783
[end of lecture 46]

LECTURE XLVII.

ON THE FIRST GREAT DIVISION OF JURA IN REM, OR THE DISTINCTION BETWEEN DOMINIUM AND SERVITUS.

Primary rights, with primary relative duties.

Having indicated the leading divisions which I give to the Law of Things (or to the Law minus the Law of Persons), I now proceed to the first department of the latter: namely, ‘Primary rights, with primary relative duties.’

Postponement of primary absolute duties.

Of the duties which I style absolute (or of the duties which have no corresponding rights), many are primary or principal, 784or are not effects or consequences of delicts or injuries. Consequently, they ought, in logical strictness, to be placed in the first department of the Law of Things. But for reasons which I hint at in my Outline,²⁷ and which I shall produce in a subsequent Lecture, I think it commodious to place absolute duties in that department of the Law of Things which is concerned with the rights and duties that I style sanctioning or secondary: namely, in that sub-department of that second department, which I give to the consideration of crimes and their various consequences.

Distribution of primary rights under four sub-departments.

In treating of primary rights, with their corresponding primary duties, I shall distribute them under four sub-departments: the ground or rationale of which distribution may be found in the following considerations:

It will be found on examination (as I stated in my earlier Lectures), that every right, simple or complex, is jus in rem (or a right against persons generally), jus in personam (or a right against a person or persons specifically or individually determined), or a combination or compound, more or less complex, of jus in rem and jus in personam.

Accordingly, I divide primary rights (including their corresponding primary duties), into the four following sub-departments. 1. Rights in rem as existing simply, or as not combined with rights in personam. 2. Rights in personam as existing simply, or as not combined with rights in rem. 3. Such combinations of jus in rem and in personam as are less complex. 4. Such more complex aggregates of jura in rem and in personam as are styled by modern Civilians universitates juris, or universities of rights and duties.

This division, why preferable to that of the Roman Lawyers.

This order is somewhat different from that of the institutional treatises of the Roman Lawyers, and from that of those modern Civilians who have followed the method of those treatises. By them, the matter of the law of things is divided into dominia (in the largest sense of that term) or jura in rem, and obligationes or jura in personam. And dominia in the largest sense of the term are again divided into dominium rei singulæ, jura in re alienâ, and universitates juris. The first of these three comprehends rights of property, strictly so called; the other two include all other jura in rem. Obligationes are divided into obligationes ex contractu, quasi ex contractu, and ex delicto.

This division appears to me very incorrect. A man’s inheritance or patrimony, for instance (which is a universitas 785 juris), includes both jura in rem and jura in personam, because rights of both sorts devolve on universal successors. It is much more correct, therefore, as well as more convenient, to distinguish primary rights into jura in rem, jura in personam, and aggregates more or less complex of rights of both kinds. And according to the arrangement of the Roman Lawyers, many rights which are truly combinations of rights in rem and rights in personam, are scattered through the corpus juris under those various heads.

For example, the right conferred by a mortgage, is a combination of rights in rem and rights in personam. So is the right conferred by a sale, completed by delivery, at least under some circumstances. If accompanied by a warranty, express or tacit, of the soundness of the title, it does not confer jus in rem simply, or jus in personam simply. The sale completed by delivery, passes a right in the thing sold, which avails against the world in general, but, by the warranty, there also accrues to the buyer, a right availing against the seller determinately or exclusively.

Even by my own method the distinction between the classes of rights is not complete, and they cannot by any method be kept quite separate. Under the head of universitates juris, we cannot avoid referring forward to obligations arising from injuries: for many rights arising from injuries often devolve from Testators, Intestates or Insolvents, to those who take per universitatem.

An objection to a former position examined.

And here I will advert to a difficulty which arises out of an observation of mine in a former Lecture. I said that all duties are such as answer either to rights in rem or to rights in personam: and I added that the duties answering to rights in rem are always negative, or are duties to forbear. To this it has been objected by one of my hearers, that there are positive duties lying on persons generally: Positive duties (or duties to do or perform) which lie upon persons generally and indeterminately.e.g. A duty, incumbent on the community generally, to pay a tax imposed by the sovereign government: Or a duty incumbent generally on persons of a certain age to render military service. But in all these cases, the duty, assuming that it lies on persons generally, is absolute. There is no determinate person, physical or complex, towards whom the duty is to be observed: or the only person, physical or complex, towards whom the duty is to be observed, is the sovereign government of the given community. And, for reasons which I have produced in my published Lectures, we cannot say with propriety of a sovereign government, that it has legal rights against its own subjects. The division which I was alluding to when I made the observation in question, was a 786division of relative duties merely, that is of duties answering to rights residing in determinate persons; and every relative duty does answer either to a jus in rem or to a jus in personam.

