760
[end of lecture 44]

LECTURE XLV.

LAW OF THINGS.—ITS MAIN DIVISIONS.

Division of the Law of Things (or the Law minus the Law of Persons) into primary and sanctioning rights, etc.

I HAVE endeavoured to suggest the purport and uses of the division into Law of Things and Law of Persons: into General Law and Special Law: into a General Code and Particular Codes: or into the Law considered generally, and those portions of the law which peculiarly regard peculiar classes of persons, and which it is commodious to detach from the bulk of the system, and to consider (in appropriate chapters) wider a distinct department.

I have also endeavoured to explain the various meanings 761which are annexed to the expression jus publicum:—to explain the two disparate distinctions between jus publicum and jus privatum;—to shew that the distinctions are needless and perplexing;—and that public law, taken with a definite meaning (or as meaning the law of political conditions), ought not to be opposed to the rest of the law, but ought to be inserted in the Law of Persons, as one of its limbs or members.

I will now endeavour to explain the main division, which, in my opinion, should be given to the Law of Things.

The leading division which I would give to the Law of Things, I will first read from my Outline, and will then endeavour to illustrate by additional remarks.

1. There are facts or events from which rights and duties arise, which are legal causes or antecedents of rights and duties, or of which rights and duties are legal effects or consequences. There are also facts or events which extinguish rights and duties, or in which rights and duties terminate or cease. The events which are causes of rights and duties may be divided in the following manner: namely, into acts, forbearances, and omissions, which are violations of rights or duties, and events which are not violations of rights or duties.

Acts, forbearances, and omissions, which are violations of rights or duties, are styled delicts, injuries, or offences.

Rights and duties which are consequences of delicts, are sanctioning (or preventive) and remedial (or reparative). In other words the ends or purposes for which they are conferred and imposed, are two: first to prevent violations of rights and duties which are not consequences of delicts; secondly to cure the evils or repair the mischiefs which such violations engender.

Rights and duties not arising from delicts, may be distinguished from rights and duties which are consequences of delicts, by the name of ‘primary’ (or principal). Rights and duties arising from delicts, may be distinguished from rights and duties which are not consequences of delicts by the name of ‘sanctioning’ (or ‘secondary’).

My main division of the matter of the Law of Things, rests upon the basis or principle at which I have now pointed: namely, the distinction of rights and duties (relative and absolute) into primary and sanctioning. Accordingly, I distribute the matter of the Law of Things, under two capital departments—1. Primary rights, with primary relative duties. 2. Sanctioning rights with sanctioning duties (relative and absolute): Delicts or injuries (which are causes or antecedents of sanctioning rights and duties) included.²⁰

If I adopted the language of Bentham, and of certain German writers, I should style the law of primary rights and duties, 762substantive law; and the law of sanctioning or secondary rights and duties, adjective or instrumental law. In other words, I should divide the Law of Things, or the bulk of the legal system, into law conversant about rights and duties which are not means or instruments for rendering others available; and law conversant about rights and duties which are merely means or instruments for rendering others available. Substantive law as thus understood is conversant about the rights and duties which I style primary: Adjective law, about the rights and duties which I style secondary.

But it will appear, on a moment’s reflection, that the terms substantive and adjective law tend to suggest a complete misconception of the nature of the basis on which the division rests.

All the rights and duties which I style sanctioning or secondary, are undoubtedly means or instruments for making the primary available. They arise out of violations of primary rights, and are mainly intended to prevent such violations: though in the case of the rights and duties which arise out of civil injuries, the secondary rights and duties also answer the subordinate purpose of giving redress to the injured parties.

But though secondary rights and duties are merely adjective or instrumental, many of the rights and duties which I style primary are also of the same character. E.g.: The rights and duties of Guardians are merely subservient to those of the ward: The guardian is clothed with rights and duties in order that the rights of the ward may be more effectually protected, and in order that the duties incumbent on the ward may be more effectually fulfilled.

