[930] 

931 

Notes to Table II.

[Note 1.] This arrangement coincides exactly with that which I have given in Table I. But in lieu of the terms which occur in the Institutes of Justinian, in the Excerpts from the Classical Jurists of which his Digests are composed, in the Institutes of Gains, etc., I have here substituted terms which originated in the Middle Ages, or in times still more recent. For the following, amongst other reasons, these terms demand attention.

1. Expositors of the Roman Law often introduce them into their writings without sufficient explanation; without opposing them to the corresponding expressions which were employed by the authors of the system.

2. Writers upon Universal Jurisprudence, upon the so-called Law of Nations, and even upon Morals generally, have often drawn largely from that justly celebrated system; and, in their express or tacit references to it, have commonly adopted the terms devised by modem Civilians, or by Commentators of the Middle Ages.

3. These terms have been imported into the technical language of the systems which are mainly derived from the Roman: e.g. the French Law, the Prussian Law, the Common or General Law of Germany.

4. Some of these terms are better constructed than the corresponding expressions of the Ancients; and are, indeed, the only ones, authorised by general use, which denote the intended meaning without the most perplexing ambiguity.

Trace the Arrangement, which is given in the Table above, through the following places of Heineccius, the most celebrated teacher of the Roman Law in the eighteenth century:—‘Elementa Juris Civilis secundum Ordinem Institutionum’; together with his admirable, though less known ‘Recitationes in Elementa, etc.:’—Lib. i. tit. 1. § 30, 31.—tit. 2. § 74—ii. tit. 1. § 310 in princip. §§ 331 to 334. § 335 in princip.—tit. 3. § 392.—tit. 10. § 484.—iii. tit. 14. § 767, 768, 771, 772, 774, 778.—tit. 28.—iv. tit. 1.—tit. 5.—tit 6.—tit. 18. And see the corresponding places of his ‘Antiquitates,’ in which the Arrangement of the Institutes is also observed.

[Note 2.] ‘Jus Rerum:’ i.e. Law regarding Rights and Obligations in general, together with the Things which are their 932subjects or objects. It stands opposed, on the one side, to Jus Actionum: i.e. Law not regarding substantive rights and obligations, but the means by which they are enforced when a resort to the tribunals is necessary. (See Tables V. VI. note 2.) It stands opposed, on the other side, to Jus Personarum: i.e. Law regarding the distinctive rights and obligations, which arise from (or, rather compose) the various conditions of persons. (See below, note 3, C. b.: And see Table IV. sec. 2.)

It was probably styled Jus Rerum, or Jus quod ad Res pertinet, for one of the following reasons:—

1. Inasmuch as the term Res included rights and obligations, the general law or doctrine of rights and obligations might be styled Jus Rerum, without a solecism. (See Table I. note 5.)

2. The description of the Res, which are subjects of rights and obligations, is placed, in the Institutes, at the beginning of the Jus Rerum: and hence, a name, strictly belonging to a section was naturally extended to the whole department of which that particular section was the prominent and most obvious feature. So the third department embraces the law of Procedure; but as Actions (strictly so called) occupy the foremost place, the whole is denoted by the partial and inadequate name of Jus Actionum.

The arrangement of the Roman Lawyers is liable to objection in the detail, but is manifestly just in the main; though certain modem writers have involved it in thick obscurity, by grossly misconceiving the purpose, and grievously distorting the expressions.

[Note 3.] (L) ‘Jus in Re—Jus in Rem—Jus reale— Dominium sensu latiore:’

These expressions are synonymous. Taken in the largest signification of which they are susceptible, they denote a class of rights which may be defined thus:—Rights of persons against all other persons, or, at least, against other persons generally:—‘Facultas homini competens sine respectu ad certam personam.’ Or these rights may be defined as follows:—Such rights of persons as answer to obligations incumbent upon all other persons, or, at least, upon other persons generally.

‘Jus ad Rem—Jus in Personam—Jus personale—Obligatio:’

Taken in the largest signification of which they are suscept933ible, these synonymous expressions denote a class of rights to which the ensuing definitions will apply:—Rights of persons against determinate persons:—Rights answering to obligations incumbent upon determinate persons:—‘Facultas homini competens in certam personam.’

Rights of the first class, and rights of the second class, are, therefore, distinguishable by this:—The obligations correlating with these, are limited to determinate persons: the duties (or obligations) correlating with those, attach universally or generally.

But though this is the essence of the distinction, they are further distinguishable thus. The duties or obligations which answer to rights of the first class, are, all of them, negative: that is to say, obligations to forbear or abstain. Of those obligations which answer to rights of the second class, some are negative, but some (and most) are positive: that is to say, obligations to do or perform.

(B.) The full exposition of this all-pervading distinction, is necessarily reserved for the Course of Lectures to which these Tables are intended to serve as helps. But, perhaps, the following examples will give the clue to its import.

(a.) Ownership or Property (equivalent to Dominion, taken in its limited senses), is a term of such complex and various meaning, that it were hardly possible to force a just explanation of it into the narrow compass of a note. But in order to illustrate the distinction here in question, Ownership may be described, accurately enough, thus:—The Right to use or deal with some given subject, in a manner, or to an extent, which, though it is not unlimited, is indefinite. In which description is necessarily implied, that the Law will protect or relieve the owner against every disturbance of his right on the part of any other person. To change the expression, all other persons are bound to forbear from acts inconsistent with the scope of his right. But, here, the obligations which correlate with that very right, terminate. Every positive obligation which may regard or concern that right, is nevertheless foreign or extraneous to it, and flows from some incident specially binding the party upon whom the obligation falls: for instance, from a contract into which he enters with the owner of the subject, or a delict which he commits against his right of ownership. In other words, every such positive 934obligation is confined to a determinate person, and is, therefore, an obligation (in the sense of the Roman Lawyers). And even an obligation which is negative and regards the right of ownership, will not correspond to that very right, in case the vinculum be special; that is to say, not attaching indefinitely upon all mankind, but binding some certain person or some certain persons, and arising from some incident which particularly regards the obliged.

It follows that Ownership or Property is Jus in Rem. For ownership is a right of a person, over or to a person or thing, against all other persons:—a right implying and exclusively resting upon obligations which are at once universal and negative.

In case the subject of Jus in Rem happen to be a person, the position of the party entitled wears a double aspect. He has rights (in rem) over or to the subject, as against other persons generally. He has also rights (in personam) against the subject, or lies under obligations (in the narrower meaning of the term) towards the subject.

See below, in the present note, C. b.

(b.) Servitus (for which the English ‘easement’ is hardly an adequate expression) is a right to use or enjoy, in a given or definite manner, a subject owned by another. Take, for instance, a Right of Way over another’s land.

The term is often extended to certain rights, which, properly, are rights of ownership limited in point of duration: e.g. Usus-fructus, Usus, Habitatio. It has also been applied to a right (Superficies), which, justly considered, is a species of Condominium: i.e. a right of ownership over some given subject, but limited by a right, similar and simultaneous, which resides in another person. But as servitudes are frequently distinguished, and by the Roman Lawyers themselves, from the rights which I have just mentioned, I think that authority as well as the reason of the thing, justifies the description above.

