709
[end of lecture 41]

LECTURE XLII.

STATUS FURTHER CONSIDERED.

In the Lecture before the last, I explained or suggested the import of the distinction between the Law of Persons and the Law of Things: Meaning by ‘the law of persons,’ the law of status or conditions, or the law of persons as denoting status or 710conditions: And meaning by ‘the law of things,’ the bulk or mass of the corpus juris as abstracted from status or conditions, or the Law minus the law of status.

That such (stated generally) is the import of this celebrated distinction, appears from the short exposition of it which I then gave, and also from the passages from Savigny and Thibaut, which I read in my last lecture.

Having stated the import of the distinction in question, and adverted to the idea of status (which is the basis of the distinction), I proceeded to examine certain definitions of the distinction and of the implied idea of status, which in my opinion are erroneous or defective, and have engendered much of the obscurity wherein the idea and the distinction are involved.

Fifth erroneous definition: Status a capacity or ability (facultas or Rechtsfähigkeit).

I now proceed to a definition of status which, in my opinion, is not less erroneous than any of the various definitions that I examined in my last lecture.

According to the definition of a status,⁹² to which I am now adverting, a status is a capacity or faculty: for in the language of modern Civilians (and of all modern jurists whose terms are fashioned on the language of modern Civilians), the term faculty, though commonly denoting a right, also signifies a capacity or ability to take or acquire a right, or to incur, or become subject to, a duty. In the language of the German jurists, who adopt the definition of a status to which I now am adverting, a status is denominated Rechtsfähigkeit: literally, or strictly, a capacity or ability to take or acquire a right; but meaning a capacity or ability to take or acquire a right, or to incur, or become subject to, a duty. For, amongst the numerous ambiguities by which the German ‘Recht’ (like the Latin ‘jus’) is perplexed and obscured, is this: that though it signifies a right, it occasionally embraces in its comprehension, a duty. For example: to succeed ‘in omne jus defuncti,’ is to succeed, by universal succession, or per universitatem, to all the descendible duties, as well as to all the descendible rights, of the deceased testator or intestate.

A capacity or ability.

Before I remark on the falsity of the definition to which I now am adverting, I will briefly consider the nature of a capacity, or, as Hale and others of our writers also style it, an ability.

A person is capable of a given right, or is capable of a given duty, if, on the happening of a given event, the law would invest the person with that given right, or would impose on the person that given duty. A person is incapable of the given right 711or duty, if on the happening of the given event, the law would not invest him with the given right, or would not impose upon him the given duty. A slave, for example, is incapable of acquiring property, by conveyance for valuable consideration, free gift, descent, or otherwise. A freeman is capable of acquiring that right, by those or other means. An alien, by the law of England, is incapable of taking land by conveyance for valuable consideration, or otherwise. A native is capable of acquiring it, by that, and other modes of acquisition. An adult, speaking generally, is capable of incurring a duty, through an agreement to which he is a party. An infant, speaking generally, is incapable of incurring a duty, through an agreement to which he is a party.

It is manifest that the terms capable and incapable must be taken with relation to the given investitive fact, as well as to the given right or given duty. For a person incapable on one event, of a given right or duty, may be capable of the right or duty on the happening of another. We may conceive, for example, that an infant though incapable of binding himself by a naked contract, might be capable of binding himself by a contract of the same kind, if, to prevent fraud, it were clothed with certain solemnities. Though incapable of incurring a given duty by the contract alone, he yet might be capable of incurring that very same duty, by that very same contract coupled with other incidents.

The term capacity or incapacity is the abstract of the term capable or incapable. To have a capacity, is to be capable; and to be capable, is to have a capacity. Although a capacity is not of itself a right, a person may have a right in a capacity to acquire a right. Certain status, for example, are partly composed of capacities to take rights, as well as of actual rights: as others are composed, wholly or in part, of incapacities to acquire. Now, by the modes, direct or oblique, to which I adverted in my last Lecture, a person may assert or vindicate a status of the former kind, or may repel a status of the latter. In either of which cases he reinstates himself in certain capacities as well as in certain rights. A person, for example, who is unlawfully treated as a slave, may repel the status of slave by an action, and so recover the capacities which belong to him as a freeman.