The same may be said of many of the rights and duties of Parents: of most of the rights and duties of subordinate political superiors, and, generally, of all rights which are merely fiduciary, or are coupled with trusts. These rights and duties suppose the existence of others, for the protection and enforcement of which they are conferred by the State.

In short, rights and duties are of two classes:

1st. Those which exist in and per se: which are, as it were, the ends for which law exists: or which subserve immediately the ends or purposes of law. 2ndly. Those which imply the existence of other rights and duties, and which are merely conferred for the better protection and enforcement of those other rights and duties whose existence they so suppose.

Though secondary rights and duties (or rights and duties 763arising out of injuries) are of this instrumental character, many rights and duties which are primary or principal (or which do not arise out of injuries) are also of the same nature. The division therefore of Law into law regarding primary rights and duties, and law regarding secondary rights and duties, cannot be referred to a difference between the purposes for which those rights and duties are respectively given by the State. And I object to the names, ‘Substantive and Adjective Law,’ as tending to suggest that such is the basis of the division. It appears to me that the division rests exclusively upon a difference between the events from which the rights and duties respectively arise.

Those which I call primary do not arise from injuries, or from violations of other rights and duties. Those which I call secondary or sanctioning (I style them sanctioning because their proper purpose is to prevent delicts or offences) arise from violations of other rights and duties, or from injuries, delicts, or offences.

The rights and duties which I style secondary, suppose that the obedience to the law is not perfect, and arise entirely from that imperfect obedience. If the obedience to the law were absolutely perfect, primary rights and duties are the only ones which would exist; or, at least are the only ones which would ever be exercised, or which could ever assume a practical form. If the obedience to the law were absolutely perfect, it is manifest that sanctions would be dormant: and that none of the rights and duties which sanction others, or which are mainly intended to protect others from violation, could ever exist in fact or practice, although they would be ready to start into existence on the commission of injuries or wrongs. If the disposition to obey the law were perfect, and if the law were perfectly known by all, there would be no injuries or violations of the law: and, by consequence, all the law relating to injuries, to the rights, duties, and other consequences flowing from injuries, and to procedure, would lie dormant.

We undoubtedly can conceive a state of society so improved and refined that the obedience to the law would be perfect. And this notion is what possibly led to the speculations of Godwin, Fichte, and others, about the possibility of doing without a government. Fichte said that it was the proper duty of every Government, sich selbst entbehrlich zu machen, to enable itself to be dispensed with. But though we may conceive a state of society thus highly cultivated and improved, we cannot 764look forward to its being realised, though undoubtedly a Government is good or bad in the ratio in which it approaches or recedes from that ideal. The speculations of these writers on the subject are not only useless, but there is a confusion of ideas in their own supposition. It is possible to conceive society without a government proper, and without law properly so called; without a commanding head and without law which properly commands; having merely a guiding and directing head which issues not properly imperative laws, but merely recommendations; or, as they have been called by Civilians, laws of imperfect obligation. But it is impossible (except in the first made state) to conceive society without one guiding or directing body; for positive morality, or the principal of its parts, namely the law set by general opinion, is necessarily so uncertain that it cannot serve as a complete guide of conduct, nor can it be sufficiently minute and detailed. The speculations, therefore, of Fichte and Godwin, not only sin in this respect, that by their exaggeration they render practicable improvement ridiculous, but in that they are founded on a complete confusion of ideas.

I do not deny that rights of the sort which I have called primary, may arise from injuries in a remote and consequential manner; as, for example, the rights arising from a judgment, or the lien of the plaintiff on the lands and goods of the defendant. But these rights do not arise so much from the injury itself, as from a peculiar title or mode of acquisition, namely the judgment and the institution of the suit. In order, however, to meet this objection, I will define primary rights and duties to be those which do not arise from violations of other rights or duties directly.