Now according to that description, the capital difference between Ownership and Servitus lies in this: that the right of dealing with the subject, which resides in the owner or proprietor, is larger, and indeed, indefinite; whilst that which resides in the party entitled to the servitude, is narrower and determinate. In respect of the grand distinction which here is directly in question, Ownership and Servitus are equivalent. Servitus, like Ownership, is Jus in Rem. For it avails against all mankind, including the owner of the subject. Or (changing the expression) 935it supposes an obligation on all (the owner again included) to forbear from every act which would prevent or hinder the enjoyment. But this is the only obligation which corresponds to the Jus Servitutis: every special obligation which happens to regard it, being nevertheless foreign or extraneous to it. Suppose, for example, that the servitude is constituted (or granted) by the owner or proprietor of the subject: and suppose that the owner or proprietor also contracts with the grantee, not to molest him in the exercise of the right. Now, here, the grantor of the servitude lies under two obligations: one of them arising from the grant, and answering to the right which it creates; the other derived from the contract by which he is specially bound, and answering to the right (in personam) which the contract vests in the grantee. In case he molest the grantee in the exercise of the servitude, the act is single, but the injury is double. He violates an Officium (or duty) which he shares with the rest of mankind, and he also breaks an Obligation which arises from his peculiar position.

(c.) Having given an example or two of Rights in rem, I will now produce examples of Rights in personam.

Rights begotten by Contracts (or, ascending to a larger expression, by Pacts or Conventions), belong, all of them, to this last-mentioned class: although there are certain cases (incapable of explanation here), in which the right of ownership, and others of the same kind, are said (by a solecism) to arise from contracts, or are even talked of (with conspicuous and flagrant absurdity) as if they arose from obligations in the sense of the Roman lawyers.

Rights which, properly speaking, arise from contracts, avail against the parties who bind themselves by contract, and also against the parties who are said to represent their persons: that is to say, who succeed, on certain events, to the universitas (or bulk) of their rights, and, therefore, to their faculties (or means) of fulfilling or liquidating their obligations. But as against persons who neither oblige themselves by contract, nor succeed per universitatem to the means of performing obligations, rights which, properly speaking, arise from Contracts, are nothing. Suppose, for example, that you contract with me to deliver me some movable (a slave, a horse, a garment, or what not); but, instead of delivering it to me, in pursuance of the contract, that you sell and deliver it to another. Now, here, the rights which I acquire by virtue of the Contract or Agreement are the follow936ing. I have a right to the movable in question, as against you specially: jus ad rem (acquirendam). So long as the ownership and the possession continue to reside in you, I can force you to deliver me the thing in specific performance of your agreement, or, at least, to make me satisfaction, in case you detain it. After the delivery to the buyer, I can compel you to make me satisfaction for your breach of the contract with me. But here my rights end. As against strangers to that contract, I have no right whatever to the movable in question. And, by consequence, I can neither compel the buyer to yield it to me, nor force him to make me satisfaction as detaining a thing of mine. For ‘obligationum substantia non in eo consistit ut aliquod nostrum faciat, sed ut alium nobis obstringat ad dandum aliquid, vel faciendum, vel præstandum.’ (See the admirable Title in the Digests, ‘De Obligationibus et Actionibus,’ xliv. 7.) But if you deliver the movable, in pursuance of your agreement with me, my position towards other persons generally assumes a different aspect. In consequence of the Delivery by you and the concurring Apprehension by me, the thing becomes mine: for the Delivery and Apprehension are a Modus Acquisitionis, and not, like the Contract of which they are a consequence, a Titulus ad acquirendum. I have now jus in rem:—a right to the thing delivered, as against all mankind: a right answering to obligations negative and universal. And, by consequence, I can compel the restitution of the subject from any who may take and detain it, or can force him to make me satisfaction as for an injury to my right of ownership.—Ubi rem meam invenio, ibi eam vindico; sive cum eâ personâ negotium mihi fuerit, sive non fuerit. Contra, si a bibliopolâ librum emi, isque eum nondum mihi traditum vendiderit iterum Sempronio, ego sane contra Sempronium agere nequeo; quia cum eo nullum mihi unquam intercessit negotium: sed agere debeo adversus bibliopolam a quo emi; quia ago ex contractu, i.e. ex jura ad rem.’—Heineccii Recitationes, lib. ii. tit. I. § 331.

(d.) Rights of Action, with all other rights founded upon injuries, are also jura in personam. For they answer to obligations attaching upon the deteminate persons, from whom the injuries have proceeded, or from whom they are apprehended.

It is true that difficulties have arisen about the nature of Actions in rem; i.e. those Actions (or, rather, those Rights of Action) of which the ground is an offence against a right in rem, and of which the intention (scope, or purpose) is the restitution 937of the injured party to the exercise of the violated right. But these and other difficulties besetting the Theory of Actions, appear to have sprung from this: that the nature of the right which is affected by the injury, and the nature of the remedy which is the purpose of the action, are frequently blended and compounded by expositors of the Roman Law. Which confusion of ideas absolutely disparate and distinct, seems to have arisen from the abridged shape of the expressions by which rights of action are commonly denoted. By an ellipsis commodious and inviting, but leading to confusion and obscurity, a name or phrase applicable to the violated right, is often extended improperly to the remedy. Thus, the phrase ‘in rem’ is extended to certain actions, which, though they are necessarily directed against determinate persons, are grounded upon violations of rights availing against all mankind. And, thus, certain actions are styled ‘ex contractu,’ although they properly arise from the non-performance of contracts, and are only remote and incidental consequences of the contracts themselves.

To pursue this subject further were inconsistent with my present purpose. But before I dismiss it, I will advert to an important remark made (I think) by Leibnitz—Every right to restitution is a right in personam. In case the party against whom it avails be unconscious of the right, the right, with the corresponding obligation, is (quasi) ex contractu. For, since he is perfectly clear of intention and negligence, he is also innocent of wrong. But so soon as he is apprised of the right, either by demand or otherwise, it passes from the department (quasi) ex contractu to the class of rights and obligations which properly are founded upon injuries.

(C.) Hitherto I have tried to illustrate the distinction which is the subject of the present note, by apt examples. A brief examination of the terms by which it is usually expressed, may cast a stronger light upon the import of that distinction, and upon the importance of seizing its import in a precise and comprehensive manner.

(a.) Jus in re—Jus in rem—Jus reale—Dominium (in the large signification), will, none of them, indicate the distinction, considered in its whole extent, without a degree of ambiguity. For though they denote (when taken in the largest meaning of which they are susceptible) every right availing universally or generally, they are commonly used by the Roman Lawyers, or by succeeding Civilians, for the purpose of signifying rights over 938or to Things: that is to say, Things in the narrower acceptation: permanent objects which are not persons: things which, on the one hand, are opposed to persons themselves; and which, on the other, are distinguished from the acts of persons, and from the rest of the transient objects denominated facts or events.

But of jura quæ valent in alios generatim—of rights which avail or obtain against other persons generally—of rights which answer to obligations general and negative, some are rights over or to persons, and some have no subject (person or thing).

The terms now under consideration are, therefore, of varying extension. They are generic and specific. They sometimes denote universally the department of rights in question, but are commonly used in a narrower signification, and restricted to a subordinate class. Consequently, there is no concise expression, authorised by established use, which denotes the whole of these rights adequately and unambiguously.

(b.) Of rights existing over or to persons, and availing against other persons generally, take the following examples:—The right of the father to the custody and education of the child—the right of the guardian to the custody and education of the ward—the right of the master to the services of the slave or servant.

Against the child or ward, and against the slave or servant, these rights are rights in personam: that is to say, rights answering to obligations upon those determinate individuals. In case the child or ward desert the father or guardian, or refuse the lessons of the teacher whom the father or guardian has appointed, the father or guardian may compel him to return, and may punish him with due moderation for his laziness or perverseness. If the slave run from his work, the master may force him back, and drive him to his work by chastisement. If the servant abandon his service before its due expiration, the master may sue him for breach of the contract of hiring, or for breach of an obligation (quasi ex contractu) implied in the status of servant.