And here I would remark, that the term capacity or ability, or incapacity or inability, can hardly be used, with perfect propriety, in relation to a duty. A capacity or incapacity to incur or become subject to a duty, certainly sounds harshly. 712Consulting mere propriety of speech, I should rather style it liability to a duty, or exemption from a duty. But I use the term in relation to a duty, as well as in relation to a right, for the sake of the conciseness which thence results. You will find on making the experiment, that, if you use one name for a capacity to take a right, and another name for a capacity to incur a duty, you will often be forced to express yourself, when speaking of the capacities jointly, in sentences of suffocating length. And in giving to ‘capacity,’ the common or generic meaning with which I employ the term, I am justified by the similar use of the equivalent term ‘faculty,’ which is made, as will appear immediately, by authors of good repute.

A similar difficulty arises with regard to the term ‘title,’ and the term ‘mode of acquisition.’ We can hardly say, with propriety, that a duty arises from a title, or that a duty is acquired. But yet we want a name for those facts or events to which duties or obligations are annexed by the law. For we may have occasion to speak of the origin of a relative duty, as abstracted from the origin of the corresponding right: not to mention, that many duties are absolute. To obviate this difficulty, Bentham adopts the term ‘investitive fact or event,’ and uses it as a common or generic expression: that is to say, as denoting any fact, to which the law annexes a right or duty. Perhaps he would have done better, if he had ventured to use ‘title’ in the same generic sense, or had adopted the ‘causa’ of the Roman Lawyers.

It is doubtful whether more uncertainty does not arise from the introduction of new terms, the meaning of which, of course, will not for some time be understood, than from the employment of established terms however ambiguous; and whether the writer himself does not, from want of familiarity with his own terms, incur considerable risk of using them ambiguously. I prefer to adhere to the established terms, and in the pithy language of Hobbes snuff them with apt distinctions and definitions, and when, being snuffed, they give light, then to use them.

Subject of a right.

As not unconnected with the present matter, I will here make a remark, which may be very convenient to those who may happen to look into German books in anywise concerning law.

When I speak of the subject of a right, I mean not the person in whom the right resides, but the thing (strictly so called), or the person, over, in, or to which, the person entitled has the right: Supposing (I mean) that the right be one of the rights which are rights to things or persons. For an obligatio, or jus 713in personam, is not a right to a thing or person, but to acts or forbearances from a person: And even many of the rights which avail against the world at large, are not rights to persons or things, but merely rights to forbearances from persons generally.

But in the language of the German jurists the subject of a right, is the person who has the right, or in whom it resides. And they employ the term subject in the same manner, not only with regard to rights, but with regard to duties, capacities, and incapacities. In their language, the party who has the capacity, or who lies under the duty or incapacity, is the subject of the same.

For various reasons it appears to me, that my own use of the term is the usual one, and is justified by many analogies. With these reasons, I will not trouble you. But I will add to the explanation which I now have given, that this their use of the term subject partly accounts for an absurdity of theirs to which I have alluded in my published lectures.⁹³

Now I think it extremely probable, that they were led into this strange jargon by that use of the term subject to which I have referred. Inasmuch as the person having a right, is the subject of the right, the term Recht, as meaning a right, must (they fancied) have something to do with the subjectivity of Kant: And, of course, the opposed Recht, which means law, must also (they fancied) have something to do with that objectivity which Kant contradistinguishes to subjectivity.

It is manifest that the terms are completely misapplied. In the Kantian language, subjective existences are either parcel of the understanding, or ideas which the understanding knows by itself alone. They are pretty nearly, if not exactly, the ‘ideas gotten by reflection’ which are opposed by Locke to ‘ideas gotten by sensation.’ And in the language of Kant, that exists objectively, which lies without the understanding, or which the understanding knows by looking beyond itself.

Now, admitting all this jargon, it is clear that the two terms, objective and subjective, are not applicable respectively to law and rights. For, though a right resides in the person, and so may be analogous to subjects of consciousness, most of that which a right necessarily implies, is, as to the person, objective. The law giving him the right (which according to themselves, is objective), together with the relative duty which the law imposes upon others, are not in him, or parcel of him, but are 714as completely external to him, as an object of sensation is external to the percipient mind.

It is really lamentable that the instructive and admirable books which many of the German jurists have certainly produced, should be rendered inaccessible, or extremely difficult of access, by the thick coat of obscuring jargon with which they have wantonly incrusted their necessarily difficult science.

