Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 43

Having endeavoured to settle the import of the distinction between jus rerum and jus personarum, and to define the notion of status or condition, on which that distinction is founded, I will now add a few remarks, supplementary to the lectures in which I have discussed this subject.

First then: It has been doubted whether the Roman lawyers intended to insert in the jus personarum the description of the rights duties capacities and incapacities of which status or conditions are comprised; or to confine themselves to the facts or events by which the status are invested and by which they are divested. The solution of this doubt is, that neither the Roman lawyers, nor those modern civilians who have adopted from them the distinction of jus rerum and personarum, conceived with perfect distinctness its purpose, nor did any of them in the detail of their writings pursue it consistently.

Both the Roman lawyers and Sir William Blackstone inconsistently inserted in the Law of Things many rights and duties manifestly arising ex statu: and the Roman lawyers in many cases inserted in the Law of Persons a description only of the event which engendered the status, and the events by which it was destroyed: not of the rights and duties of which it consisted. For instance, in the Law of Marriage, they inserted only the manner in which marriages were contracted, the different conditions of a valid marriage, and the modes in which marriage was dissolved. In the law of tutelage and guardianship, on the contrary, they inserted not only the modes in which the status was acquired or lost, but also the rights and duties which constituted it. They had in truth no distinct conception of their own purpose, and they therefore pursued it in the detail inconsistently.

Through blending, as they do, the two methods, they lose 726the advantage of the first; keep the disadvantage of the second; and add a difficulty of their own: i.e. that of obliging the seeker to look for the peculiarities of status, not only under the descriptions of the several rights and titles, but also under the (as by them treated) purposeless department of jura personarum.

Jus actionum coordinated by the Roman lawyers with jus rerum and jus personarum. This is a logical blunder.

The next remark which I have to make is more important. Roman lawyers divide law, in the first place, into jus publicum and jus privatum; and in their institutional treatises they confine themselves principally to jus privatum. This they again divide into jus personarum, jus rerum, and jus actionum, including under this third head the law of civil procedure. This last distinction is also adopted in the Commentaries of Sir William Blackstone, whose object was more comprehensive, as he treats not only of what the Roman lawyers called private law, but also of what they comprised under the name of public law, namely, the law of political conditions; criminal law; and the law of criminal procedure. Both in the Roman lawyers and in Blackstone this division is grossly inconsistent; it deviates from the object of the distinction between the Law of Things and the Law of Persons. For according to this arrangement jus actionum, instead of being considered as a species, is co-ordinated with the two genera. It is manifest that the law of injuries, whether civil injuries or criminal, and of the rights and duties arising from injuries, and the law of civil and criminal procedure, really consist of a variety of species belonging to those two genera, and should therefore not be co-ordinated with jus personarum et rerum, but distributed under both.³ All matter contained in these departments of law, which relates peculiarly to any of the classes of persons which have been put into the jus personarum, should be placed in that branch of the law. For example, under the status of an infant should be placed the description of crimes, civil injuries, civil and criminal procedure as modified by infancy. For example, an infant, in a great number of cases, is not liable criminally, and in a logical arrangement these exemptions would be placed in the jus personarum. When an infant sues or is sued, the situation of plaintiff or of defendant is filled by his guardian instead of himself. This is not properly matter for the jus rerum but for the jus personarum, under the head of infancy. All the generalia of the jus actionum should be left in the jus rerum, while those parts which have relation specially to particular classes of persons, and which can be detached from the bulk of the legal system without breaking its continuity, should be 727placed under the respective heads of the jus personarum to which they belong.

³ Thibaut, Versuche, etc., vol. ii. pp. 8, 9, 19.

Logical inaccuracy of Blackstone’s division of the corpus juris into law regarding rights and law regarding wrongs.

The division therefore of the corpus juris into jus personarum, jus rerum, and jus actionum is a gross logical error. In Blackstone, the error is a consequence of his original division. For he does not, like the Roman lawyers, begin by dividing the law into jus publicum and jus privatum, and this last into jus personarum and jus rerum; but he divides the whole corpus juris into law regarding rights and law regarding wrongs. By law regarding rights, he means law regarding injuries, the rights and duties arising from injuries, and civil and criminal procedure. Having divided the corpus juris into these two divisions, and having then divided the first, or law regarding rights, into jus personarum and jus rerum, he could not include in either of these heads the law regarding actions. His division is illogical, it being manifest that the law regarding wrongs does not regard wrongs only, but rights also, namely, the rights which arise out of wrongs; as will be sufficiently evident to any one who looks through the third book of his Commentaries, and observes the matter of which it is composed.

