quâ jura versantur; ea quæ juri nostro afficiuntur, quæ tanquam materia ei sunt proposita. In the second sense, res denotes what are termed by the same jurists res incorporales; which they define ea quæ ad jura pertinent; ut jus hæreditatis, jus utendi fruendi, jus servitutis, obligationes quocumque modo contractæ.
This division of things into corporeal and incorporeal, tangible and intangible, sensible and insensible, arose from a tendency which I formerly pointed out, in the Roman jurists, to import into their legal system the terms and distinctions of the Greek philosophy. In the philosophy of the Stoics, the words tangible and intangible were equivalent to sensible and insensible. Tangible was not confined to objects perceptible by the sense of touch, but extended to all objects perceptible by the senses. Intangible meant not perceptible by the senses. By the Epicureans, the same words appear to have been used in a sense precisely equivalent, as is proved by the well-known line of Lucretius: Tangere enim et tangi, nisi corpus, nulla potest res; where the context proves that he is not speaking only of the sense of touch, but of perception by any of the senses.
The application of the term corporeal things to the subjects and objects of rights and duties, and of the term incorporeal things to rights and duties themselves, is remarkably unhappy. For though some of the former are corporeal, others are as incorporeal as lights and duties themselves. Such, for example, are forbearances, which are the objects of innumerable rights; but forbearances, far from being sensible, are mere negations of actions in pursuance of desires and intentions. Accordingly, nothing can be more inconsistent than the language of the Roman lawyers. They begin by limiting things corporeal to things properly so called: that is, to those permanent external objects which are not persons, considered as the subjects and objects of rights, and to persons considered from the same aspect. These are doubtless corporeal. But in the details of their treatises the same jurists include in the terms res corporales, the objects of obligationes (stricto sensu); as, for instance, of the obligations arising from contracts.
686In English law, we find the same useless and misleading jargon, and employed, as usual, still more inconsistently; for in English law the word incorporeal is applied, not to all rights and duties, but to certain hereditaments. Hereditaments are divided into corporeal hereditaments and incorporeal hereditaments. But if the hereditament mean the right itself, that is always incorporeal, not less in the case of what are called corporeal than what are called incorporeal hereditaments.
If the hereditament mean the subject of the right, the subject of an incorporeal hereditament is as corporeal as the subject of a corporeal hereditament. For instance, a right to tithes is an incorporeal hereditament, and the right is incorporeal; but so is the landlord’s right to the estate itself; yet that is called a corporeal hereditament. The subjects of both rights are the same: the land itself, or its produce; which are of course corporeal. The distinction, in short, is totally unmeaning. It cannot be expounded accurately by abstract and general terms. In order to know what is an incorporeal hereditament, it is necessary to go through the whole list of the rights which the law marks with that name. They have no properties in common whatever.
Now, since the Law of Persons means the law of status or conditions, and since res signifies rights and duties, the Law of Things was probably so called for the following reason:—Being conversant with rights and duties as abstracted from conditions or status, or being conversant with rights and duties considered in a general or abstract manner, it was called the Law of Things, or the Law of Incorporeal Things: that is, the department of law relating to rights and duties generally, or to all rights and duties except those constituting status or conditions.
The Law of Things in short is The Law—the entire corpus juris; minus certain portions of it affecting peculiar classes of persons, which, for the sake of commodious exposition, are severed from the whole of which they are a part, and placed in separate heads or chapters. Such was most probably the origin of the name, which would be of little moment if the expression had not given rise to many absurd speculations on the appropriate subjects of the two departments.
The Law of Persons, then, is that part of the law which relates to status or conditions.
The Law of Things, like the law of Persons, relates to rights and duties, but to rights and duties considered generally and in the abstract; exclusively of the rights and duties which are the constituent elements of conditions or status. That such was the 687general conception of the distinction by the Roman jurists, is manifest from the order adopted in the Institutes. The second book of the Institutes opens with words to this effect:
‘Having treated of the Persons, let us now treat de rebus.’ It then proceeds to divide res into corporales and incorporales, and then treat’s of rights and duties under their various subdivisions.