And here I may remark, that relative duties are the only duties which are noticed in the Institutional writings of the Roman lawyers: the reason of which is, that they are a treatise on private law: i.e. excluding political status, and criminal law, under the name of public law.

Now absolute duties would naturally (according to this arrangement) come within the province of public law. The duties imposed by the Government, and to be performed towards the Government, would fall under the law of political status: the purely absolute duties to be performed towards no determinate persons whatever, would fall under criminal law, to which they would either be prefixed by way of preface, which would in my opinion be the preferable order, or would be described implicitly, in the description of crimes and of their corresponding punishments.

Rights in rem as existing per se, with reference to differences between their subjects.

In treating of rights in rem as existing simply (or as not combined with rights in personam), I will first touch upon them briefly, with reference to differences between their subjects, or between the aspects of the forbearances which may be styled their objects.

In relation to rights of the class as considered from this aspect, I have said in my Outline:²⁸

‘The expression in rem, when annexed to the term right, does not denote that the right in question, is a right over a thing. Instead of indicating the nature of the subject, it points at the compass of the correlating duty. It denotes that the relative duty lies upon persons generally, and is not exclusively incumbent upon a person or persons determinate. In other words, it denotes that the right in question avails against the world at large.

‘Accordingly, some rights in rem are rights over things: others are rights over persons: whilst others have no subjects (persons or things) over or to which we can say they exist, or in which we can say they inhere.—For example: Property in a horse, property in a quantity of corn, or property in, or a right of way through a field, is a right in rem over or to a thing, a right in rem inhering in a thing, or a right in rem whereof the subject is a thing.—The right of the master, against third parties, 787to his slave, servant, or apprentice, is a right in rem over or to a person. It is a right residing in one person, and inhering in another person as its subject.—The right styled a monopoly, is a right in rem which has no subject. There is no specific subject (person or thing) over or to which the right exists, or in which the right inheres. The officium or common duty to which the right corresponds, is a duty lying on the world at large, to forbear from selling commodities of a given description or class: but it is not a duty lying on the world at large, to forbear from acts regarding determinately a specifically determined subject. A man’s right or interest in his reputation or good name, with a multitude of rights which I am compelled to pass in silence, would also be found, on analysis, to avail against the world at large, and yet to be wanting in persons and things which it were possible to style their subjects.

‘I shall therefore distinguish rights in rem (their answering relative duties being implied) with reference to differences between their subjects, or between the aspects of the forbearances which may be styled their objects. As distinguished with reference to those differences, they will fall (as I have intimated already) into three classes.—1. Rights in rem of which the subjects are things, or of which the objects are such forbearances as determinately regard specifically determined things. 2. Rights in rem of which the subjects are persons, or of which the objects are such forbearances as determinately regard specifically determined persons. 3. Rights in rem without specific subjects, or of which the objects are such forbearances as have no specific regard to specific things or persons.’

In explaining, in my earlier Lectures, the nature of the distinction between jus in rem and in personam, I cited numerous examples of rights in the former class which have no specific subjects (persons or things). And it, therefore, will not be necessary to adduce examples here.

With regard to jura in rem, which are rights over persons, I would observe that all (or nearly all of them) are matter for the law of Persons and the Law of Status. Such, for example, is the case with the right of the master to the slave; the right of the master in the servant; the right or interest of the parent or husband in the child or wife; and the right or interest of the child or wife in the parent or husband. In these, and various other cases, the right is jus in rem (or a right availing against the world at large) of which the subject is a person. 788But in each of these cases, the right is a constituent element of a status or condition, and therefore is appropriate matter for that appendix or supplement which is styled the Law of Persons.

The only right in or over a person which seems appropriate matter for the Law of Things, is what may be called a man’s right in his own person or body: that is to say, a man’s right to enjoy and dispose of (free from hindrance by others) his bodily organs and powers, in so far as such enjoyment and disposition consist with the rights of others, or (generally) with any of the duties incumbent on himself.

This right (which, as I shall shew hereafter, may be likened to property or dominion in a thing, strictly so called) is properly matter for the Law of Things, or for the Law exclusive of the law of status. Instead of being parcel of a status or condition, it resides in every person (who has any rights at all) by the mere fact of his living under the State, or within the protection which it yields to those who are living under its jurisdiction.