The nature of the distinction between public and private law I shall advert to in my next Lecture; when I shall shew that it is as erroneous as this distinction of Blackstone’s; and that public law is not one main half of the corpus juris which ought to be opposed to the other half, but a very small portion of it, which ought to be included in the Law of Persons as a subordinate member: and Blackstone, in imitation of Sir Matthew Hale, has so included it. I am now speaking of public law in its narrower acceptation, for in its larger, the whole of criminal law is included in it. Criminal law as a part of public law (latius acceptum) is excluded by the Roman jurists from Law of Persons and Law of Things. But it ought to be distributed under those two departments.

The next topic to which I shall advert is the order in which the Law of Things and the Law of Persons should stand relatively to each other. If my account of the rationale of the distinction is correct, the Law of Things ought to precede the Law of Persons; because the Law of Things is the law, minus the Law of Persons, while the Law of Persons contains such portions of the Law as relate to specific and narrow classes of persons, and can be detached from the body of the law without breaking its continuity. Consequently the general code should come first, and the comparatively miscellaneous matters, which are 728properly a sort of appendix, should come last. Accordingly, Sir Matthew Hale suggested, and Sir William Blackstone practically adopted, this order. It is, however, impossible to sever completely the jus personarum and the jus rerum from one another. Even the jus personarum, though consisting mainly of the narrower positions and rules which modify the more general matter comprising the jus rerum, yet contains many positions, which must be anticipated before it is possible to explain the Law of Things. But the number of the præcognoscenda in the Law of Things is incomparably greater than the number of those in the Law of Persons. Although the two departments can never be completely disengaged from one another, the student must begin somewhere: and he should begin where he will require fewest references to what is to come afterwards. This topic is not of very great importance; it regards chiefly the logical symmetry of the body of law.

I may immediately explain in this place the nature of certain rights, which have been confounded by mysterious jargon; namely, those which are called natural or inborn, and by Blackstone absolute rights. For his ‘law regarding the rights of persons’ is not the jus personarum of the Roman jurists; their jus personarum is only one species of his law regarding the rights of persons, a species which he calls ‘law regarding the relative rights of persons’; as contradistinguished from another species, namely, law regarding the absolute rights of persons, that is, these natural or inborn rights.

I have already observed, that the rights or duties constitutive of status arise in two ways: they arise ex statu immediatè, either directly from the general or paramount title which engenders status; or from that general title through some subordinate title. The distinction between natural or inborn rights and any other rights is analogous to this.

Natural or inborn rights are those which reside in a party merely as living under the protection of the state, or as being within the jurisdiction of the state; if the party have any rights whatever, which the Roman slave had not. Now these are exactly what Blackstone called absolute rights. Such, for instance, is the right of personal security: the most general of any. This right is called natural or inborn merely because it arises sine speciali titulo; that is, it resides in a party, merely as living under the protection or within the jurisdiction of the state; now this fact having no special name, the right seems to arise without any title, and therefore ex lege immediatè; not 729requiring to be annexed by the law to any investitive event whatever. I agree, however, with Thibaut that this is a mistake, and that rights are always annexed to some fact or other; but this fact has not received any concise name, nor is anywhere described.

Such then are these rights, and such the origin of the name. They are the most general of any: they reside in all who live under the protection of the state or within its jurisdiction, and reside in them by reason of their living under its protection: and are called natural or inborn rights, because there is no precise fact, bearing a concise name, to which they are annexed by the law. It is manifest that they are not natural or inborn; for they are as much the creatures of the law, as any other legal rights.

Although the term is applied to rights only, it is equally applicable to many duties. There are many duties to which a person is subjected merely by reason of his being under the protection of the state, or being altogether, or to certain limited purposes, a subject of the state. Such, for instance, are duties towards the government itself; the duty of abstaining from any act of resistance, of abstaining from any act of tumult, and so on. These duties are as properly natural or inborn, as the rights which are so-called.

Blackstone here runs into a signal confusion of ideas, for he opposes these natural or inborn rights, by the name of absolute rights, to what he calls the relative rights of persons. But there are no such things as absolute rights: all rights are relative; they suppose duties incumbent on other persons. He defines these absolute rights to be rights appertaining to them merely as individuals or single persons. But I cannot conceive how they can be distinguished by that. All or most rights must belong to particular persons, and must belong to them as particular persona. Dominium, for instance, and all rights arising from contracts, come under this description. He further defines them, rights which would belong to persons in a state of nature; rights which they would be entitled to enjoy either in or out of society. But many other rights are in the same predicament. Contracts, for instance, or at least conventions, must have preceded society; or it is difficult to see how society could have arisen. No legal right, indeed, would in a state of nature be engendered by a convention, but a moral right would; which would be as completely a right as those mentioned by Blackstone. And as to legal rights, with which alone Blackstone was properly concerned, they, it is obvious, can only belong to a man in society.