Status—a capacity, etc.

From this digression concerning capacities and incapacities, I revert to the definition of a status, which is the proper subject of the present examination.

According to that definition, a status or condition, or a person as meaning a status or condition, is a capacity or ability to take rights, or to incur or become subject to duties which the law confers or imposes upon the person, as meaning the homo or man. In Mühlenbruch’s Doctrina Pandectarum the definition is given thus:

‘Personam (quæ quidem a personando dicitur) potestatem juris vocamus; sive facultatem et jurium exercendorum et officiorum subeundorum, hominibus jure accommodatam et velut impositam. Ex quo intelligitur, quid sit, quod persona abjudicetur iis, qui aut prorsus nullo aut valde imperfecto gaudeant jure, etc.’⁹⁴

According to a definition of jus personarum, which is equivalent to the above definition of persona or status, the law of persons is concerned with the capacities of persons (as meaning men) to take rights or incur duties; or it is concerned with persons (as meaning men) in so far as they are capable of rights or duties.

This definition of status (with the equivalent definition of jus personarum) is liable to the following, amongst other objections.

1st. There are capacities which are common to all persons, who either completely, or to certain limited intents, are members of the given society political and independent, or subjects of its sovereign government. Every person, for example, whether free or slave, citizen or foreigner, adult or infant, married or unmarried, trader or not trader, has a capacity (unless he be excluded completely or nearly from all legal rights) to purchase and acquire property in such outward things as are necessary to the sustenance of life. Granting, then, that a condition is a capacity, its being a capacity will not serve to 715characterise it; seeing that there are capacities which are not conditions. A condition regards specially persons of a given class, and cannot consist of aught which regards indifferently all or most classes.

2ndly. There are many conditions which consist mainly, not of capacities, but of incapacities. The condition, for example, of the slave, consists mainly of incapacities to take rights: The condition of the infant freeman, of incapacities (mainly or wholly imposed upon him for his own benefit) to take certain rights, and incur certain duties. Nay, there are, I believe, conditions (though I cannot recollect, at the moment, a condition of the kind) which consist entirely of disabilities: of incapacities to acquire certain rights of which persons generally are capable; or of exemptions from certain duties to which persons generally are liable.

3rdly. As I remarked in my last Lecture, and shall explain a little more fully hereafter, the rights or duties, which as well as capacities or incapacities, are of the constituent elements of most conditions, are divisible into two kinds: namely, rights or duties which arise from the status immediatè, and rights or duties which arise from the status mediatè. In other words of the rights or duties which are constituent elements of the condition, some arise solely and directly from the general and paramount fact which engenders the condition: whilst others arise from that general and paramount fact, through a particular and subordinate fact. For example: the right of the husband or wife to the consortium or company of the other (either as against the other, or as against third persons generally) arises directly and exclusively from that fact of the marriage which clothed the husband and wife with their several but correlating status. But a right or interest of either in goods acquired by the other, arises from the fact of the marriage, through the title or causa by which the goods are acquired.

Now the rights or duties which arise from the status mediately (or from the fact engendering the status, through a subordinate fact), are consequences of capacities which are parcel of the status, and which arise directly from the fact engendering the status. But the rights or duties which arise from the status immediately (or which arise directly from the fact engendering the status), are rights or duties, and not capacities or faculties ‘jurium exercendorum et officiorum subeundorum.’—Wherever, therefore, the constituents of a status, are divisible in the manner which I have now suggested (and the constituents of 716 most status are so divisible), the status is not a capacity, or a bundle of capacities, but an aggregate of rights or duties with capacities.

Tria capita.

I remarked in a former lecture, that there are certain pre-eminent status which the Roman lawyers seem to have distinguished from others by the name of capita: namely, 1st, status libertatis (or the condition of the freeman, as opposed to that of the slave); secondly, status civitatis (or the condition of the Roman citizen, as opposed to that of the foreigner): and, thirdly, status familiæ: that is to say, the condition of being a member of a given family, and as such enjoying certain rights, or being capable of certain rights. For example: Unless a person were a member of a given family, he could not take by succession ab intestato from any member of that family. And, by consequence, when a man was adopted by the head of another family, or when a woman married and thereby became a member of her husband’s family, the status familiæ (with reference to the family quitted) was lost: though a new status familiæ (in reference to the family entered) was at the same time acquired.