It is absurd to suppose that the law of Persons can peculiarly relate to persons, meaning homines or human beings; or the Law of Things to things, in the proper sense of the term. They both relate to rights and duties which reside in or are incumbent upon men. Each, therefore, relates to persons in that proper sense of the term, quite as much as the other. Many rights and duties treated of in the Law of Persons relate to things properly so called: as, for instance, an estate in land belonging to a married woman: and many rights and duties treated of in the Law of Things have no regard to things proper: as, for instance, the right arising from an obligation to forbear under a contract.
Much, therefore, of the Law of Persons relates to things properly so called, while much of the Law of Things does not.
The distinction, therefore, between the Law of Things and the Law of Persons rests upon the notion of status or condition. The Law of Things is the law; the corpus juris, minus the law of status or conditions. The Law of Persons is the law of status or conditions, detached for the sake of convenience from the body of the entire legal system.
What constitutes a status, or condition.
The question, therefore, which first arises is this: What constitutes a status or condition?
The notion is not capable of being fixed with perfect exactness. There are sets of rights and duties, capacities and incapacities, which one person might deem to constitute status or conditions, while another might refer them to the Law of Things.
The distinction between the rights and duties capacities and incapacities constituting a status, and any other rights duties capacities and incapacities, not susceptible of an strict definition.
After the best consideration which I have been able to give to the subject, and after an extensive examination of the opinions of others, I still find no mark by which a status or condition can be distinguished from any other collection of rights and duties.
The sets of rights and duties, or of capacities and incapacities, inserted as status in the Law of Persons, are placed there merely for the sake of commodious exposition. The same reason retains many important sets of rights and duties, which might form many so-called status or conditions, in the Law of Things.
The sets of rights and duties called condition or status have no common generic character which determines what a status or 688condition is. Certain sets of rights and duties are detached for convenience from the body of the legal system, and these sets of rights and duties are styled status or conditions.
No generic character common to them all; but they bear the following marks:
Speaking, however, generally, the rights and duties capacities and incapacities which constitute status or conditions, bear the following marks:—
1. They reside in an individual as belonging to a class.
First: universally, or nearly universally, a status or condition resides in the party who is invested with it, as being a member of a class of persons, not as being that very individual person. Singular or peculiar rights may be conferred on a party by a privilege, or duties or incapacities may be laid upon a party by a privilege; but these are not considered as forming a condition or status with which he is invested. The reason of this seeming caprice has been given in a note to my Tables. It is out of the purpose of a body of law to insert in it rights or duties peculiarly affecting given individuals. The party asserting these rights, or endeavouring to enforce these duties, is obliged to shew the special act of the sovereign legislature which conferred or imposed them; the claimant must prove the rights conferred upon him by the privilege as he would prove his rights under a special contract. A privilege is rather a peculiar title than a general law of which the tribunals take notice.
2. The rights and duties capacities and incapacities, constituting a status, commonly impart to the party invested with them a conspicuous character, and have an extensive influence over his social relations. This not a certain mark of status.
Secondly: the rights and duties capacities and incapacities which constitute a status or condition, are commonly considerable in number and various in kind; or, at least, are commonly considerable in number; so much so as to impart to the party invested with them a conspicuous character, and affect him in most or many of his social relations.
Such are the rights and duties capacities and incapacities of husband and wife, parent and child, guardian and ward, master and slave, of an alien, an insane person, or a magistrate. Each of these sets of rights and duties modify extensively the various relations to his fellow-creatures of the party invested.
But this is no certain mark for distinguishing a status or condition. For the sake of commodious arrangement a set of rights or duties, of no considerable importance, might be detached from the body of the law and placed in a chapter apart. Looking at the ends of the distinction between Law of Persons and Law of Things, any set of rights and duties may be placed in the Law of Persons, if it regard specially a class of persons in whom it resides, or on whom it is incumbent.