730Amongst others of these absurdities, Blackstone instances, as an absolute right, the right of private property! A right which, it is quite obvious, cannot exist out of a state of society; and which is indeed the main object of his second volume. The word property is a term of exceedingly complex meaning, comprising a vast variety of rights: and he himself includes under it all the rights over real and personal property, which are described in his second volume. I suppose he must here mean by the right of private property, not any particular rights of private property but capacities to take rights of private property. But even these do not properly fall under this head: for many such capacities do not belong to all persons, certain classes (as, for example, aliens) being excluded from them. He should have inserted only those rights which necessarily reside in every person who is subject to the state either generally or to any limited purpose, or who is within its jurisdiction.

Another error of Blackstone is that of putting those absolute rights of persons under the head Rights of Persons at all. As residing in all persons, these rights are not matter for the law of Persons, but for the Law of Things; and by the Roman lawyers are so treated. The cause why this was overlooked by Blackstone seems to be that in this, as in other instances, the rights are not explained by the Roman lawyers directly, but only by implication, under the head of delicts; and the explanation nowhere else occurs.’⁴

⁴ This, according to J. S M.’s notes, is the end of this Lecture as delivered. What follows, consisting of fragments relating to the same subject, is retained as it stood in the last edition. These fragments, although less mature than the ceding matter, seem to be of some value, and are at least suggestive.—R. C.

Possible simplification. Implication of one status with every other, as well as of every status with jus rerum or the body of the system: e.g. a married infant, a husband-soldier, a married woman, a trader, etc. But unless the system be simplified, lawyers cannot understand all of it. And not understanding all, cannot have complete knowledge of any part. If it were accessible to all lawyers, expense and uncertainty would be mightily diminished.

[We have now no Lord Coke. His resemblance to Roman Lawyers.]

[Should the Law of Things be preceded by an enumeration of the 731several classes of persons? Or should this be prefixed to the Law of Persons, and only so much relative to status in general precede the former, as suffices to illustrate the distinction between these two grand divisions?]

The Method pursued in the Law of Things should be pursued under each head of the Law of Persons. (See Outline.)

In treating of any status (whether generic or specific) the rights and obligations, etc. direct or correlated, which grow out of it [or make it up] must be considered in the order observed under the Law of Things; i.e. Primary rights, with their subdivisions of jura in re, jura ad rem, compounds of both jura in universitatibus, etc.; and violations of these primary rights and obligations, with the secondary or instrumental rights and obligations by which such violations are remedied or prevented.

Principles on which Rights and Obligations are to be referred to this or that Status.

The rights and obligations, capacities and incapacities, susceptibilities and exemptions, which belong to a certain class as such (whether such rights, etc. are originally rights, etc. of that status, or restorations of jura rerum in derogation of the rights, etc. of another status with which it is combined), must be considered together.

E.g.: All that relates to the status ‘Infancy,’ abstracted from any other status, must be considered together. All that relates to the status ‘Trader’ must also be considered together: including thereunder such generic rights and obligations as infants when traders enjoy or are subjected to, contrary to the general rules touching infancy.

In order to determine the status to which any given right with its correlating obligation shall belong, inquire (1°) whether the obligation exist for the sake of the right, or the right for the sake of the obligation: (2°) whether the right or the obligation (as the case may be) grow out of, or exist by reason of, any, and what, status. Having found that it exists as a consequence of the existence of such or such a class, treat the right with its correlating obligations, or the obligation with its correlating rights, as forming part of (or failing under) the status of that class.

Under any department of the Law of Persons are to be considered not only the rights and obligations peculiar to the status, 732but also rights and obligations (generic or not) not belonging to the status as modified by it.

If a right, it has a correlated obligation imposed upon others. But inasmuch as this obligation exists for the sake of the right, and that, as we have shown, exists by reason of the status, it follows, that the obligation is also a consequence of the status, exists for the sake of it, and ought to be treated with it. The same reasoning is applicable to obligations, wherever they induce the consideration of their correlated rights though, existing in others; also to exemptions and incapacities.

The principles which lead to the distribution of the whole matter of the law into ‘Law of Persons and Law of Things,’ must also determine the departments and subdepartments into which the Law of Persons should be divided, with the order of those departments and of their several subdepartments.

Status divisible into (1°) those which (though they may attach upon any, or upon almost any) are limited to a few; and (2°) those which attach upon every one (at some time or other of his life), or which, if not universal, are very widely spread. Instances of the first genus; trades, professions, government offices, etc.: of the second genus; the various domestic conditions: of the first species of this second genus, infancy, and the filial condition: of the second species of the same, marriage and paternity.