My main division of the Law of Things is, therefore, this: 1st. Law regarding rights and duties which do not arise from injuries or wrongs, or do not arise from injuries or wrongs directly or immediately. 2ndly. Law regarding rights and duties which arise directly and exclusively from injuries or wrongs. Or, law enforced directly by the Tribunals or Courts of Justice: and law which they only enforce indirectly or by consequence. For it is only by enforcing rights and duties which grow out of injuries, that they enforce those rights and duties which arise from events or titles of other and different natures.

Under the department of the law which relates to secondary rights and duties I include Procedure, civil and criminal. For 765it is manifest that much of procedure consists of rights and duties, and that all of it relates to the manner in which secondary rights and duties are exercised or enforced.

And here Bentham’s arrangement seems to me to be defective, as is also that of several German writers who have adopted the same views. In the Traités de Législation Bentham severs from droit substantif or the law, droit adjectif or the law of procedure. This, as it appears to me, involves a double logical error. For in droit substantif he includes droit civil (as opposed to droit pénal) and droit pénal; including under droit pénal, the law relating to civil injuries and to crimes with their punishments, together with the rights and duties growing out of those delicts and of those punishments. But first, as I have already remarked of substantive law as thus understood, much is adjective or instrumental. For all rights of action arising out of civil injuries are purely instrumental or adjective; as well as the whole of criminal law and the whole law relating to punishments. And 2ndly, if he calls the law of procedure droit adjectif, he ought to extend that term to the law relating to the rights and duties arising from civil injuries and from crimes and punishments. The division itself, therefore, is illogical, and his limitation of adjective law to the law of procedure only, involves a second logical error.

Distinction between an action considered as a right, and an action considered as an instrument by which the right of action is itself enforced.

It is said by Heineccius, ‘actio non est jus, sed medium jus persequendi.’ But it is impossible to distinguish completely a right of action from the action or procedure which enforces it. For much of the right of action consists of rights to take those very steps by which the end of the action is accomplished. It is perfectly true, that the scope or purpose of the right of action is distinct from the procedure resorted to when the right is enforced. Much of the procedure consists of rights which avail against the ministers of justice rather than against the defendant. And the parts of it which consist of rights against the defendant himself, are totally distinct from the end which it is the object of the process to accomplish.

But still it is impossible to extricate the right of action itself from those subsidiary rights by which it is enforced. And it is manifestly absurd to deny that the process involves rights, because 766the rights which it involves are instruments for the attainment of another right. And this is a reason for joining the law of procedure to the law of civil injuries and crimes.

While I am upon this subject, I will observe that a position of mine in a former part of my course, that every right of action arises from an injury, or violation of some other rights, has been objected to.

But it seems to me that the only cases in which a right of action does not presuppose an injury, arise from that anomaly in the English Law which I endeavoured to explain in a preceding Lecture; i.e. cases in which a right of action is given, although there has been no wrong on account of the want of wrongful consciousness on the part of the defendant.

Instance:—Possession bonâ fide: as in cases of money paid and received under a mistake: or of possession by purchase from a stranger who had no title: So long as the unconsciousness lasts, the possessor is not guilty of a wrong, but lies under a quasi-contract to restore. So soon as consciousness arises, he is guilty of a wrong.

In the case of an amicable pursuit, it may appear that there is a right of action without a wrong. But, in these cases, the question always is, whether there be in truth a wrong or not? A question arising from the uncertainty of the law, or from some uncertainty as to the fact.

What I affirm is, that every right of action arises from a wrong. I do not affirm that an action may not be wrongfully brought, or may not be brought in a case where there has been no wrong. So long as law and fact shall continue uncertain, questions will frequently arise as to whether a wrong has been really committed or not. To determine this very question is manifestly the purpose of the process which is styled pleading: i.e. of every step in the process which succeeds the plaintiff’s demand.