3. They regard specially the class of persons by whom the status is borne.
Thirdly: the rights and duties capacities and incapacities constituting status or conditions, regard specially the class of 689persons by whom the status or condition is borne. There are rights and duties capacities and incapacities which have no special regard to any peculiar class. Such, for example, are the rights and duties which the law has annexed to contracts; or the capacity to enter into a contract, whether as promiser or promisee. With the exception of a few classes of persons who are legally unable to enter into contracts, or who can do so only in a qualified manner, the rights and duties arising from a contract may attach to persons of any class. But there are also rights and duties capacities and incapacities which regard peculiar classes of persons. Such, for instance, are the incapacities of infants and married women; the peculiar rights of masters and servants, of bankrupts, of magistrates, of soldiers, and of other classes of persons in indefinite variety. It is true that these rights and duties capacities and incapacities also regard persons of other classes in so far as they happen to be related by special ties to persons of these peculiar classes. For example, if you contract with an infant, the consequences of the contract to yourself are modified by his peculiar status or condition and the incapacities which constitute it. Still, though these rights and duties capacities and incapacities do not regard exclusively persons of the particular class, they do specially regard such persons. This last circumstance constitutes the rationale of the distinction between the Law of Things and the Law of Persons.And here, if anywhere, will be found the rationale of the distinction between the Law of Things and the Law of Persons. Whenever a set of rights and duties capacities and incapacities regards specially and constantly one class of persons, every person of that class has a status or condition, composed of those special rights and duties capacities and incapacities. But those rights and duties capacities and incapacities which have no peculiar regard to any peculiar class, are matter for the Law of Things. That such is the import of the distinction, as it is commonly drawn, I would not affirm; but such it must be, if the distinction mean anything determinate.
On the whole, then, the marks of a status or condition are these:—First, it resides in a person as member of a class. Secondly, the rights and duties capacities and incapacities composing the status or condition, regard or interest specially the persons of that class. Thirdly, these rights and duties capacities and incapacities are so considerable in number, that they give a conspicuous character to the individual, or extensively influence his relations with other members of society. This last property is, I think, not essential: and would not be regarded in a body of law rationally constructed.
690Having stated the distinction between the Law of Things and the Law of Persons, I shall proceed to state what appear to me to be the uses of the distinction: the statement of which will throw additional light upon its nature. But I have first an observation to make.
An objection answered.
Any rights and duties, not singular, or peculiar to a specific or determinate individual, are properly determined to a class of persons. For example, the rights and duties arising from a contract, are determined to the class of contractors. The rights and duties arising from a mortgage, are determined to the class of mortgagors, and to that of mortgagees. If we liked, we might place the rights residing in, and the duties incumbent upon, these classes of persons, in the jus personarum, and deem them to constitute status or conditions.
But we must consider, in order to clear up this difficulty, that classes of persons are of two kinds: first, classes which might comprise persons of any description, or nearly so; no persons being necessarily excluded, except some classes labouring under a special incapacity which would itself constitute a status: secondly, classes which can only comprise persons of one given description. For example, whatever be his other characters, any person may be a contractor. None, except persons who, being under twenty-one years of age, are infants by the English law, are under incapacity to contract. Rights and duties belonging to the Law of Things, are of a large and miscellaneous class, having no special regard to peculiarities of position; they regard equally all persons, except persons in a special position, and under a peculiar incapacity. The rights and duties, for instance, which arise out of a contract, regard all contractors, and though contractors are a special class, there is scarcely any person who may not belong to that class. The class must be such as from its nature cannot include all or nearly all persons.I ought, therefore, to have added to the distinguishing mark of a status, that the class itself must not be such that it may comprise any, or nearly any, person whatever. Classes possessing a status or condition are classes which can only comprise a part of the community; as husbands and wives, masters and servants, parents and children; any or all of whom may be promisors for promisees, mortgagors or mortgagees, contractors, and so on.
This observation is, I think, an answer to Mr. Bentham, who, I am forced to admit, appears to me to be inconsistent and obscure in all he says on this subject. The difficulty of dealing with the word class, on account of its ambiguity, creates the whole difficulty of the case. By taking the word class in 691its widest sense, we might throw the whole body of law into the law of Persons: but that was not the object of those who have taken the distinction: they wished to separate the rights and duties specially affecting portions of the community from rights and duties of more general interest.
Uses of the distinction.
I now proceed to the uses of the distinction.
The Law of Things is that department of the corpus juris which regards rights and duties capacities and incapacities, considered in a general or abstract manner: that is to say, as abstracted from the rights and duties capacities and incapacities constituting conditions or status. The Law of Persons is that department of the entire body of law which is concerned with conditions or status.
Now, although the idea of status or condition is essential or necessary, and must exist in every body of law, the division of the corpus juris into Jus Personarum and Jus Rerum is not essential or inevitable. It is adapted as being commodious; as being a good basis for the arrangement of the corpus juris. But it is easy to conceive arrangements founded on principles altogether dissimilar. The main advantages of this division seem to me to be these.