The second genus, as being of more general application, should precede the first.

2nd principle; From the less to the more composite: From those which (to be complete) suppose not the explication of other or many status, to those which suppose such explication. But quære if there be any such principle, except in combination with the first. For the modifications of the more general by the more special status, it is natural to look, not into the first but into the last: e.g. for ‘Infant trader,’ not under ‘Infant,’ but under ‘Trader.’ Insomuch that ‘trader’ supposes an explication of infant.⁵

The peculiarities of status seem to consist: (1°) In rights, 733obligations, and capacities peculiar to the class; whether such rights, etc. be sui generis, or only modifications of others. (2°) In peculiar incapacities. (3°) In peculiar conditions to be fulfilled or observed before incidents can have their usual effect: But these seem to come under the head of peculiar rights, obligations, etc., or incapacities; i.e. conditional rights, etc. or incapacities.

So that wherever a set of persons have rights, obligations, etc. peculiar to themselves; or are incapable of such as are common to many others, there is a status: or, in other words, the persons are determined to, or constitute a class.

Rights, obligations (and capacities), which are not confined to one class, do not originate in status.

What it is that determines a Person to this or that Class, or what it is that makes the Class.

1°. The being clothed with actual rights and subject to actual obligations, peculiar to persons of the class; the being capable of investment with such peculiar rights, and of subjection to such peculiar objections; or the being incapable of certain rights and obligations of which persons of other classes generally are capable.

2°. Rights and duties ex speciali titulo, and rights and duties immediatè ex statu, or arising from the mere fact that the party is living under the jurisdiction of the Government.⁶

⁶ See p. 728, ante. See Table II. note 5, post. Note in Outline about Public Law, pp. 70-72, vol. i. ante.

Generally speaking, a right or duty forming a constituent element of a condition has been preceded by two events: 1. The event investing the status. 2. A title specially investing the right or duty: e.g. the peculiar right of a married woman to land or goods.

This, however, is not true universally. There are rights or duties ex statu immediatè, or arising from the event investing the status, without the intervention of a special titulus. Such is the right in rem to the status itself. Such too is the right of the father to exact obedience from the child, and to punish in case of disobedience. Such too is the corresponding duty of the child to render obedience; The right of the child to support: Certain rights and duties of husband and wife, guardian and ward, master and slave.

There are rights and duties in or upon all, sine speciali titulo, 734arising from the mere fact of their being within the jurisdiction of the given sovereign government (unless special incapacity intervened). [E.g. Right to personal security, etc.]⁷ Such rights are called ‘natural or inborn,’ because, arising sine speciali titulo, there is no obvious investitive fact. But in truth, there is scarcely a right or duty immediatè ex lege. (Why called so, see Thibaut, Jus in rem et in personam.)

⁷ See Blackstone, vol. i. p. 121. Natural rights, inborn rights, absolute rights. Blackstone’s confusion of meanings of ‘natural,’ and p. 728, ante.

This applies to duties as well as to rights. There are many that might be deemed inborn rights besides those usually called such: e.g. capacity of an heir apparent or presumptive, or before aditio (in Roman law). Here there is no special titulus, but merely a general capacity to take a number of rights (merely on the happening of certain incidents).

A right, duty, capacity, or incapacity, which originates in status (or forms a constituent element of a status), is peculiar to persons of the given class; although it may happen to be denoted by a generic expression which comprises a right or duty in or on persons of other classes. E.g. An infant may be bound in a contract—but subject to conditions and modifications peculiar to contracts made by infants.

An incapacity (as, to contract, take by purchase, etc.) may be common to many classes, as to aliens, persons convicted and attainted, infants or married women (in certain cases): but, in each case, the incapacity has something peculiar, in extent, ground, etc.

The Terms ‘Law of Things’ and ‘Law of Persons’ (with. their established Equivalents) are insignificant:

I.e. They give no notion of the purpose of the distinction which they are intended to mark. Law is concerned with rights and obligations (or capacity or incapacity for them): every right resides in a person, and most rights concern things (in the Roman sense); every obligation is also imposed upon a person, and generally concerns a thing: therefore all law is of or concerning persons, and most law, of or concerning things.⁸

⁸ See ‘Method of Blackstone,’ next page.

‘General and Particular’⁹ would suffice; but the same terms are also used in other senses: namely, to denote law which obtains through the whole of any State, as opposed to that which is peculiar to districts or places.

⁹ Traités, etc. vol. i. pp. 150, 294.

735‘Law of Things’ and ‘Law of Persons’ (Blackstone) is further objectionable for my purpose, because these two departments include Delicts, public and private, and Procedure, as modified by status: an extension, which (though absurdly) has not been given to them by others.¹⁰ It may also be doubted whether Law of Things was intended to include Jura ad Rem.