Now a definition of caput (resembling the definition of status which I have just examined) is given by many German civilians. They say that a caput is a condition precedent (Bedingung) to the acquisition of rights: which merely means (if it mean anything) that a caput comprises capacities to acquire rights.—The definition, therefore, is liable to one of the objections which I made to the definition of a status that I have just examined. A caput, indeed, comprises capacities; and, in so far as it comprises them, is a condition precedent to the acquisition of rights. But it comprises rights and duties arising from the status immediatè, as well as mere capacities to take and incur rights and duties on the happening of particular and subordinate facts.

I remarked, in a former Lecture (when explaining the various meanings of the term person, page 351 ante), that a certain absurd definition of the term person arose from a confusion of caput and status: from a supposition that the Roman lawyers limited the term status to those peculiar status which they called capita. I remarked that those three status were probably called capita (or capital or principal status), because they comprised extremely numerous and important rights and capacities; and because the want of them implied extremely numerous and important incapacities.

717Unless, for example, a man was free (or had the status libertatis), he was excluded from all rights, and was only subject and liable to duties. Unless he was a Roman citizen, he was excluded very generally from rights, though not from all. Unless he was an agnat of a given family, he was excluded, in regard to that family, from the weighty right of succeeding to its members ab intestato.

But that the Roman lawyers limited the term status to these three capita, is utterly and palpably false. They speak, for example, of the status of a slave who had not, and could not have caput: the want of liberty implying a want of citizenship, and also of relationship to a family of Roman citizens. They also speak of the status of a peregrinus or foreigner: of the status of a senator: of the status lesæ existimationis, or of a status consisting of certain incapacities consequent on having been noted or branded by the censors. In a note upon status which I have appended to my second Table, I refer to various places in the Institutes and Digests, wherein the term status is applied to many sets of rights or duties, or capacities or incapacities, which could not have been deemed status, if the term had been restricted to capita.

But there is one consideration which is quite conclusive. In the first book of Gaius’ and Justinian’s Institutes, peregrini or foreigners, libertini or freedmen, masters and slaves, fathers and children, husbands and wives, guardians and wards, with other classes of persons, are passed in review: And to the whole book, regarding specially these various classes of persons, the common title of de personis (and in Gaius, the title of de conditione hominum also) is prefixed.⁹⁵

Before I dismiss this subject, I would remark, that the tria capita are not properly status.

To describe the rights, etc. of a freeman and citizen, is to describe generally the matter of the Law of Things. For a freeman and citizen (except in so far as he is excluded by special incapacities) is capable of the rights and duties with which the Law of Things is properly concerned. To put the rights and duties of a freeman and citizen into the Law of Persons, were to repeat under a head of the Law of Persons the whole matter of the contradistinguished department.

You will find, accordingly (if you examine any systematic code, or systematic exposition of a codex juris), that, although 718freemen and citizens are distinguished from slaves and strangers, their rights and duties are not considered in the Law of Persons. Their rights and duties are defined negatively by the definitions of the incapacities which are incumbent on slaves and foreigners. If a man be free and a citizen, he is capable (speaking generally) of all the rights and duties of which a slave and foreigner is incapable, and also of all others contained in the Law of Things.

If you look into the tenth chapter of his first book (entitled ‘Of the People, whether Aliens, Denizens, or Natives’) you will find that Sir William Blackstone passes over the rights of native-born subjects ‘as being the principal subject of his whole treatise:’ though he considers the incapacities of aliens, inasmuch as they regard specially a comparatively narrow class, and therefore are fit matter for that exceptional department which is styled the Law of Persons.

I apprehend, therefore, that the rights, etc. of a freeman and citizen are not properly a status: meaning by a status (the only meaning which I can possibly attach to it), a set of rights and duties, specially regarding persons of a given class, which for the sake of a convenient arrangement, it is expedient to detach from the body of the legal system.

It cannot, however, be inferred from what I have now said, that the Law of Things contains the rights, etc. of a citizen and freeman: or, in other words, that it relates to the status of a citizen and freeman. For a citizen and freeman may bear many status which consist of rights or incapacities peculiar to certain classes of citizens. An infant citizen, for example, or a citizen who is guardian, is clothed with peculiar rights besides those which are matter for the Law of Things, and is subject to peculiar incapacities which disable him from taking some of the rights with which the Law of Things is concerned.