And here I will make an observation upon Blackstone’s division of those rights which are commonly called natural or inborn, and by him absolute rights. He divides them into the right of personal security (including the right to the enjoyment of life, limbs, bodily health, and reputation), the right of personal liberty (that is, a man’s right to move his body from place to place at his pleasure, as far as he can do so consistently with his legal obligations); and, lastly, the right of private property, which is in truth no right, but a collective name for all the rights with which his Commentaries are conversant.²⁹ He should (I think) have included right of personal liberty, in the sense in which he understands it, under the head of right of personal security, or right in a man’s own person. For it is merely the power of disposing of one’s person consistently with the rights of others, and with duties lying on one’s self. And, on the other hand, the right to reputation, which seems to have no immediate connection with a man’s own person or body, ought not to have been included in the right of personal security, but ought to have been co-ordinated with it.

Inborn or natural rights (or rights residing in all without a special title), would therefore fall into two kinds: namely, right to personal security, or right in one’s own body, and the right to one’s reputation or good name.

Right to liberty, what?

Perhaps, however, by the right to liberty he does not mean the mere right to the enjoyment and disposition of one’s person 789or body, but every right to do or forbear which is not comprehended by other specified rights.

Political or civil liberty is properly the mere liberty from legal obligation left by Government to its own subjects, which liberty the Government may or may not couple with a legal right to it. When it does so couple it, the liberty may or may not be part of some specified right: if it be, it falls within the description of that right. If not, then the right to liberty is any right to do or forbear, which is not comprehended by any other specified right whatever. For example, the right to publish one’s opinions freely is not specified anywhere as a particular right, and therefore fails wider the vague term right to liberty. There are a multitude of rights in that predicament; they must necessarily be left under the vague general description of rights to liberty. The only way to determine what the right is, is by determining what act would be a violation of it. If you know what act would be an infringement of your right of liberty, you know to that extent what the Government has given you liberty to do. As against the Government itself you can have no legal right; as has already been sufficiently shewn.

Rights in rem over things, the only rights which I shall treat directly.

In treating of tights in rem as existing simply (or as not combined with rights in personam), the only rights which I shall consider directly are, rights over things, in the strict acceptation of the term: that is to say, such permanent external objects as are not persons. Rights in rem in or over persons, and rights in rem which have no subjects, I shall touch incidentally (in so far as I may find it necessary to advert to them), as I treat of rights of the class in or over things.

Distinction between property or dominion, and easement or servitus.

Of the various distinctions between rights in rem over things, the first to which I address myself, is the distinction which I must mark, for the present, by the ambiguous and inadequate names of dominium and servitus, or property and easement.

I have stated in my Outline, the nature of the distinction to which I am now adverting.³⁰ In my next Lecture I shall attempt to explain it, as accurately as my time will allow. And attempting to explain that distinction, I shall proceed in the manner marked out in my Outline.³¹

Various meanings of ‘property’ or ‘dominion,’ etc.

Before I close the present Lecture, I will make a few remarks upon the various meanings of the very ambiguous word ‘Property’ or ‘Dominion.’

7901. Taken with its strict sense, it denotes a right—indefinite in point of user—unrestricted in point of disposition—and unlimited in point of duration—over a determinate thing. In this sense, it does not include servitus, nor any right of limited duration. Sometimes it is taken in a loose and vulgar acceptation, to denote not the right of property or dominion, but the subject of such a right; as when a horse or piece of land is called my property.

2. Sometimes it is applied to a right indefinite in point of user, but limited in duration: for instance, in common parlance, a life interest in an immovable is a property.

3. Sometimes the term ‘right of property’ or ‘dominion’ is opposed to a right of possession (which will be analysed hereafter); that is, to a right over and in a determinate thing, which arises from the fact of an adverse possession. As opposed to this, the term ‘right of property’ almost comprises servitus; for it means, not a right distinguished by indefiniteness of user, but a right (either property or servitude) which is not a right of possession: a complete right as against the world, as distinguished from a right against all the world except a determinate person or party who has properly the right in the subject; as when we say, that the right of possession ripens by prescription into dominium or property: and we say so even when the right acquired is a servitus.

4. In the language of the classical Roman jurists, the term proprietas, or in re potestas or dominium, has two principal meanings. It is either a right indefinite in point of user, over a determinate thing: or, generally, jus in rem. In the first sense, it is opposed to servitus; and these form the two divisions of rights availing generally against the world. In the second or larger and vaguer sense, it includes all to which in the first sense it is opposed; all rights not coming within the description of obligatio.