¹⁰ See ‘Method of the Roman Lawyers and Blackstone,’ pp. 737-741, post.

Law of the summum genus ‘Persons’ (or Law directly interesting, or regarding, all persons): and, Law directly regarding the several genera and species into which Persons are divisible.

The following notes entitled ‘Methods,’ etc., and frequently referred to in this and the succeeding Lectures, were found among papers some of which contain matter apparently destined to be employed in the completion of the Tables.—S. A.

1. Law of Persons and Law of Things, so far as regards primary rights and obligations.

2. (a) Law of Civil Injuries—(b) of the rights and obligations which thence arise—(c) and of civil procedure:—abandoning, here, the former division into ‘Law of Persons and Law of Things;’ and mingling civil injuries, etc. as unmodified by status (or as they concern all classes), with the same, as modified by status.

But Crimes, Special Law, and Public Law are not omitted. (See ‘Public and Special Law.’)

Great superiority of Blackstone’s method to that of the Roman Institutional Writers, the French Code, etc.—

1°. In treating civil injuries—rights, etc. ex delicto privato, and civil procedure, each apart from the other, instead of treating any one or two of them implicitly with another (vol. iii. pp. 115, 118).

2°. In treating crimes—rights, etc. ex delicto publico—and criminal procedure, in the same manner. ‘See Delicts.’

Like Gaius and the Compilers of the Institutes, he has no definite purpose in detaching the Law of Persons from that of Things. Throughout the Law of Things, much that arises out of status is considered. Therefore, if he intended to make law of persons relate to rights, etc. ex statu, he has not adhered to that intention. On the contrary, much that relates to status, is considered under the law of persons; so that if he intended law of persons to contain a mere enumeration of status, with the modes in which they begin and end, he has equally deviated from that.

[For a fuller account of the Method observed by Sir Wm. Blackstone, see Table VIII. post.]

This is founded upon a misapprehension of the terms of the Roman Law. By jura personarum and jura rerum the Roman lawyers intended, not the rights of Persons and Things, but the law of or relating to persons, and the law of or relating to things. This is manifest from Gaius, the Institutes, etc. The former having divided Jus or Law into jus gentium and jus civile, and having shown the various sources of the Roman Law or Jus, proceeds to divide that same subject according to the objects or subjects with which it is conversant: ‘Omne jus quo utimur vel ad personas pertinet, vel ad res, vel ad actiones. Sed prius videamus de personis.’ (Gaii Comm. i. § 8.) And having finished the jus personarum, proceeds to treat, not of the rights or even of the ‘law’ of things, but of their Division and Acquisition.

The misapprehension is founded upon that ambiguity (the application of the same term to law and to one of the consequences or creatures of law) from which, as we have already observed, our own law language is almost alone exempt. (Jus; Diritto; Droit; Derecho; Recht.)

But the distinction as explained in the cited places is not only founded upon a misapplication of language, and thereby involves the subject in obscurity:—it is also inconsistent with the subsequent exposition which Sir William Blackstone gives of these same rights. According to the terms of the distinction, the Rights of Persons are such rights as men have to their own persons or bodies: i.e. The right of moving without obstruction by others from place to place, subject to limitations imposed by law: and the right of freedom from bodily harm, subject to the same restriction. So that all such rights as a man may have in, over, or to external objects (whether other persons or things), ought, in pursuance of the same distinction, to have been excluded from the rights of persons, and treated of nowhere but under the rights of things.

737[Instances from the Commentaries in which Sir William Blackstone has treated rights to things under ‘Rights of persons’ (in his sense) and conversely. Husband and Wife, Father and Child, etc. vol. i. p. 128. Property, p. 138.]

In consequence of his misapprehension of the term ‘Rights of persons,’ he has treated (Book I. c. 1) rights to life, reputation, etc. with the obligations to respect them, under the rights of persons; although, as being common to every status, it is manifest that they belong to the rights of things. They are in truth universal jura in re sine titulo.

The Roman Law is free from this error; its error consisting in partially expounding the peculiarities of certain status under the ‘Jus personarum,’ instead of either giving thereunder a complete exposition of rights ex statu (on the one hand), or of limiting that department (on the other) to a mere enumeration of status themselves, and of the modes of their investment and divestment There is, however, no mingling of universal and particular rights, etc. under that department.

The Distinction between the Jura Personarum and Jura Rerum, as stated by the Roman Lawyers,

Is not, like that of Blackstone, liable to the objection that things are supposed capable of rights.

It is however liable to the second objection which we have presumed to advance against the method of the learned Commentator.