Considered under another aspect, these rights are of another character, and belong to another class. Considered under that aspect, they avail or obtain against other persons generally, and the obligations (or, rather, the officia) to which they correspond, are invariably negative. As against other persons generally, they are not so much rights to the custody and education of the child, to the custody and education of the ward, and to the services of the slave or servant, as rights to the exercise of such rights without molestation by strangers. As against strangers, their substance 939consists of duties, incumbent upon strangers, to forbear or abstain from acts inconsistent with their scope or purpose. In case the child (or ward) be detained from the father (or guardian), the latter can recover him from the stranger by a proceeding in a Court of Justice, which, let it be named as it may, is substantially an action in rem: that is to say, an action grounded on an injury to a right which avails generally, and seeking the restitution of the injured party to the exercise of that violated right. In case the child be beaten or otherwise harmed injuriously, the father has an action against the wrongdoer for the wrong to his interest in the child. In case the slave be detained from his master’s service, the master can recover him in specie (or his value in the shape of damages) from the stranger who wrongfully detains him. In case the slave be harmed and rendered unfit for his work, the master is entitled to satisfaction for the injury to his right of ownership. If the servant be seduced from his service, the master can sue the servant for breach of contract; and also the instigator of the desertion, for the wrong to his interest in the servant. In case the servant be harmed and disabled from rendering his service, the harm is an injury to the master’s interest in the servant, as well as to the person of the latter.

The correlating conditions or status of husband and wife, will also illustrate that capital distinction which it is the purpose of the present note to explain or suggest.

Between themselves, they have mutual rights in personam, and are subject to corresponding obligations. Moreover, each has rights to the other availing against the rest of the world, and answering to duties, which, invariably, are negative. Adultery by the wife violates a right of the first class, and entitles the husband, against the wife, to a divorce a mensâ et thoro. Adultery with the wife violates a right of the second class, and gives him an action for damages, against the adulterer.

A right or interest to or in a person, and a right or interest to or in a thing, differ in this: that the subject of the former belongs to the class of persons, whilst that of the latter is a thing, in the narrower acceptation of the term. (See above, in the present note, C. a.) With reference to the capital distinction which is the matter of the present note, these rights are precisely equivalent. Each is a right availing universally or generally, and implying or composed of obligations, incumbent upon the world at large, to forbear from such positive acts as would defeat or 940thwart its purpose. The rights (in personam deteminatam) and the obligations (stricto sensu), which invariably concur with the former, are nevertheless distinct from it; just as a like obligation, which may concern or regard the latter, is nevertheless extraneous to it. (See above, in the present note, B. a. b.)

But though these rights are thus equivalent or identical, certain writers have marked and distinguished the former by a peculiar name.

A right or interest to or in a person, has been styled, in German, ‘dinglich-persönliches Recht:’ ‘persönliches Recht auf dingliche Art:’ ‘persönliches Recht von dinglicher Beschaffenheit:’ ‘Recht auf eine Person als auf eine Sache:’ In modern Latin, ‘jus realiter personale.’ Each of which expressions may be rendered into English by this: ‘A right or interest to or in a person as if that person were a thing.’

The author of this innovation upon the established language of the science was Kant. See his ‘Metaphysische Anfangsgründe der Rechtslehre’—‘Metaphysical Principles of the Science of Law:’ A treatise darkened by a philosophy which, I own, is my aversion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with a distinctness and precision which are marvellous, considering the scantiness of his means. For, of positive systems of law he had scarcely the slightest tincture; and the knowledge of the principles of jurisprudence which he borrowed from other writers, was drawn, for the most part, from the muddiest sources: from books about the fustian which is styled the Law of Nature.

But though this novelty comes from an imposing quarter, and has even been adopted by lawyers of consummate acuteness and learning, I venture to pronounce it needless, and pregnant with perplexity and error.

‘In Rem’ (—a phrase purely classical, barbarous and uncouth as it may look) would obviate the fancied necessity for these newfangled expressions, supposing it were used in a manner which analogy justifies or commands. The phrase is nowhere employed by the Roman Lawyers themselves, for the purpose of signifying briefly, and withal adequately and unambiguously, the entire class of rights which avail against the world at large. But if it were applied by us to this most important purpose, in a manner analogous to the modes in which it was applied by them, it would accomplish the purpose perfectly. Thus applied, it would denote the compass of 941a right, and not the nature of its subject. It would indicate that the right in question availed against other persons generally, without denoting also that its subject was a thing. It would apply to rights over persons, as well as to rights over things, without the shadow of a solecism. [See below, in the present note, C. d. 8.] Consequently, the newfangled expression, ‘jus realiter personale,’ with others of the like intention, are needless. ‘Jus in rem,’ taken in the large signification which analogy justifies, would point with perfect precision at the generic property of the right. And in case it were necessary to indicate ‘that its subject was a person,’ this, its specific property, might be adjected briefly and easily, by a slight qualification of the term: E.g. ‘jus in rem over (or to) a person.’

Nor are these ungainly expressions merely needless. Those amongst them which are not some yard in length, and which are properly names rather than definitions or descriptions, are ambiguous as well as needless. According to the intention of their author, and of those who have adopted them, they should suggest to the hearer or reader, the extensive compass of the rights which they are used to denote. They ought to indicate that these rights are not of the class which avail against deteminate persons: that though their subjects are persons, they avail against the world at large as if they were rights over things. Now, according to established usage the term personale (or persönliches) intimates the reverse: jus personale commonly signifying rights which obtain against persons certain. Consequently, the expressions now in question defeat their own end, by suggesting the very notion which it is their purpose to exclude. Nor is this inconvenience obviated by the adverb realiter (or dinglich), which is adjected to the term personale for the purpose of qualifying its import. To a mind exclusively conversant with the established language, ‘jus realiter personale’ (or ‘dinglich-persönliches Recht’) would probably suggest a species of jus personale, though not the entire class. Instead of suggesting, as it should, jus in rem over a person, it would probably seem to indicate that sort of jus in personam which is usually denoted by the expression jus ad rem (acquirendam), and to which that significant expression ought to be confined. In other words, it would probably seem to indicate those rights in personam, which imply and consist of obligations ‘ad dandum aliquid:’ that is to say, obligations to deliver a thing (or to pass a right in rem) at the instance and appointment of the obligee. [See above, in the present note, B. c.; and below, note 4.]

942Before I pass from the subject directly under consideration, I will offer a few remarks which it naturally suggests; and for which the present place is the least inconvenient that I can find, though they are rather digressive from the general subject of the Note.

Rights or Interests over or in Persons, with the general and special obligations which those rights or interests imply, fall wider the department of Law denominated Jus Personarum. They flow from those Differences of persons (styled Conditions or Status), which are the basis of the Division of persons, or of the Distribution of persons into classes. Or (speaking more accurately) these rights and obligations are ingredients or constituent parts entering into the composition of those differences.

For the various conditions (or status) of various persons, are not the sources of differences in their rights, obligations and capacities (—‘qualitates quarum ratione diverso jure utuntur’) but are constituted or formed of those very differences.

A given person bears a given condition (or, changing the expression, belongs to a given class), by virtue of distinctive rights, capacities, and duties—by a want of certain rights, and of capacities to take those rights—or by exemptions from certain obligations. In other words, these rights, capacities, and duties, or these incapacities and exemptions, are considered as forming or composing a single though complex being, and are bound into that complex One by the collective name ‘condition.’

His condition is not the source of his distinctive rights and obligations, for these are his condition, or, at least, constituent parts of it. Their source (—‘id cujus ratione diverso jure utitur’) is the fact, event, or incident, which invests him with the condition; that is to say, gives him the rights and capacities, and subjects him to the duties and incapacities, of which the condition is composed, or for which that word is a name. For example, the barrister or the attorney is distinguished from other men, by peculiar obligations which are imposed upon him, and by peculiar rights which he enjoys. These peculiar obligations, with these peculiar rights, compose or are the Condition of Barrister or Attorney. The source or cause of his condition, or of his distinctive obligations and rights, is his Call to the Bar, or his Admission as an Attorney.