A mistake similar to that against which I have offered this caution, is made by M. Blondeau (the Doyen of the Faculty of Law at Paris) in his excellent Analytical Tables of the Roman Law. He divides the corpus juris into law concerning ‘capables,’ and law concerning ‘incapables:’ meaning by a ‘capable,’ a Roman citizen sui juris and not in wardship: and by ‘incapables,’ all who are incapable of more or fewer of the rights of which a Roman citizen sui juris is capable. His law, therefore, of capables, is pretty nearly the law of Things considered as an exposition of the rights, etc. of a freeman and citizen. But this division, though extremely specious, is false and defective. 719There is no class of persons who are absolutely capables, although some are subject to fewer incapacities than others. Nor perhaps are there any who are absolutely incapables, although the incapacities of some are comparatively numerous.

It is also manifest that a Roman citizen sui juris, must bear many characters or many status: in respect of each of which he has peculiar rights and duties, or peculiar incapacities: as, for example, the character of magistrate, guardian, patrician, plebeian, etc. And how can these peculiarities find a place in a department which is concerned generally with Roman citizens sui juris?

As to the status familiæ the term status is not properly applied to it for another reason: because the peculiar rights of which it consists in every system or systematic exposition of law with which I am acquainted, are matter for the Law of Things. They relate to the law of succession, and cannot with any propriety be considered a status.

Before I quit this subject, I must remark on another obscuring distinction, which is a great obstacle to clearness of conception. This is the division of status or condition into natural and civil: or, as Heineccius has it, status qui ex ipsâ naturâ proficiscuntur, et status qui ex jure civili descendunt.⁹⁶ These latter were the tria capita already mentioned. Now every status must be civilis; that is the creature of positive law: for it consists of rights and duties which positive law attaches to some given incident. Nor do the phrases suggest any intelligible distinction even as to the facts in which the status originates. To be twenty-one years of age is not more natural than to be born out of the community. The error arose from the confusion, already adverted to, of status and caput. It was first assumed that these terms were synonymous; then the term status was limited to the three so-called status which are capita, and these were called status civiles. But finding that there were other differences between persons which engendered things looking exceedingly like status, civilians called these, to distinguish them from the others, status naturales. This was perfectly gratuitous; the Roman lawyers said nothing about it, and called many other things status besides the three capita.

The true nature of the idea of status, and of the distinction between jus personarum et jus rerum resuggested.

Having examined various definitions of the idea of status, and of the distinction founded on that idea, I will now offer a few suggestions which may perhaps conduct the hearer to their true nature.

720Though the rights, etc., which are constituent elements of a condition, are peculiar to the class invested with conditions of the kind, it is not true (e converso) that the rights, etc., which are matter for the Law of Things, are common to persons of all classes, or reside in or are incumbent upon all.

For example: All persons are not capable of being contractors, mortgagees or mortgagors, purchasers, etc. Nay, some status consist exclusively, or consist partly, in incapacities to take or incur the duties which are matter for the law of things.

When, therefore, I said in a former Lecture, that the Law of Things is to the Law of Persons, as the genus is to the species under it, the expression must be taken with the modification now suggested.

An expression more nearly approaching to the truth is this: that the rights, etc. which are matter of the Law of Things, must be taken into consideration before we can understand the rights, etc. which are constituent elements of any given status: Whereas, the rights, etc. which are constituent elements of any status, need not (generally speaking) be taken into consideration in order to an understanding of the Law of Things. They have no necessary currency with the bulk of the legal system, and may be detached from it without breaking its continuity. This is one principal reason for detaching it: for it does not break continuity, and renders the exposition of the bulk of the system more compact and coherent.

The first reason (namely, that the matter of the law of things must be taken into consideration in order to a right understanding of almost any status) will account for the difficulty which I suggested the other night, namely, that certain sets of rights and duties which would seem to regard specially comparatively narrow classes, are placed, nevertheless, in the Law of Things. They have such a coherency with the bulk of the legal system, that if they were detached from it, the requisite continuity in the statement or exposition of it would be lost.