Law, as it relates to Persons, ought to have been the only subject of the first grand division. Instead of this, innumerable instances may be cited in which the law as it relates to Things is therein treated of. The Law of Persons is not confined to a more enumeration of status, and a description of the modes in which they begin and end. Instances of rights, obligations, etc. ex statu, are scattered up and down the other departments.

Whether, according to the Institutional method of the Roman lawyers, jura ad rem, or obligations stricto sensu, belong to the Law of Things?

The dispute seems to have arisen from confounding jura in re with the jus quod ad res pertinet.

The first belong partly to the Law of Things and partly to that of Persons; not being (generically considered) either dependent upon or independent of status, but being distinguished by this: that they avail against mankind generally.

The latter was intended to include, not only all such jura in re as are independent of status, but also all such jura ad rem as are independent of status. Actions being intended to comprise Procedure only.

738Proofs:—The announcement of the tripartite division with the corresponding method of treatment: The place occupied by succession per universitatem (sed quære). Sir William Blackstone’s view of’ the subject; who places Property, etc. and Contract, etc. under a common department: yin. ‘Rights (or, as it ought to be, Law) of Things.’—This also accords with the opinion of Suarez, who divides Law (i.e. primary rights and obligations), in the same manner into two departments, ‘Law of Things and Persons.’

(1.) Jura in re (including such an anticipation of jura ad rem as was necessary to make Universitates juris intelligible).

(2.) Jura ad rem.

(3.) Procedure.

ex c:
ex q. c: ex q. d.

ex d.

But, according to the announcement, Procedure and jus in re (in one of which jura ad rem must be comprised) co-ordinate with jus personarum.

Want of a generic expression may have led to all the confusion. Wanting a generic expression to denote the half which it was intended to oppose to jus personarum, they have co-ordinated its parts with jus personarum, forgetting one of them.

The effect of the whole is this: They intended (though the intention was obscure) to divide the whole of Private Law (excluding therefrom, not only political status, but also professional status and the whole of criminal law) into two principal departments; one of which they further meant to divide into three divisions. But for want of a generic name wherewith to designate this department, they have treated its divisions as if they were of the same rank as the other department. And further, through forgetfulness (or for some unaccountable reason) they have degraded one of these three divisions to the rank of a subdivision of one of the others, leaving it uncertain to which they intended to refer it.

If this were the scheme, ‘Obligatio’ belongs neither to ‘Jura Rerum’ nor to ‘Actiones,’ but is a division (on the same line with these) either (l°) of the great department, ‘Law of Rights, etc. non ex statu;’ or (2°) of the whole of private law (assuming that the proper subject of the Law of Persons is a mere enumeration of status, etc.)

Remarks upon the method observed by Gaius.

In pursuance of that well-founded distinction between Law of Persons and Law of Things which Gaius, in common with other Institutional writers, has adopted, the main division (according to Ends 739and Subjects) should not have been threefold (still less fourfold), but twofold; the matter of the Law of Actions (i.e. civil procedure), as unmodified by status (or, in other words, the generalia of the law of actions), being included under the Law of Things, and the several modifications, under the several status out of which they arise.

The treatise is confined to Private Law: i.e. all that relates to political status—to the Sovereign and to the administration of the sovereign power—is excluded. No regular account even is given of the constitution of Courts of Justice, without which the law of actions is not intelligible.

Criminal Law, or publica judicia (briefly mentioned in the Institutes): i.e. crimes, punishments, and criminal procedure, are altogether omitted; though the greater part of crimes are as much violations of private primary rights as the private delicts of which he treats. (So also Blondeau, X.)

The purpose of the distinction between Law of Persons and Law of Things, is not only forgotten with reference to Civil procedure; but rights and obligations of all other sorts, without distinction to their universality or particularity, are scattered up and down through the two (or three) first divisions. If the purpose was to sever Law of Persons from Law of Things in the manner supposed, all the rights, etc. ex statu should have been put into the former, and it should have been placed last.

If the purpose merely was to enumerate the several status and to explain the respective modes in which they begin and end, and then to deal with rights and their respective modifications ex statu in succession (as explained above), the matter of the treatise should have been divided in a totally different manner; and none of the Rights, etc. which originate in the several status should have been thrust into the preliminary enumeration of them.

On that supposition, there would have been no such division as that into Law of Persons and Law of Things. But the space now occupied by what is called the law of persons, would have been merely an introductory disquisition on the several status;—the body of the work comprising all rights and obligations; those which originate in status, as well as those which do not.