The notion of status or condition (as understood by the Roman Lawyers), has been covered with thick darkness by the vague talk of their successors, and is not entirely free from difficulty and doubt. But I think that the plain account of 943it, which I have given above, will be found to tally with the truth, or to approach it pretty closely, by those who will take the trouble (trouble too seldom taken) of seeking, inspecting, and collating the original and proper authorities.

See and compare the following places:—Gaii Comm. i. §§ 8, 9, 13, 67, 80, 81, 128, 159, 162.—Inst. i. 3, § 4.—i. 5, § 3.—i. 16, § 4.—i. 22, § 4.—ii. 11, § 5.—ii. 17, §§ 1, 4, 6.—Dig. i. 5 (De statu hominum), l. 5, pr. ll. 9, 21, 26, sub fine.—i. 9. (De Senatoribus), l. 10.—iv. 5 (De capite minutis), l. 3, § 1, l. 11.

To fix the notion of Status with perfect exactness, seems to be impossible. For there are certain sets or series of rights and obligations, which would probably be considered by one man as forming or composing Status, though another would rather refer them to the Jus Rerum: i.e. the Law (or Doctrine) of Rights and Obligations in general, or of Rights and Obligations abstracted or apart from conditions. [See above, note 2: and also Table IV. Sec. 2.]

The matter is full of embarrassment, and I presume to touch it with no small hesitation. But still I will venture to suggest, that the following properties or marks are, perhaps, the test of a Condition: that is, may serve to distinguish Conditions properly so called, from Rights, Obligations, and Capacities to which the name is inapplicable.

1. The duties or obligations, which are constituent parts of conditions, or which correspond to rights entering into the composition of conditions, are general or indeterminate: that is to say, obligations to acts or forbearances indefinite in respect of number.

For example, If you hire another as your servant, two conditions (those of master and servant), are created by the contract. For each incurs obligations and each requires rights, of which the objects are not determined indivdually, although their kinds may be fixed. You are obliged to feed him, etc., so long as the contract shall continue; and he is obliged to render a series of services, which are equally indefinite as to number.

But if you hire another to do some single service (as to go on a given errand), the conditions of master and servant are not created by the contract: nor, even in popular and vague language, would he be called your servant, or you his master. And a like remark will apply to every legal relation, which consists of a right, or an obligation, to a determinate act or forbearance. No one ascribes a status to Buyer or Seller, etc.

9442. The duties or obligations, which are constituent parts of conditions, or which correspond to rights entering into the composition of conditions, are also indeterminate in this: that the acts or forbearances which are their objects, are indefinite with respect to kind.

If you hire another as your servant, the kinds of services which he undertakes to render, are just as undetermined as the single or individual services to which the contract binds him. Consequently, you are master, and he is servant; or you and he are severally clothed with the conditions which are denoted by those names.

But if you engaged another to render services of a class (as to supply your family with bread, to shoe your horses, or the like), you and he would hardly be clothed with conditions by virtue of that contract. And the same remark will apply to the relation of Landlord and Tenant, of Principal and Factor, of Grantor and Grantee of an Annuity, etc. For in all these cases, the services to be rendered by the parties, are fixed or circumscribed as to kind, although the acts or forbearances to which they are bound are not determined as to number.

In short, Rights, Duties, Capacities, or Incapacities, can hardly be said to constitute a Status or Condition, unless they impart to the person a conspicuous character: unless they run through his position in a continued vein or stratum: unless they tinge the whole of his legal being with a distinctive and obvious colour.—All which talk is certainly a tissue of metaphors, and therefore little better than sheer trumpery. But such are the difficulties sticking to the matter in question, that I am tempted at every instant to flee from the toilsome analysis, and take to the ready refuge of ignorant or perplexed interpreters.

For instance: Whether the circumstances which I have mentioned as the second mark of a condition, be indeed such a mark, seems to admit of doubt.

There certainly are many Status in which it occurs, and of which it is a prominent and striking feature: e.g. those of Husband and Wife, Parent and Child, Guardian and Ward, Master and Slave, Alien, Insolvent, Magistrate, etc. In all which cases, the distinctive duties of the parties, or the duties which correspond to their distinctive rights, oblige to acts and forbearances indefinite in respect of kind. Instead of being confined or circumscribed by a well-determined description, these acts and forbearances run indistinctly through numerous and disparate classes.

945But I think I might talk, without impropriety, of the Condition of an Agricultural Servant: And yet the rights and duties of the master and servant are, here, of a definite character.

The Right, Interest, or Estate, which a man may have in a Dignity, presents a similar difficulty. The scope or purpose of the right is to bear a Title of Honour; and to get therewith the admiration or deference which that distinctive and honorary mark may extract from the rest of the world. Consequently, the duties which correspond to the right, are simply and exactly circumscribed. They are merely obligations, incumbent upon other persons generally, to abstain from all such acts as might cast a slur upon the right: E.g. disputing the title of the party to wear the honorary badge; or treating the badge itself irreverently, to the possible damage of the worth which it derives from current opinion.

But yet I imagine, that a person invested with a Dignity, is also invested, by virtue of the Dignity, with a Status or Condition: and that in an Arrangement of Law founded upon just principles, this his distinctive right, together with the corresponding duties, would be detached from General Law (or Jus Rerum), and inserted in Special Law (or Jus Personarum). [See above, note 2, and also Table IV. Sec. 2.]

It is scarcely necessary to remark, that I have here been speaking of a Dignity considered simply or by himself. The status or conditions constituted by rights of the sort, are absolutely distinct from the political or public status, which not unfrequently concur with them in the same individuals. The political powers of an English Peer, might be precisely what they are, although he were not distinguished by a single honorary title. And a right to a Dignity (as to that of Baronet, for instance), is frequently unconnected with a political or public character.

3. Certain Conditions are purely or mostly onerous.—Such is the Condition of the Slave: to whom the Law refuses rights, or deals them with a niggard hand. According to the Roman Law (down to the age of the Antonines), the slave had ‘nullum caput;’ was ‘res:’ that is to say, he was the subject of rights residing in his master; lay under obligations towards his master and others; but enjoyed not a particle of right against a single creature. As the subject of another’s rights, he was susceptible of damage; but he was not susceptible of injury.—According to the same system (in its earlier and ruder state), the Son in potestate, and the Wife in manu, were also ‘res,’ in respect of the Father 946and Husband; although they had ‘caput,’ or were invested with rights, in respect of third persons.

Now to talk of a right or interest in a purely onerous condition, were to talk absurdly. But so far as a condition is lucrative, or consists of rights and advantages, we may imagine an interest in the condition, considered as a complex whole: considered as ‘juris universitas:’ considered without reference to the single and separate rights, which are component or constituent parts of it. And this, I incline to think, is a mark of every status not purely onerous: although there are certain aggregates, or universities of rights, to which the name of status is inapplicable. In other words, though every juris universitas is not a condition, every condition, so far as it consists of rights, is juris universitas.

Accordingly, the party has a right in his condition, analogous to ownership in a single or individual thing: jus in rem: a right or interest, which avails against the world at large (although the several rights, which are ingredients in his condition, be rights in personam merely).

Consequently, wrongs against this right are analogous to wrongs against ownership: And, according to the practice of the Roman Law, wrongs of both classes are redressed by analogous remedies.

Where the individual thing is unlawfully detained from the owner, he vindicates or recovers the thing by an action in rem. Where the right in the condition is wrongfully disputed, the party asserts his rights by a peculiar and appropriate action, ‘quæ in rem esse videtur.’