No Court of Justice (acting as such) would decide on a question of law or fact without a suggestion, on the part of the plaintiff, of a wrong, actual or impending. The Courts would not decide a purely speculative case, or advise the parties as to their future transactions; or if they did, they would not be acting as courts of justice. In exercising voluntary jurisdiction, they are rather lending solemnities to certain contracts. They are rather acting as registration offices than as courts of justice. What is called voluntary, and what is called contentious jurisdiction, are only linked up together under one name, because 767the judges, who, as such, have to do with the latter alone, sometimes combine with it the former, as they do various other functions.

In most systems of law, a vast number of primary rights and duties are not separated from the secondary: That is to say; The primary right and duty is not described in a distinct and substantive manner; but it is created or imposed by a declaration on the part of the legislature, that such or such an act, or such and such a forbearance or omission, shall amount to an injury: And that the party sustaining the injury shall have such or such a remedy against the party injuring; or that the party injuring shall be punished in a certain manner.

Nay, in some cases, the law which confers or imposes the primary right or duty, and which defines the nature of the injury, is contained by implication in the law which gives the remedy, or which determines the punishment.²¹

And it is perfectly clear that the law which gives the remedy, or which determines the punishment, is the only one that is absolutely necessary. For the remedy or punishment implies a foregone injury, and a foregone injury implies that a primary right or duty has been violated. And, further, the primary right or duty owes its existence as such to the injunction or prohibition of certain acts, and to the remedy or punishment to be applied in the event of disobedience.

The essential part of every imperative law is the imperative part of it: i.e. the injunction or prohibition of some given act, and the menace of an evil in case of non-compliance.

The reason for describing the primary right and duty apart; for describing the injury apart; and for describing the remedy or punishment apart, is the clearness and compactness which results from the separation. The cause of the greater compactness is that the same remedial process is often applicable, not merely to this particular right, but to a great variety of classes of rights; and, therefore, if it be separated from the rights to which it is applicable, it may be disposed of at once; otherwise 768it must be frequently repeated. But it is perfectly clear that the description of any of the separate elements, is not complete without reference to the rest. I have no right, independently of the injunction or prohibition which declares that some given act, forbearance or omission, would be a violation of my right; nor would the act or forbearance be a violation of my right, unless my right and the corresponding duty were clothed with a sanction, criminal or civil.

In strictness, my own terms, ‘primary and secondary rights and duties,’ do not represent a logical distinction. For a primary right or duty is not of itself a right or duty, without the secondary right or duty by which it is sustained; and e converso.

So complete is the complication of the one branch of the law with the other, that some primary duties cannot be described with any approach to completeness in their own part of the law; they can only be apprehended by looking at the description of the corresponding injury. Of this the two great classes of jura in rem, dominium and servitus, are instances. Sic utere tuo ut alienum non lædas: how can this duty be understood without first knowing the meaning of tuum and injury? There is often to be found no definition of a particular right, only an approximation to a definition, in so far as the acts and forbearances which are violations of it are declared to be crimes or injuries, and described in that portion of the law which relates to crimes and injuries. In Blackstone, the right of property is nowhere defined; and in the Roman lawyers, only in the most general way, with no attempt to enumerate the particular rights composing it and duties annexed to it.

Examples of the involution of primary rights and duties, in the description of the injuries, or of the remedies or punishments.

The rights which Blackstone styles absolute, are by him described apart from the corresponding injuries, and from the corresponding remedies or punishments. Not so in the Institutes: There they are described implicitly, together with the corresponding injuries, in the department which relates to obligations arising from delicts. Owing to this, and to his not understanding the expression, ‘Law of Persons or Conditions,’ he has placed them with the Rights of Persons. He fancied that the Roman Lawyers had forgotten them, and that otherwise they would have placed them there; whereas they did not overlook them, but placed them where they should be, in the Law of Things.

769Again, the duties which I have called absolute, as, for instance, the duties owed immediately to the State, are scarcely ever described explicitly, but involved in the description of the acts or omissions which are violations of them, or of the procedure by which these violations are to be pursued.

Another instance is the Prætorian Edict. As I stated in a former Lecture,²² the Prætor by his Edict did not formally declare that he conferred such or such rights, or imposed such or such duties. He declared that in certain cases he would give certain actions, or would give certain defences: the description of the action involving a description of the injury, and supposing a right conferred.