Such, for example, is the bulk of the rights and duties devolving on the heirs of a deceased person. Though this juris universitas is not distinguishable from a status, yet if it were not placed in the Law of Things, the inconvenience would be incurred which I have already adverted to, since without an explanation of these rights, many rights of general interest and apparently of an elementary kind, could not be understood.

Or, again, A right of unlimited duration (as contradistin721guished from one of limited duration), etc. could not be understood without an explanation of the law of succession.⁹⁷

It is true, then, generally, that the matter of the law of things must be taken into consideration, before we can understand the rights, etc. which are elements of any given status. Whereas, the matter of any status need not be taken into consideration, in order to an understanding of the Law of Things.

This last is, however, not true universally. For the matter of many sets of rights, etc. deemed status, must be taken into consideration partly, in order to an understanding of the Law of Persons. We cannot, for example, understand the law of succession without considering the law of marriage, because succession depends upon legitimacy. The truth is that each department contains præcognoscenda necessary to the other; but those contained in the Law of Things are incomparably the more weighty and numerous.

A consequence of this is that, in different arrangements of the corpus juris, the law is variously distributed between the two departments. Many sets of rights and duties which by some are reckoned status are by others included in the Law of Things. By many German expository writers, and by M. Blondeau, the law of husband and wife, parent and child, guardian and ward, and almost that of master and servant; all the domestic conditions, in short, are inserted in the Law of Things immediately before the law of succession, because the latter cannot be understood without adverting to them.⁹⁸

The arrangement is illogical in this particular case, because, though certain portions of the law relating to the domestic conditions must be known in order to understand the law of succession, there need only be certain small portions, and the balance therefore of convenience inclines to placing this department of law in the jus personarum; and convenience is the only consideration by which the expositor would be guided. Thus, for instance, the exposition of Procedure requires the consideration of the sovereign authority; but it would be absurd for this reason to insert an exposition of political status in the Law of Things immediately before the head of Procedure.

On the whole, the two principal reasons for detaching sets of rights, etc., from the body of the legal system seem to be,

1st. That the rights, etc. constituting the status, regard specially a comparatively narrow class of the community; and 722that it is convenient to have them got together for the use of that class.

2ndly. That they can be detached from the bulk of the system without breaking the continuity of the exposition. And that the so detaching them tends to give clearness and compactness to the exposition of the bulk of the law.

And therefore, if to state them would break much continuity of exposition, these rights are left in jus rerum, though specially regarding a narrower class.

Where the two conditions concur, the two objects which I pointed out in the last lecture are accomplished; i.e. 1. assemblage of rights, etc. under a common head: 2. relief of general exposition from special matter. I will not say that these are the only reasons, but they are the principal.

In practice it has not been usual to detach them, although both conditions concur (i.e. though the rights be peculiar to a comparatively narrow class, and though detachable without breaking continuity) if the rights, etc. are few in number and unimportant.⁹⁹

But this is illogical and unsystematic. They ought to be detached, whether numerous or not, if they can be detached commodiously. Where a set of rights and duties, capacities and incapacities, specially affecting a narrow class of persons, is detached from the bulk of the legal system, and placed under a separate head for the convenience of exposition, that set of rights and duties, capacities and incapacities, is called a status. And this, it appears to me, is the whole rationale of the matter. Though, such is the pother made about status, that nothing but a most laborious inquiry into the subject could convince me that there was not more in it.

It is difficult to state the distinction, because it is a distinction suggested by considerations of arrangement, and therefore vague. But the distinction is not therefore useless, because not precise: and the same objection applies to most attempts at classification and arrangement.

It is important to explain it fully, on account of the extreme obscurity in which it has involved the science of jurisprudence.

This distinction, too, with that of jus in rem et jus in personam (or delicts and obligations) is the principal key to the necessary structure of Law.

I must here explain an apparent inconsistency. In my 723Outline, I say that the idea of status is a necessary one; and I said the same in my last Lecture. And yet I say that a status has no certain mark, and that the distinction between jus personarum and jus rerum is merely adopted for the sake of a convenient arrangement.

My explanation is this: That the differences (though not perfectly precise) which suggested the distinction, do exist in every system.

In every system, there are rights, etc. which concern specially comparatively narrow classes, and which can be detached from the bulk of the system with little or no inconvenience.