According to the practice of the English Law, controversies touching conditions, and other juris universitates, are commonly decided or tried in an indirect or incidental manner. Some particular right, parcel of the complex whole, is the immediate object of the proceeding; and the more comprehensive question is handled in the course of this proceeding, obliquely, or by way of episode. For example, The interest of the Assignees in the Estate and Effects of the Bankrupt (or, changing the expression, in the aggregate or university of his rights), is frequently impugned and asserted in an action of assumpsit or trover. And, thus, a question of legitimacy (precisely a question de statu), is not uncommonly agitated in an action of ejectment or trespass.

For these reasons, juris universitates, or rights in aggregates of rights, stand out sharply in the Roman law, and are marked with comparative indistinctness in the English. But rights of the sort are not the less known to the latter. They are, in truth, 947essential or necessary parts in every possible system of rights and obligations. And, if I were not limited with respect to space and time, I could mention certain proceedings, before certain of the English Courts, wherein rights of the sort are brought directly in question: wherein the complex whole, abstracted from its component parts, is the immediate object of the controversy.

The wrongs, against rights in conditions, to which I have just adverted, are analogous to dispossession or detention, in the case of dominion or ownership. But a right in a condition, like ownership in an individual thing, is also obnoxious to offences which differ from dispossession: by which the enjoyment of the right is not usurped; by which the title of the party is not impugned; but by which the right is nevertheless annihilated, or its value diminished or endangered. E.g. To wound or beat the Child, is an offence against the Condition of the Father. For the mass of the rights and advantages which accrue to the father from his fatherhood, is thereby put in jeopardy, or positively lessened in worth.—To slay the Husband and Father, is not only a crime punishable on the part of the community, but is also a civil injury to the Conditions of the Wife and Child. For the sum of the rights and advantages arising from their relation to the deceased, is annihilated or diminished by the act. According to the notions and the practice which have obtained in modem times, the civil injury merges in the crime. But still it is easy to imagine, that the Law might impose upon the criminal a twofold obligation: an obligation to suffer punishment, on the part of the community at large; and a further obligation to satisfy the parties, whose interest in the deceased he has destroyed. Before the abolition of Appeals, this was nearly the case in the Law of England. The murderer was obnoxious to punishment, properly so called; and, in case that punishment were not inflicted, the wife and the heir of the slain were entitled to vindictive satisfaction, which they exacted or remitted at their pleasure.—If I slander your servant, and you turn him off in consequence, I wrong your servant in his condition. I debar him from that aggregate of contingent advantages, which his stay in your service might have given him.—To slander the skill of a surgeon, or to question without cause the solvency of a trader, are wrongs of the same sort. They are not violations of rights to individual subjects or objects, but are offences against conditions. They tend to abridge the sum of those future and indeterminate advantages, which the surgeon may derive from his calling, or the trader from his trade.

948In short, of the several properties or marks which may be found in every status, the following would seem to be one:—Every status, so far as it consists of rights, is ‘juris universitas.’ Therefore, as an aggregate of rights, and abstracted from its component parts, it is the subject of a right in rem which is analogous to the right of ownership. Therefore, each of these rights is obnoxious to wrongs, which are also analogous. Therefore, whatever may be the practice of this or that system, offences against ownership, and offences against rights in conditions, admit of analogous remedies.

In conditions which are purely onerous, or consist of obligations only, this mark is not to be found. But conditions of that sort commonly correlate with others in which the mark occurs. The condition of slave, for instance, is implied in the condition of master: and when I consider the latter, I necessarily consider the former. Consequently, if the mark in question belongs to lucrative conditions, it is also indirectly, a mark of onerous conditions.

4. Single persons, or persons determined singly, may be marked or distinguished by peculiar rights and capacities, or peculiar duties and incapacities. For example, The Legislature may grant to an individual, or to a corporate body, the monopoly of some commodity: laying on that individual, or on that artificial person, peculiar obligations with respect to the manufacture or import.

By the Roman Lawyers, and by modern expositors of the system, rights and obligations of the sort are often denominated singular: oftener, and less and ambiguously, privilegia.

Now certain of these privilegia have many of the marks of conditions, but yet are distinguished from conditions. They are not styled conditions, nor are they inserted in ‘The Law of Persons:’ the department of the Corpus Juris which is occupied with the description of conditions; and which would be named more appositely, if it were called ‘The Law of Status.’

Nor is this exclusion capricious. All privileges are peculiar or distinctive; and some of them have other marks, which are also found in conditions. But though conditions are peculiar, still they are common or general, as contra-distinguished from singular: Privileges are peculiar and singular. Conditions distinguish persons, considered as members of Classes: Privileges distinguish persons considered singly or individually. The distinctive rights and duties of Fathers, Wives, and Infants, constitute conditions: Distinctive rights or duties limited to 949Sempronius or Styles, are not a condition. At least, they are not a condition fit for the Law of Persons.

For the Law of Persons or Status (and the Corpus Juris in general), ought to be occupied with matters of wide and lasting concern. It should no more stoop to the description of these singularities or anomalies, than the law or Doctrine of Contracts should attempt to anticipate the peculiarities which distinguish contracts individually.

Privileges are matter for a peculiar department belonging to Jus Rerum. For, in this peculiar department, they should not be described singly, but considered generally. It should merely determine the principles which regulate privileges as a class.

In truth, the Statutes, or Customs, which create or establish privileges, can hardly be ranked with Laws. They are mere anomalies: exorbitant or irregular commands proceeding from the Legislature; or, what in effect is exactly the same thing, eccentric customs tacitly sanctioned by the Legislature. They are not so much analogous to laws or rules of law, as to titles, or investitive events. And, accordingly, most of them must be proved by the parties who are interested in sustaining them, before the Courts of Justice can know or notice their existence.

Consequently, one mark of Conditions is this: A Condition or Status is common to persons of a class, and is not restricted to persons singly or individually determined.

But this, like most propositions, must be qualified. There are certain powers or rights and also certain duties, which are properly ranked with conditions and inserted in the Law of Persons, although they are limited to single men or to single bodies of men. The principle which suggests the exclusion of singular rights and obligations, points at the propriety of admitting them in these excepted cases. For the powers and duties in question are of wide and lasting concern: And if they were not inserted in the Corpus Juris, this would be little better than a fragment and a riddle. Such are the powers of the Sovereign, where the Sovereign is One. And such are the rights and duties of certain magistrates or companies, who though they are single persons, natural or artificial, are clothed with functions which deeply concern the general, and run in a continued vein through the mass or aggregate of the law.

5. It appears from the last section, that a Condition or Status is common to persons of a class. To which I will add (superfluous as the addition may seem), that no Condition or Status extends to persons indiscriminately. The rights or duties 950which constitute a Condition, reside exclusively in persons of a given description; though many of the duties or rights to which they correspond, may reside in persons generally, or even in all persons.

This is a truism. But, like all other truisms, it is prone to slip from the memory. If the excellent Sir Matthew Hale had looked to it steadily, and had stayed to ask the meaning of ‘Jus Personarum,’ it is certain that he would not have fallen into an extremely gross error which deforms his Analysis of the Law. (See post, in Tables VII. and VIII., the Arrangement proposed by Hale, and adopted by Blackstone.) Under the title ‘The Rights of Persons’ (meaning ‘The Law of Persons’), they have placed the right to liberty; the right to bodily security: the right to reputation; with the rest of certain rights which they are pleased to style absolute: Rights which, nevertheless, belong pre-eminently and conspicuously to ‘The Law of Things:’ which of all imaginable rights are precisely the most general: which, in every region on earth, reside in every person to whom the Sovereign or State extends a particle of protection. Such, at least, is the case with the right to bodily security, and also with the right to liberty: i.e. the right of exercising, without molestation from others, that liberty of doing or forbearing which is conceded by the Law. And such is the case, nearly, with all the rest of the rights, which, under the name of absolute, they have foisted into the Law of Persons. All of them are rights residing in all persons, or, at least, in persons generally.