1. Repetition, and consequent voluminousness, avoided.
First: in the Law of Things, or the Law of Things Incorporeal, or the Law of Rights and Duties, or The Law generally, all which can be affirmed of rights and duties considered generally, or as abstracted from status or condition, is stated once for all. One advantage, therefore, of the division is that it is productive of brevity: again, the general rules and principles with which the Law of Things is properly or directly concerned, are preserved detached and abstracted from everything peculiarly relating to particular classes or persons; they are, therefore, presented more clearly than if they were interspersed with that more special matter. Each rule or principle is apprehended more easily and distinctly than if the modifications which it receives from that more special matter, were appended or annexed to it. Being brought together more closely, their mutual relation and dependency is more easily perceived. The brevity, therefore, which this division of the corpus juris produces, tends also to its clearness. For example, the rights and duties which constitute, and are annexed to an estate in fee, or property in a personal chattel; the rights and duties arising from contracts, or from delicts, are stated much more clearly than they could be if they were presented as modified by the peculiar rights, or the peculiar incapacities, of married women or of infants.
6922. The portions of law affecting peculiar classes, rendered more accessible and cognoscible.
Secondly: by distinguishing such parts of the law as are peculiar to particular classes from the parts which are common and of universal application, and by placing the former under a peculiar head, or appending them to the body of the law in a separate chapter, the matter peculiar to every particular class is rendered easy of reference. The distinction is thus attended (or would be attended, if its principle were steadily adhered to) with one great and indisputable advantage, which the rational advocates of codification have most insisted upon. The law, I am satisfied, can only be known extensively to lawyers; but every class of persons might know, to a considerable extent, the parts of the law specially relating to themselves. To this end, those special provisions must not be interspersed through the whole body of the law, but must be placed by themselves under a peculiar head. This head may again comprise under itself many other smaller heads; for example, the head ‘Trader’ might be divided into a variety of subordinate heads, to facilitate the knowledge of the matter peculiarly affecting each class of traders; and might thus be, in little, what the corpus juris, on a larger scale, ought to be.
Identity of the division into Law of Things and Law of Persons with Mr. Bentham’s division into General and Special Codes.
This plan of collecting under separate heads such portions of the law as are peculiar to special or particular classes, is strongly and justly recommended by Bentham. His general code, as distinguished from his proposed special codes or bodies of law specially relating to particular classes, is in fact the jus rerum, or Law of Things, of the classical Roman jurists. If Bentham had ever given to the Roman law the attention it well deserves, he would have found that his own distinction precisely tallied with that which he rejects with unmeasured, and what, in spite of my veneration for Mr. Bentham, I must call ignorant, disdain. His mistake is excusable, because he had never read the Roman law itself, and only understood this distinction as it was distorted and travestied by Sir William Blackstone, who, misunderstanding the ambiguous word jus, actually translates jura personarum and jura rerum the rights of persons and the rights of things! It is a strong presumption in favour of the distinction, that Mr. Bentham by his unassisted invention arrived at it; for he certainly did not derive it from the Roman law.
Two other possible divisions of the Corpus Juris.
Instead of this division, there are many other divisions of the corpus juris which might be adopted. I shall briefly advert to two of these possible divisions, because they may serve to illustrate that of which I have been treating.
693First; the head jus rerum might be rejected, and the whole body of the law divided into special codes, heads, or chapters, appropriate to peculiar classes of persons. The inconvenience of this would be, that the matter which is common or universal or has no special relation to any peculiar class, must be inserted under every head. In effect, each of the special codes would consist of the whole of the common matter, plus the matter specially referring to the peculiar class. The repetitions of the general matter would be as numerous as the special classes; and consequently the bulk of the whole body of law would be truly immense. By adopting the division into Jus Rerum and Jus Personarum, the description of the common matter is disposed of at once. No inconvenience arises from the separation: each of the particular codes is equally complete; the facility to persons belonging to any special class, of referring to the whole of law affecting them, is as great: the only difference is, that they must look for it under two heads or chapters instead of one; which is no increase of the trouble. For example, an infant is about to enter into a contract: the infant or the person designing to contract with him refers to the chapter on infants to find in what manner the status of an infant modifies the general provisions of the law on the subject of contracts; and if this is not intelligible to him he refers to the title ‘Contracts’ in the General Code. The operation is analogous to the logical process of laying a species on a genus. By adding the properties peculiar to the species, to those common to the genus, we obtain the whole essence of the species, or all the properties belonging to it. The general matter which forms the jus rerum, is related to the matter of the several chapters constituting the jura personarum, as the genera of logicians are related to the species under them. By the generic name all the properties which are common to all the species or narrower classes included in the genus, are marked at once; the peculiar properties of each species are marked afterwards by specific names. So in the jus rerum, the rights and duties capacities and incapacities common to all parties, or which have no peculiar reference to any separate class, are described once for all; and the rights and duties capacities and incapacities which refer peculiarly to classes of persons, are placed in codes or chapters respectively appropriated to those classes. In each operation there is a sort of classification or of abstraction; in each the effects are comprehension brevity and clearness.