In every system there are also rights, etc. of a more general interest, or which it were impossible to detach from the bulk of the system without breaking its coherence and continuity.

There are therefore reasons in every system for adopting the distinction, although it may not be described precisely alike in any two systems. That this is true, is proved by its almost universal adoption. It is also, I repeat, a strong presumption in its favour that Bentham by a sort of instinct has been led to a distinction identical with this which he treats with so much contempt; his division of the corpus juris into the general and the special codes coinciding in principle with the distinction between the Law of Things and the Law of Persons.

Notes.

Blondeau’s terms suppose that the persons whom he Calls ‘Incapables’ are distinguished from those whom he calls ‘Capables’ only by incapacities.¹ But this is an error. Both are capables and incapables: each is capable (i.e. would acquire certain rights etc. and be subject to certain obligations etc. on the happening of certain incidents) of rights and obligations of which the other is incapable; and each is incapable, etc.—Capacity and Incapacity, therefore, cannot be made the basis of this distinction.

Excluding special and political Status as he does, the Law of Capables is with him equivalent to the Law of Things; for it includes all the rights, etc. which regard the other classes; and patres-familias (being considered apart from the modifications which special status etc. might work upon their private rights) may be said to be capable of all these rights. The division, however, in truth, is a division into patres-familias, and those who are not; patres-familias, in abstract, being capable of all etc.

The rights and obligations of capable persons are those which, 724though not belonging to every status, must be taken into consideration with reference crease to every status.

Besides, many of the elements of many status are not incapacities, but rights or powers not possessed by other classes: e.g. tutor or guardian, magistrate, etc.

Perhaps there is no man a ‘Capable;’—If by capable be meant a person invested with all the rights and capacities, and subject to all the obligations which are described, or ought to be described, under the Law of Things; certainly there is no one who is capable of all the rights and obligations which are described in both departments. It may be said of a man that he is not subject to this or that incapacity or this or that exemption; but it can hardly be said of him that he is free from all, or susceptible of none. In fine, everybody belongs to some class.

Tria capita.²

Quæritur itaque, Quid sit Status? Resp. Esse qualitatem, cujus ratione homines diverso jure utuntur, e.g. quia alio jure utitur liber homo, ab servus, alio civis, alio peregrinus; hinc libertas et civitas dicuntur status. Vocatur alias status in jure nostro, caput. Status Jurisconsultis duplex est, naturalis et civilis. Naturalis est, qui ab ipsâ naturâ proficiscitur, e.g. quod alii masculi, alii feminæ, alii nati, alii nascituri vel ventres. Civilis est qui ex jure civili descendit, uti differentia inter liberos et servos, cives et peregrinos, patres et filios-familias. Hinc status civilis triplex est; libertatis, secundum quam alii sunt liberi, alii sunt servi; civitatis, secundum quam alii cives, alii peregrini; et denique familiæ, secundum quam alii patres-familias, alii filii-familias. Jam ergo facile intelligitur axioma: quicumque nullo horum trium statuum gaudet, is non est persona secundum jus Romanum, sed res, quamvis homo sit.—Heineccius, Recit. p. 52.

Hominum jura civilia, quæcunque sunt, tribus hisce tanquam involucris continentur: libertate, civitate, familiâ, qui quidem status appellantur.—Mühlenbruch, D. P. vol. ii. § 214.

Die bürgerliche Rechtsfähigkeit ist das, was die Römer caput oder status nennen. Die Neueren nennen sie dagegen, verbunden mit allen durch die Gesetze erzeugten Eigenschaften, wovon einzelne Rechte abhängen, status civilis: die natürliche Rechtsfähigkeit hingegen, verbunden mit physischen Eigenschaften, welche besonders Rechtsverhältnisse zur Folge haben, status naturalis.—Thibaut, System, vol. i. § 3.

Bentham (misled by Blackstone and others) treats the distinction of jus personarum et rerum with great contempt; asking (and justly enough) how things can have rights, or what rights there can be 725which are not rights of persons? The truth is, that a distinction suggested by himself nearly tallies with the one which he rejects with disdain; or would tally with the latter, if the Roman lawyers had pursued the principle of the distinction consistently.—Author’s Note.

For Bentham’s Method, see Table IX. (post).

[beginning of lecture 43]