To speak plain English, they either forgot to ask, or they considered slightly and superficially, the following obvious questions—What is a Status or Condition? What are the fit contents of that department of the Law which is styled by the Roman Lawyers, or, rather, by their followers, Jus Personarum?

The terms which Hale employs, and which Blackstone copies, shew, without more, that such was the fact. How does the title ‘Rights of Persons’ apply to the department in question more than to another? The Rights and Obligations of Persons are the subjects of all Law; and all the various departments into which it is divided, equally concern such rights. What would be thought of a treatise on the various races of mankind which should distinguish White Men or Black Men by the simple appellative ‘Men’?

Nor can we impute this absurdity to the Roman Lawyers, and suppose that Hale and Blackstone were blinded by their example. For they nowhere style this department ‘The Rights 951of Persons.’ In two or three passages which lie at the threshold of their Institutes, and in which a stranger to their system naturally sticks and is ensnared, they do, indeed, call it ‘The Law of Persons,’ or ‘The Law which concerns Persons.’ And here, I admit, they have fallen into nonsense which is scarcely less gross than the other. But their usual names for the department are these: ‘Divisio Personarum’—‘De Conditione Hominum’—‘De Statu Hominum’—‘De Personarum Statu:’ Names not inapposite, and intimating clearly enough the general scope of their Arrangement.

Nor is the opposite department styled by the Roman Lawyers ‘The Rights of Things:’ a title which, taken literally, ascribes rights to rights, and to things, acts, and forbearances, as subjects and objects of rights. Their name was not absurd, although it was wretchedly obscure. It was obscure in consequence of its ambiguity, and in consequence of its elliptical shape. For as ‘res,’ in one of its senses, signifies things, ‘Jus Rerum’ (or ‘Jus quod ad Res pertinet’) will hardly suggest to a novice surely and readily, the meaning which was really intended: namely, The Law of Rights and Obligations (abstracted from Conditions.) And though the term ‘res’ signifies rights and obligations, still the elliptical expression ‘Jus Rerum’ drops the characteristic of the department in question: namely, that it relates to Rights and Obligations abstracted from Conditions, and is thereby distinguished from ‘Jus Personarum,’ or the department which treats of Conditions.

Before I conclude this digression, which has run to unconscionable length, I will yet venture a remark—The contents of the great departments ‘jus personarum et rerum,’ are perfectly distinct in general, but cross or blend occasionally. The line of demarcation by which the departments are severed has never been observed, nor should it be observed, with inflexible rigour. The principles or grounds of Method are subordinate to the ends of Method.

I have stated, a little above, that certain rights and obligations, which, strictly, are not conditions, should yet be ranked with conditions, and placed in the Law of Persons. I may now add, that certain rights and obligations which, properly, constitute conditions, are placed with propriety in the Law of Things.

This is remarkably the case with the rights and obligations of those who are styled the general representatives of testators or intestates, or are said to represent their persons: that is to 952say, who succeed per universitatem, to their rights and duties, or, at least, to their rights or duties of a given description or class. Such is the heir, whether testamentary or legitimate, of the Roman Law. Such are the executor or administrator and the next of kin, in the Law of England. And such (I may add) is the English heir, with the general or particular devisee. As opposed to the executor, etc., the heir or devisee has been esteemed a singular successor. But it were perfectly easy to demonstrate that he is ‘successor universalis,’ or a general representative of the deceased. For he succeeds universally or generally to rights and duties of a class, or, at least, to duties of a class.

Now I think you would hunt in vain for a single property or mark, whereby the rights and duties of such universal successors can be distinguished from the purest of the Conditions which are placed in the Law of Persons. And, accordingly, Sir Matthew Hale, in his Analysis of the Law, has posted in that department the relation of Ancestor and Heir: i.e. the status or condition of the latter.

And yet these rights and duties have never been styled conditions, and are placed by general consent in the Law of Things. The reason of which seeming anomaly I take to be this.

By dividing the aggregate of the law into ‘jus personarum et rerum,’ two important ends are or may be attained: brevity and distinctness. Rights and duties in general (—all that can be said about them apart from conditions), are severed or abstracted from the distinctive rights and duties of which conditions are composed. Hence rights and duties in general are described once for all. And, hence, the march of these general descriptions is comparatively clear and easy: being freed from the numerous restrictions, extensions, and explanations with which we must take these descriptions, when we look at the matter of conditions. (See Table IV. Sec. 2.)

But in case the rights and duties of these general representatives or successors were ranked with status or conditions, the two important ends, which are attained by the division, would be thwarted rather than advanced. For the special matter in question is inseparably connected and interlaced with the general scheme or system of rights and obligations. In order to the explanation of the last, the former must be expounded with it. Consequently, an attempt to treat the former apart from the other, would lead to repetition and obscurity. Such is the intrinsic connection subsisting between the two, that they must be considered jointly in spite of the attempt to sever them. And 953the title assigned to the former in the Law of Persons, were, therefore, a mere excrescence without an intelligible purpose.

The questions which I have laboured to elucidate in this long and wearisome digression, are probably the most difficult which the science of jurisprudence presents. Beyond a doubt they rank with the most important. For every attempt to digest the aggregate of the law, or to compose a treatise or commentary embracing the same subject, ought to be preceded by a perspicuous notion of the leading distinctions and divisions. On the degree of precision and justness with which these are conceived and predetermined the merit and success of the attempt will mainly depend. Errors or defects in the details are readily extirped or supplied. Errors in the general design infect the entire system, and are absolutely incurable.

But of all distinctions and divisions, the most comprehensive are these:—The distinction between Conditions, and the Rights, Obligations, and Capacities which are not Conditions;—The division of Law into general and special, or Law of Things and Law of Persons.

To fix that distinction firmly, and to draw an intelligible line between those two departments, were to cleanse the science from much of the confusion and jargon by which it is obscured and disgraced. And if the few desultory remarks which I have ventured to throw out, should turn the attention of the reflecting to these weighty and perplexing problems, I shall feel myself more than repaid for the labour which they have cost me, crude and defective as they are.

(c.) It is said in a preceding section (C. a.), ‘that of rights which avail or obtain against other persons generally, some are rights over or to persons, and some have no subject (person or thing).’ Examples of the former have been given in the last section (C. b.). I will now produce, as briefly as I can, a few instances of the latter.

1. The right to reputation.—The scope or end of this right, is the esteem or goodwill of the public; of that indeterminate number of indeterminate persons, by whom the person in question may happen to be known. And here, it is manifest, there is not the shadow of a subject, over which the right can be exercised, or in which it can be said to inhere or exist. It is merely a right to that mass of contingent enjoyments, which the person may chance to derive from general approbation and 954sympathy. And yet this is a right which avails against the world at large: every false imputation thrown upon the person in question being a delict or injury affecting or committed against it.

2. A monopoly: or the right of vending exclusively commodities of a given class.—This is a right which illustrates in a striking manner the nature of jus in rem. Here, the generic character of the right stands alone. There is not a single circumstance to draw the attention from it. There is no determinate subject (person or thing), over which the right is exercised, or in which it can be said to exist. Nor is it a right to sell commodities of the class. For that is a right which the party would enjoy without the monopoly. The right consists in the duty, which is imposed upon other persons generally, to forbear from all such acts as would defeat or thwart its purpose: namely, from selling commodities of the class.