694Not to exaggerate, however, the effect of this separation of the body of law into the General Code and a number of special Codes, in rendering the law cognoscible, I must observe that a complete knowledge of any of these separate parts implies a knowledge of the jus rerum of which they are only a modification, and requires therefore a knowledge of that immense whole which it modifies. In the example which I have already made use of, that of an infant entering into a contract, it is obvious that we must know the general nature of contracts, and the rights and duties annexed to them, to enable us to know in what manner those rights and duties are modified by the peculiar status of an infant.
A second possible division is the following:—The jus personarum might be rejected, and the sets of special provisions relating peculiarly to special classes, not collected under appropriate chapters, but appended to the more general provisions which they modify and control. For example, under the head of husband and wife, we find the provision specially affecting married persons, detached from the description of the right of property and the effects of contracts in the General Code. But the special chapter might be expunged, and the special matter which it contains might be appended to that general description. On this principle of arrangement the Code might be as concise as on the esteemed and ancient one of the classical jurists. But brevity and clearness in the exposition of the general principles would be lost; for to every principle, all the modifications it receives from the peculiar position of every particular class must be appended; and the peculiar law of each class being scattered everywhere through the Code, the class could not easily find their own peculiar law, but must pick it out bit by bit; not finding it collected to their hands.
The division into Law of Things and Law of Persons preferable to either.
The division into jus personarum and jus rerum combines the advantages of both these adverse methods. Like the one, it enables all classes to find easily the law peculiarly affecting themselves; like the other, it presents in a connected series those principles of the law which are common to all classes.
The distinction not correctly and consistently followed out by its authors.
These, however, are not so much the advantages which the division has produced as those it would produce if its principles were clearly and strictly pursued. By the Roman lawyers, as for example in the Institutes, the special law of particular classes is often placed in the Law of Things: and the same in Blackstone, in the French Code, and in almost all the other compilations of lawyers. Hence the question has been much agitated, 695whether the jus personarum of the Roman lawyers was properly the law of status (or the description of the rights and duties, capacities and incapacities constituting status); or merely a description of the facts or events by which status is invested or divested. Whether for instance, under marriage all the rights and duties peculiarly affecting husbands and wives, were intended to be inserted, or merely marriage itself, the incident by which the status arises, with the modes by which marriage may be dissolved. The truth is that the authors of the distinction have not been consistent. Sometimes they inserted in the jus personarum, descriptions of the rights and duties composing the status, while in other cases they simply described the investing and divesting facts, reserving the description of the rights themselves for the Law of Things.
If, therefore, we take the distinction not as it would exist if its principle were steadily and consistently pursued, but as it stands in all existing bodies of law, it is impossible to describe it with precision and clearness. But if the Law of Persons is strictly the law of status or conditions, that is, of the classes of conditions which for commodious exposition are kept out of the law of Things, the distinction is clear. Sometimes matter which might be placed in the Law of Persons, is inserted in the Law of Things for the same purpose, convenience of exposition. Why for instance should not heir, or executor, or administrator be a status, as well as husband and wife? Sir Matthew Hale actually places in the Law of Persons the relation of ancestor and heir; but by a strange inconsistency places the law of executors and administrators in the Law of Things. But perhaps it answers better the purpose of commodious exposition, to append this part of the law to the general principles which it modifies.
To describe, then, the distinction as it exists in any particular body of law, is to describe the whole arrangement of the corpus juris, and to assign the reason why every part of it is in that particular place. This is not relevant to the purpose of my present course.