5. I think in English law, unless used vaguely and popularly, the term property is not applied to rights in immovables. We talk of property in a movable thing. By absolute property in a movable thing we mean what the Roman lawyers called dominium or proprietas, they having no distinction between real and personal property. But, in strict law language, the term is not applied to a right or interest in immovables. An estate in fee simple, an estate in tail, an estate for life and so on, but never a property, speaking strictly. An estate in fee-simple corresponds as nearly as may be to absolute property in a personal chattel.

7916. Another strange caprice of language is the following. The term property is applied to some rights in rem over or in persons but not to others. For example, the right of the master in the slave is called dominium in the Roman law and property in the English. The former word seems to have originally been applied exclusively to that right; to have been co-extensive with dominus, and to have extended only by analogy to things strictly so called. But in neither the Roman nor the English law is the analogous right of the father in his son included under the same name. So a man’s right in his own person; it has been called a right of personal security, but never a property in his own person. This is analogous to the capricious application of the term thing. A slave in the Roman law was styled a thing, because he was the subject of a right residing in his master and availing against third parties, and was so far in a position analogous to that of a thing strictly so called. But the Roman lawyers did not call a son (though also in the power of his father and almost as completely subject to him as a slave) a thing: nor did they call the action by which the father might have recovered the son a vindication; which is the name peculiarly applicable to cases in which a right of property or dominium has been violated.

7. Another meaning of the word property is the aggregate of a man’s faculties, rights, or means; called in the Roman law a man’s patrimony: at least that name is given to such part of the aggregate, as descends to his general representatives on his decease, or is applicable to the discharge of his obligations if he be insolvent. It is tantamount to the term estate and effects, or perhaps to the term assets. In this sense it implies rights in personam, or obligations as well as rights of every other class. It is evident that a man’s rights as against determinate persons are just as much applicable to the discharge of his debts, and devolve just as much to his general representatives as his jura in rem.

8. A still more remarkable acceptation is the following. In the largest possible meaning, property means legal rights or faculties of any kind; as when we talk of the institution of property; or of security to property as arising from such and such a form of Government or the like. It is commonly said that Government exists or should exist to institute and protect property. I have demonstrated in a note to my published Lectures, the absurdity of this doctrine.³² But the property 792here spoken of must mean legal rights in the largest sense. It cannot be meant that Government exists or ought to exist for the purpose of creating and protecting rights of dominion in the narrower sense, else it would be implied that it ought not to exist for the purpose of protecting rights arising from contracts and quasi-contracts.

When we speak of a man of property, meaning a wealthy man, we seem chiefly to contemplate the value of his rights in external things, or of the debts due to him; the most conspicuous portion of his rights. Blackstone uses the term in that vague, vulgar, and unscientific sense, in the part of his work where he announces the arrangement of his second book. He there says that the law of things is conversant about rights of property or dominium which he explains to mean the rights which a man may acquire in and to such external things as are connected with his person. He here manifestly means by property and dominium, not property and dominium in their strict, nor in any of their narrow senses, but in this large sense. For, lower down, he includes in the law of things, or the law of property or dominium, not only property in possession, absolute and qualified, or absolute and qualified property divested of possession by wrong, but also whole classes of rights arising directly from contracts or quasi-contracts, which are not rights over things at all, but rights to acts and forbearances to be done and observed by determinate persons. Thus if you contract to sell me a determinate quantity of corn, I have no property or dominion in the thing, but a right to force you to deliver corn according to the terms of the contract. If you have disposed of the subject of the right in the meanwhile to a third party, the property vests in the buyer, not in me. If the property vests in me before delivery, the transaction is not a contract, but compounded of a conveyance and a contract Blackstone, therefore, must here use the word in a totally different sense from that in which he employs it afterwards. In fact, he here means by it a man’s legal rights generally, or his faculties generally.

The same may be said of what, under the head of the rights which he styles absolute rights, he terms the right of private property. What this might be, I could not for a long time make out: but by comparing it with a corresponding passage in his third volume, it was cleared up. I could not persuade myself that it meant nothing. I now find that it does. It is merely a collective name for all those various rights which, either as property in the strict sense, or as rights derived from 793contracts or quasi-contracts, are the subject of his whole Commentaries, and does not stand for a particular right at all.

These are only some of the meanings of this most ambiguous word. It is most difficult to get on with it intelligibly and without endless circumlocution. For the present I mean by property or dominion, every right in and over a thing, which is indefinite in user, as distinguished from servitus. The various modes of dominium or property as thus understood, I shall shew as I proceed.

[beginning of lecture 48]