3. Certain of those rights which are styled in the English Law franchises: as, for instance, right of exercising jurisdiction in a given territory, or a right of levying a toll at a bridge or ferry.—In each of these cases the law empowers the party to do certain acts, and lays a negative obligation upon other persons generally to forbear from disturbing the exercise. But the acts are not exercised over a determinate subject. And this peculiarity distinguishes the interest of the party from an interest in a person or thing; as, for instance, property in a slave—the interest of the father or guardian in the child or ward—ownership or servitus in or over a field.

It is scarcely necessary to add, that the rights in personam, which concur with the rights in question, are perfectly distinct from the latter. Those who reside within my territory are bound to bring their plaints into my court. Those who traverse my bridge or ferry are bound to pay me a toll. But these are positive obligations, specially attaching upon persons who stand in peculiar positions. They are broadly distinguished from the general or negative duties, of which my right, considered as jus im rem, is constituted or composed: e.g. not to usurp jurisdiction within the limits of the territory, or not to molest passengers crossing the bridge or ferry.

4. Rights or interests in certain conditions, considered as juris universitates. (See above, C. b.)

In many cases, the right of interest in the condition concurs with a right or interest over or in a person. For example, the father or husband has an interest in the child or wife; the child 955or wife, in the father or husband; the master, in the slave or servant. But, in other cases, there is no determinate subject (person or thing) to which the right in the condition can be said to relate. Such are rights in the conditions which are constituted by callings or professions. (See above, C. b.)

(d.) One of the great desiderata in the language of jurisprudence is this: A pair of opposed expressions denoting briefly and unambiguously the two classes of rights which are the subject of the present note: namely, Rights availing against persons generally or universally, and Rights availing against persons certain or determinate.

The opposed or contrasted expressions commonly employed for the purpose, are the following: ‘jus in re’ and ‘jus ad rem:’ ‘jus in rem’ and ‘jus in personam:’ ‘jus reale’ and ‘jus personale:’ ‘dominium,’ (sensu latiore) and ‘obligatio.’ But these are liable to the general objection which I have explained in the preceding remarks. (See C. a. b. c.) Jus in re, jus in rem, jus reale and dominium, will none of them denote, without a degree of ambiguity, the entire class of rights which avail against the world at large. Although they are often employed in that extensive signification, they commonly signify such of those rights as are rights to determinate things.

Besides this general objection, each of these pairs of terms is liable to special objections, which now I will briefly indicate. In the course of this review, certain terms, synonymous with the terms in question, will be noticed with the same brevity. At the close, I will shortly state my reasons for giving a decided preference to jus in rem et jus in personam.’

1. ‘Jus in re’ and ‘Jus ad rem.’—Jus ad rem signifies any right which avails against a person certain. Still it is often restricted to a species of such rights: to those which correlate with obligations ‘ad dandum aliquid.’ (See above, B. c.: C. b.: And see below, note 4.) It is, therefore, ambiguous.

2. ‘Jus reale’ and ‘Jus personale.’—For the numerous ambiguities which stick to these expressions, see below, note 5.

3. ‘Dominium’ (sensu latiore) and ‘Obligatio.’—Besides the general objection which is mentioned above, dominium (as opposed to obligatio) differs from dominium (in the strict signification). As opposed to obligatio, it embraces ‘jura in re’ (in the sense 956of the Classical Jurists): that is to say, ‘jura in re alienâ:’ rights or interests in subjects which are owned by others. Taken in the strict signification, it is directly opposed to these rights: being synonymous with ‘proprietas,’ with ‘in re potestas,’ or with ‘jus in re propriâ.’ (See Table I.—For the numerous ambiguities which beset the term obligatio, see Table I., note 6.)

4. ‘Potestas’ and ‘Obligatio.’—It has been proposed to substitute these in the place of dominium and obligatio, jus in rem, and jus in personam, etc. But this were a change to the worse. For, first, potestas, as synonymous with dominium, is encumbered with all the ambiguities which stick to the latter. And, secondly, it is liable to an objection from which the latter is free. For it usually signifies certain species of the rights which avail against persons determinate: namely, the rights of the master against the slave (—‘potestas dominorum in servos’) and the rights of the paterfamilias against his descendants (—‘patria potestas,’ or ‘potestas parentum in liberos’).

5. ‘Absolute rights’ and ‘Relative rights.’—Rights which avail against persons generally or universally, and rights which avail against persons certain or determinate, are not unfrequently opposed by the names of absolute and relative. But these expressions, as thus applied, are flatly absurd. For rights of both classes are relative: Or, in other words, rights of both classes correlate with duties or obligations. The only difference is, that the former correlate with duties which are incumbent upon the world at large; the latter correlate with obligations which are limited to determined individuals.

6. ‘Jura quæ valent in personae generatim,’ and ‘Jura quæ valent in personae certas sive determinatas.’—These expressions are sufficiently clear and precise. But they are rather definitions than names, and are much too long for ordinary use. To the purposes of discourse, brevity is just as necessary as distinctness or precision.

7. ‘Law of Property’ and ‘Law of Contract.’—These expressions, as thus opposed, are intended to express the distinction which is the subject of the present note. But they do the business wretchedly. Of the numerous objections which immediately present themselves, I will briefly advert to the following. 1°. We need contrasted expressions for the two classes of rights, 957and not for the laws or rules of which those rights are the creatures. 2°. Property is liable to the objection which applies to dominium. In this instance, its meaning is generic. It signifies rights of every description which avail against the world at large. But, in other instances, it distinguishes some species of those rights from some other species of the same rights. For example: It signifies ownership, as opposed to servitude or easement; or it signifies ownership indefinite in point of duration, as opposed to an interest for a definite number of years. In short, if I travelled through all its meanings and attempted to fix them with precision, this brief notice would swell to a long dissertation. 3°. Contract is not a name for a class of rights, but for a class of the facts or titles by which rights are generated. 4°. Rights arising from contracts are only a portion of the rights, which the expression ‘law of contract’ is intended to indicate. For ‘law of contract,’ as opposed to ‘law of property,’ denotes, or should denote, rights in personan certam: a class which embraces rights not arising from contracts, as well as the species of rights which emanate from those sources.

8. ‘Jus in rem’ and ‘Jus in personam.’—Of all customary expressions for the classes of rights in question, these are incomparably the best. ‘Jus in personam’ (certam sive deteminatam), is expressive and free from ambiguity. Cut down to jus in personam, it is also sufficiently concise. Jus in rem, standing by itself, is ambiguous and obscure. But when it is contradistinguished from jus in personam, it catches a borrowed clearness from the expression to which it is opposed.

Another decisive reason in favour of these terms will be found in the following remarks.

The phrase ‘in rem’ is an expression of frequent occurrence. And in all the instances in which it occurs, the subject to which it is applied is a something which avails generally: ‘quod generatim in causam aliquam valet.’

Take the following instance from the language of the English Law.

The Judgments of Courts of Justice are evidence against parties to the cause, and against the determinate persons (succeeding or representing them) who are styled their privies. As against persons who are neither parties nor privies, judgments, speaking generally, are not evidence. But certain judgments are excepted from the general principle, and are evidence against all persons, or, at least, against the world at large. Accordingly, 958judgments of this species are marked by a peculiar name: And that peculiar name is, ‘judgments in rem.’

In this instance, the phrase in rem, and the manner of applying it, are manifestly borrowed from the Roman Lawyers. For the latter is analogous to the manner in which they employ the phrase, wherever it occurs in their writings. Whenever they use the phrase, they always intend a something which avails generally or universally: in favour of a determined person against persons indeterminate; or in favour of indeterminate persons against a person determined.—The cases to which they apply it, I omit. For they could hardly be made intelligible, unless I wearied the reader with long and unseasonable explanations.