Another great defect is, the desultory and defective manner of dealing with delicts. For, first, he confines the term to violations of jure in re; only treating ex professo of these: as if violations of rights ex contractu and of other jura ad rem were not just as essential to a complete view of the subject. Secondly, he scatters them through that part of the Law of Things which relates to Obligations, stricto sensu, or to jura ad rem, and also through the book which is professedly devoted to Procedure;—thus confounding the matter of Actions and Exceptions, etc. with the mode in which these several rights are enforced. Violations of jura ad rem are in the same case; and, as is said above, are nowhere expounded explicitly and professedly: being either considered implicitly (under the head ‘De Obligationibus’) on occasion of the obligations of which they are violations; or explicitly under ‘actions.’

740Another defect common to Gaius and the Institutes, is the confounding combinations of Alienation and Contract with Contract; and the placing universitates juris before jura ad rem. See ‘Combinations of jus in re and jus ad rem.’

Remarks upon the Method observed in the Institutes.

Having announced a threefold division (and the same objection applies to Gaius)—Persons, Things, and Actions, the compiler makes a fourfold one; treating under ‘Things,’ of jura in re, and under ‘Obligations,’ of jura ad rem: thus opposing one species of rights and obligations to another (not by names, one of which denotes one species of rights, etc.; and another, another; but) by names the last of which, indeed, has reference to a species of rights, but the first of which denotes the subjects of rights. The result of this division is, that instead of treating of ‘Things’ apart and then opposing one species of rights over things (and other subjects) to another;—he indicates things and a species of rights by a name which seems to oppose things to rights; and, what is worse, to oppose them to a sort of rights. A consequence of which is, that jura in re seem to be suppressed.

Another objection is, that as the obligations which correspond to jura in re are not treated of explicitly (but left to be collected from ‘delicts’), and, on the other hand, the term ‘obligation’ is used to denote jura ad rem, as well as their corresponding obligations, the first seem to be rights without obligations, and the second obligations without rights. But this arises from that remarkable defect in the Roman law language which I have observed upon above.

The Law distributed under five Codes; viz.:

Defects: Only so much of the Law of Persons as concerns domestic and quasi-domestic Status is comprised in the Civil Code. The law which relates to Traders (and which, for reasons given above, ought to enter into the Civil Code under the head of Law of Persons) is made the subject of a distinct Code, and opposed, as it were, to the law of which it is only a member. It is like dividing the human 741body into the right or left arm, and all such parts of it as are not right or left arm.

The administration of the law relating to traders by distinct tribunals is itself an absurdity, and not suggested by reason, but the work of blind imitation. And admitting that the separation of jurisdiction is a good, that is no reason for this mutilation. All that is peculiar to traders (tribunal, as well as other peculiarities) would, of course, in a just Corpus Juris, be contained under a distinct head; which is all that is done now; the Code de Commerce supposing all other parts of the Code.

The rest of the law which relates to Status is not in any Code or Codes at all: having never, so far as I know, been reclaimed from chaos: and being only to be found, either in the Jurisprudence of the tribunals, or in an immense mass of laws issued from time to time without system.

Civil Injuries are nowhere described; being merely implied in the description of the rights of which they are violations, or in the description of the Procedure by which the Rights and Obligations which they generate are enforced. (Quære.)

Rights and Obligations ex delicto privato are, in the same manner, established by implication. (Quære)

Crimes are nowhere described apart; being implicated with, and described indirectly in the Code of Punishment or that of Criminal Procedure.

‘General Law and Particular Law.’—(Traitiés, etc. vol. i. p. 150.)

Here, the purpose of the distinction into Law of Things and Law of Persons, is clearly, though briefly indicated, and well expressed: being the purpose of the very distinction between jura rerum and jura personarum which he reprobates (pp. 259, 294, 299).

¹¹ This refers to the following sentence in Bentham:—‘De toutes ces divisions, celle en droit pénal droit cival et droit constitutionnel, est la plus complète et la plus commode.’—Traités, vol. i. p. 151.

Confusion of Status (i.e. the belonging to a class having peculiar rights, etc.) with the being invested with rights, etc. which arise out of a character that may belong to many classes: as ‘Héritier, Vendeur,’ etc. ‘Voleur, Séducteur,’ etc. pp. 300, 304.

[According to this plan, all that relates to Contract must be repeated under every status.

Where a difference in the law is bottomed in some peculiarity in the subject of the right, the difference should be described under the division’ Things.’ Quære: Whether any peculiarities of persons (as subjects of rights) should be considered under the several Status, or under ‘Things’?]—Marginal Note.

742Idea of treating Obligations expressly and all Rights implicitly.

Confusion of that part of the Code which treats of Civil Injuries, with that which treats of Crimes.

[Wherever a distinct status is created (whether it be domestic, special, or public), the peculiarities (whether rights, obligations, incapacities, or exemptions) in which it consists, should not be mixed up with the provisions which are generally applicable. It is merely because it is expedient to treat of these peculiarities apart that a status is created: i.e. that they are professedly treated apart.