To shew how little logic is to be found in the very best attempts yet made to distribute the corpus juris into parts, I will observe that the description of the injury and of the remedy is sometimes annexed immediately to the primary right or duty; in other cases, removed to a totally distinct department. An example of this is the order of the Institutes in respect to rights and duties which arise from the infringement of rights ex contractu, and quasi ex contractu. By obligationes ex delicto, they meant what we mean by the same phrase in English law, namely, duties arising from violations of rights which avail against the world at large. Now the authors of the Institutes oppose to these, obligationes ex contractu and quasi ex contractu: but rights and duties arising from contracts and quasi-contracts are rights and duties existing for their own sake, as the Germans express it: they belong to the class of primary or principal rights and duties. Consequently there is no place for the obligations arising from the breach of obligations ex contractu and quasi ex contractu; these are consequently attached to the description of those obligations themselves. By this rule, however, obligationes ex delicto (by which the authors of the Institutes meant obligations which arise from violations of jura in rem) ought, in consistency, to be attached to that part of the law which is concerned with dominia or jura in rem; or, if banished to a separate head, obligations arising by offences against the rights founded on contracts and quasi-contracts ought to be placed there along with them. Such, for instance, are rights of action arising from a contract; for it is evident that there can be no action upon a contract until it is broken.

Blackstone’s method, though in general greatly inferior to that of the Roman Lawyers, is here superior to it. Under the 770head of personal property he treats of those obligations arising from contracts and quasi-contracts which are primary: in his third volume, when treating of wrongs, he adverts to those obligations growing out of contracts or quasi-contracts which arise from breaches of those primary ones.

[The following Notes were found at the end of the foregoing Lecture. are written on loose sheets of paper, without any mark as to the order in which they were to follow.—S. A.]

Several Divisions of Law.

Primary (or sanctioned) Rights and Obligations distinguished from sanctioning:

Law has sometimes been divided into substantive law and adjective or instrumental law, i.e. Law which relates to Rights and Obligations; and Law which relates to the means of enforcing these rights and obligations.

Objection: Many of the rights and obligations which are included under substantive law are adjective or instrumental; as, e.g. the powers and rights of Governors; those of Trustees.

The rights and obligations, therefore, which are the matter of substantive law, cannot be distinguished universally from the matter of adjective law, by their immediate end or purpose. Though most of them are rights and obligations for the enforcement of which the others exist, some of them are altogether instrumental. Though many of the rights of Governors are substantive, yet the rights which they possess in this capacity belong to them as private persons. The powers and rights which belong to them as Governors, ought at least to belong to them, not for their peculiar advantage, but for that of all.

As these rights, independently of violation, cannot be classed with those which suppose violation, it is manifest that we must find some other basis for the distinction between primary and sanctioning than this: viz. that the first are the rights and obligations to be secured, the others are merely securing. The distinction seems to be founded upon the difference of the incidents in which they directly begin. The first do not begin in violation, the second do. I say directly: because (as in judgments) the second may end in a fact which generates one of the first.

With reference to the final cause or ultimate purpose of law (be it exactly what it ought to be or not), rights and obligations are divisible into two sorts: Those which minister directly to that end, and those which are intended to prevent or remedy violations of the former.

Or the distinction may be expressed thus;—the first are not immediately enforced by the judicial power; the second are those which are immediately enforced.

771The distinction seems to be into Rights and Obligations which do not arise out of violations, and those which do. Amongst the former (as, e.g. the powers of Courts of Justice), many are sanctioning. So that the division into sanctioned and sanctioning is not complete; many of those which are sanctioned being also sanctioning.

The division, therefore (a division which applies to law of things and to law of persons equally), is this: 1. Rights and Obligations which do not arise out of infractions. 2. Violations. 3. Rights, etc. which do: i.e. Primary (or original or civil) rights, etc. and rights, etc. ex delicto.