Where the mischievous act by reason of which compensation is due from the actor to the sufferer, is not intentional or negligent can it be called an injury or a violation of a right? Being followed by the same consequence, viz. liability to make compensation (or restitution), it may, by analogy, be called an injury = a quasi-delict), as incidents not contracts are called quasi-contracts.]—Traités, etc. vol. i. p. 334, Marginal Note.

‘Chaque loi civile forme un titre particulier qui doit enfin aboutir à une loi pénale.’

[That is, if the obligation to repair a civil injury be considered as a punishment.]—Traités, vol. i. p. 161, Marginal Note.

The next folio is headed,

‘Remarks upon Mr. Bentham’s Ideas of Method;’ but the rest is a blank. The nature of some of the intended ‘Remarks’ may be gathered from the foregoing hints; and from the marginal notes extracted from the ‘Traités.’—S. A.

In Falck, civil injuries are mixed up, as in the Institutes, with contracts and quasi-contracts: and (as also in the Institutes) none but violations of jura in re are directly described: violations of contract and quasi-contract being either left to be deduced from the description of the contract and quasi-contract itself, or being mixed up with actions: i.e. civil procedure.

The Rights and Obligations arising out of civil injuries are either annexed to the description of the violations, or are confounded with procedure.

Crimes, the obligations arising out of them, and criminal procedure, are blended together; though civil procedure is professedly treated apart from civil injuries and the rights which they beget.

Criminal Law is placed on the same line with, and opposed to, Civil Law; which is absurd for many reasons. Firsts to oppose (i.e. not merely to distinguish from, but to co-ordinate with) a peculiar species of violations, etc. of primary rights, to those primary rights and to other violations of them, etc. is absurd: Primary Rights and 743Obligations being opposed, not to a species of violations and sanctions, but to the whole of them.

Secondly, Civil Procedure, being by him separated from primary rights and civil injuries, etc. is thus left out of the division into Civil and Criminal. And to make it a co-ordinate class with them seems to be absurd.

‘Mit Rücksicht auf die angegebenen Hauptgesichtspunkte werden sich folgende Theile ergeben:

‘1. Das Privatrecht mit den Unterabtheilungen in (a) das bürgerliche Recht, (b) das Kirchenrecht, (c) das Polizeirecht, (d) das Criminalrecht, und das Prozessrecht.

‘2. Das öffentliche Recht, zu welchem, gehören: (a) das Staatsrecht, (b) das Regierungsrecht, (c) das Finanz- und Cameralrecht, und (d) das Völkerrecht.’

Law (or the Science of Law—Jurisprudence) cannot be expounded without dividing it into parts.

The division most in use is founded upon an enumeration of the several sorts of Rights: but, inasmuch as right correlates with obligation, an enumeration of the several sorts of Obligations would be just as good a basis for a division.

Both Right and Obligation (i.e. legal right and obligation) being creatures of Law, the notion of Law (or of a politically sanctioned Rule) ought to be placed in front (or to be made the punctum saliens) of a division.

The bases are substantially the same. Whether you divide Law as it relates to different subjects, or Rights (with their obligations) as they relate to those same subjects, your divisions will severally be conversant about the same sets of subjects.

A division, of which each part should exclude the subject of every other, is not possible.]

2. Inclusion of International Law in public law, and treating it with Military Status.

3. Inconsistency of treating Civil Injuries and Rights ex delicto privato, as a portion of private law; though he puts Civil Procedure, Crimes, etc. under Public.

7444. The making Polizei-Recht a distinct department of a system, into all the departments of which its matter enters.

[The portion of Hugo referred to, is the chapter called ‘Theile des Rechts,’ in the ‘Lebrbuch der juristischen Encyclopedie.’ The following comments are copied from the margin.]

Rights of Action 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 matter for exception, upon which it is built. Civil injuries are not considered directly. Sanctionative Civil Rights, which are exercised extrajudicially, are forgotten. Confusion of Crimes, and their consequent obligations, are classed with Criminal Procedure.

All the other departments into which Law may be distributed, are but Collections of fragments detached from the two essential ones; viz. Law of Things or General Law, and Law of Persons or Particular Law.

Law which is conversant with persons as not arranged under classes; Law which is conversant with persons as arranged under Classes, or, in other words, as invested with status or conditions. The former is analagous to the supreme genus: the latter, to the genera and species which are contained in the supreme genus. Only analagous; because the Rights, etc. which are the subject of the former, are not all of them common to all classes. It is, however, analogous, inasmuch as the consideration of it is necessarily implied in the consideration of every status.