Rights and obligations which it is the end of the Law to secure and to enforce.—Rights and Obligations which are created for the purpose of securing and enforcing the others.

This, from its simplicity, is specious, but will not suffice.

Distinction between Rights, etc. ex delicto, and the Procedure (also consisting in the exercise of rights) by which they are enforced.

Distinction between Civil and Criminal. The latter might (and in fact to a great extent does) contain the former: i.e. In the Code of Remedies, the rights intended to be protected, with the violations of them, might be (and in fact to a great extent are) implicitly contained.

This is the case with most rights established by judicial decision; decisions being directly decisions upon secondary or sanctioning rights: The case also with the Prætorian edict; the Prætor only giving actions, exceptions, etc.

This is also the case with almost all obligations correlating with Jura in re: and with rights of personal security, etc.

Absolute Obligations are, for the most part, first announced under the description of the acts which amount to violation of them.

Reasons for separating Rights and Obligations ex delicto from the rights, whether in re or ad rem, out of violations of which they arise.

If we attach to the description of each primary Right and Obligation, the description of the rights and obligations which grow out of a breach of it, we must also attach to it a description of the acts which are violations of it; since the conception of these must precede the conception of those. And, to be consistent, we must also tack to each right and obligation ex delicto a description of the process, civil or criminal, by which it is to be enforced.²³ Thus (as I have already remarked) losing the advantage of the conciseness which results from treating together all such violations as are susceptible of the same description, though they are violations of different primary rights; all such rights, etc. ex delicto as are susceptible of the same description, though they grow out of different delicts; and all such steps in procedure as are susceptible of the same description, although they are applicable to the enforcement of different rights and obliga772tions ex delicto. The effect of this morcellement would be endless repetition. It would be analogous to the rejection of generic terms.

But if to every primary right and obligation the violation of it, etc. were annexed, the extent of the right in respect of services (so far as settled) would be given in one and the same place: i.e. supposing that the definitions of Rights are implicated with the violations of them.

Reasons for separating Rights and Obligations ex delicto from Violations, and each from Procedure.

Scheme (in general)—‘Primary Rights,’ ‘Violations,’ ‘Rights ex delicto,’ and ‘Procedure,’ to be severally considered apart. Reasons for—Reasons against—Place for absolute Obligations.

1st. Distinctness of conception is thereby aided. 2nd. The generalia of each may thereby be detached; which could not be done, if, to every particular violation, the right, etc. which it generates were annexed; and to this, the particular mode of procedure by which it is asserted and enforced. 3rd. As one and the same act may be a violation of any of a number of primary rights (which is a reason for considering ‘violations’ apart from ‘primary rights’), so one and the same Right or Obligation ex delicto, may result from any of a number of violations; and one and the same mode of procedure be applicable to any of a number of such secondary rights and obligations. This last advantage seems to be the second, stated in another manner.

All these parts ought to be considered as members of one whole, and bear a common name: whereas the plural, ‘Codes,’ would seem to oppose them.

It would seem that the definition of primary rights cannot be made complete (not even approximately) without reference to the acts which are violations of them. Absolute obligations (as not belonging to either jura in re or ad rem) cannot be considered under Primary Rights, to which they in a certain sense belong.

[Jus in re (with its corresponding obligation) is passive: i.e. it supposes no obligation on the part of anybody to do, or suffer (by personal intervention). When violated, a right of another sort, in the injured party (or a public officer) against a determinate individual, is generated.

The negative or passive nature of these obligations, may account for their not being noticed. They are merely obligations to forbear; and the nature of them is described, not in conjunction with their corresponding rights, but under the description of those violations of them (called delicts in the narrower sense) which generate obligations proper.]

Not only are the obligations which correspond with Jura in re established in this indirect manner; but certain of the rights themselves are nowhere described, except under the head of ‘delicts,’ or of the Rights and Obligations which they generate.

These are the rights which are not preceded by a titulus.