How the phrase in rem came to acquire this meaning, it is not very easy to perceive. It is one of the elliptical expressions with which language abounds, and which too frequently obscure the simplest and easiest notions. In this instance, it might perhaps be possible to restore the links which are dropped: to connect ‘res’ (as signifying a thing) with ‘in rem’ (as signifying generality). But I have neither space nor time for merely etymological researches.

To mark the important purpose to which the phrase may be turned, is matter of more moment.

Although it is applied by the Roman Lawyers to a considerable number of cases, they always apply it partially. They nowhere use it for the purpose of signifying briefly and unambiguously, ‘rights of every description which avail against persons generally.’ The large generic expression ‘Jus in rem,’ is not to be found in their writings.

This expression was devised by the Glossators, or by the Commentators who succeeded them. Seeing that the phrase ‘in rem’ always imported generality, and feeling the need of a term for ‘rights which avail generally,’ they applied the former to the purpose of marking the latter, and talked of ‘Jura in rem.’ And, in this instance, as in many others, they evince a strength of discrimination, and a compass of thought, which are rarely displayed by the elegant and fastidious scholars who scorn them as scholastic barbarians. In spite of the ignorance to which their position condemned them, their reason was sharpened and invigorated by the prevalent study of their age: by that school logic which the shallow and the flippant despise, but which all who examine it closely, and are capable of seizing its purpose, regard with intense admiration.

Now the expression jus in rem, in this its analogical mean959ing, perfectly supplies the desideratum which is stated above. For as ‘in rem’ denotes generality, ‘Jus in rem’ should signify rights availing against persons generally. Therefore, it should signify all rights belonging to that genus, let their specific differences be what they may. And that is the thing which is wanted.

If it were possible for me to fix the meaning of words, I would distinguish the two classes of rights and obligations in the following manner.

1°. Obligations considered universally, I would style ‘Offices’ or ‘Duties.’

2°. Rights which avail against persons generally or universally, I would style ‘Rights in rem.’

3°. Rights which avail against persons certain or determinate, I would style ‘Rights in personam.’

4°. Obligations which are incumbent upon persons generally or universally, I would style ‘Offices’ or ‘Duties.’

5°. To those which are incumbent upon persons certain or determinate, I would appropriate the term ‘Obligations.’ (See Table I. note 6.)

Without introducing a single new term, and without employing an old one in a new manner, we should thus be provided with language passably expressive and distinct: which would enable the writer or speaker to move onward, without pausing at every second step to clear his path of ambiguities. All that is necessary to this desirable end, is to use established terms in established meanings, taking good care to use them deteminately: i.e. to restrict each term to its appropriate object.

[Note 4.] ‘Jus in Re’ et ‘Jus ad Rem:’

(A.) By the Classical Jurists, the expression jura in re is opposed to, or contradistiuguiahed from, dominium, proprietas, or in re potestas. (See Table I. and Table II., note 3. C. d. 3.) For example, A servitude over land of which another is the owner, is ‘jus in re (alienâ):’ but the right or interest of the owner, is ‘dominium,’ ‘proprietas,’ or ‘in re potestas.’ The interest of the Pledgee or Mortagee, and the interest of the Pledgor or Mortgagor, are also respectively ‘jus in re (alienâ)’ and ‘dominium’ (or ‘proprietas’). For, in the Roman Law, as in English Equity, the interest of the Mortgagee is considered in the rational light of a mere lien: a security for the performance of the obligation which is incumbent upon the Mortgagor.

960Consequently, the import of jus in re, in the sense of the Roman Lawyers, is comparatively narrow. In their writings, ‘jura in eâ re,’ ‘jura in re,’ or (more concisely still) ‘jura,’ are the opposite of ‘dominion’ or ‘property.’ They are merely abridged expressions for ‘jura in re alienâ,’ as contradistinguished from ‘jus in re propriâ.’ They are restricted to such of the rights, availing against the world at large, as are acquired over property or dominion residing in another person.

By the successors of the Roman lawyers, the meaning of jus in re has been extended. As they employ it, ‘jus in re’ is synonymous with ‘jus in rem:’ sometimes signifying generally rights which avail against the world; sometimes signifying such of those rights as are rights to determinate things. (See Note 3. C. a., C. d.) But this extension of the term is most objectionable. For, first, it is needless and gratuitous: ‘jus in rem’ answering the purpose completely. (See Note 3. C. d. 8.) And, secondly, it darkens the technical language of the original and proper authorities. We must restore the term to its narrower and genuine import, before we can follow the expositions of the Roman Lawyers themselves.

(B.) Jus in re (in this its extended meaning) is opposed to jus ad rem: an expression which was devised in the Middle Ages, and of which there is not a vestige in the writings of the Classical Jurists.

(a.) As opposed to ‘jus in re’ (in the modem and extended meaning), ‘jus ad rem’ is synonymous with ‘jus in personam.’ It embraces all rights which avail against persons certain. But still it is often used in a narrower signification, and restricted to a species of those rights.

(b.) Taken in this its restricted meaning, it answers to the obligation ‘ad dandum aliquid.’ It is the right to the acquisition of a thing; ‘jus ad rem (acquirendam).’ Or (speaking more generally and more adequately) it is the right of compelling the party, who lies under the corresponding obligation, to pass a right in rem. (See Note 3. B. c., C. b., C. d. 1.)

Take the following examples:

1. If you contract with me to deliver me a specific thing, I have not a right over or in the thing, but a right to the thing as against you specially. I have not jus in rem (or jus in re), but jus ad rem: a right of compelling you to give me jus in rem, 961or of doing some act, in the way of grant or conveyance, which shall make the thing mine.

2. If you owe me money determined in point of quantity, or if you have done me an injury and are bound to pay me damages, I have also a right to the acquisition of a thing, or, rather, of compelling you to pass me a right in rem. I have a right of compelling you to deliver or pay me moneys, which are not determined in specie, and as yet are not mine: though they will be determined in specie, and will become mine, by the act of delivery or payment.

3. Suppose that you enjoy a monopoly by virtue of a patent, and that the patent (as generally happens) empowers you to assign the monopoly: and suppose, moreover, that you enter into a contract with me to transfer your exclusive right in my favour. Now here, also, I have jus ad rem; but still I have not a right to a determined thing. The object of the contract is neither a determined thing, nor a thing that can be determined. (See Note 3. C. c. 2.) My right is purely this: A right of compelling you to transfer a right in rem as I shall direct or appoint. If I may refine upon the expression which custom has established, I have not so properly ‘jus ad rem’ as ‘jus ad (jus in) rem.’

(c.) It is manifest that the expression ‘jus ad rem’ ought not to be substituted for ‘jus in personam.’ It is merely an abridged expression for ‘jus ad rem acquirendam:’ and it properly denotes rights, which are rights to the acquisition of a thing, or (speaking more generally and adequately) to the acquisition of a right in rem. But many of the rights which avail against persons certain, are not of that character: They have not the acquisition of a thing (or, rather, of a right in rem) as their purpose or scope. For example: If you contract with me to perform work and labour, or if you contract with me to forbear from some given act, the contract gives me a right which properly is ‘jus in personam,’ but which it were impossible to denominate ‘jus ad rem (acquirendam),’ without a glaring departure from the appropriate import of the expression.—‘Jus ad rem’ should clearly be restricted to a species of rights in personam.

(C.) With a view to the study of the Roman Law, or of any of the modern systems which are offsets from the former, it is highly expedient (or, rather, absolutely necessary) to dis962tinguish ‘jus ad rem,’ in its broad and improper meaning, from ‘jus ad rem’ (or, rather, ‘ad rem acquirendam’), in its restricted and correct signification. The neglect of this simple precaution has engendered the grossest error: has darkened the fair face of the Roman Law; and covered the arrangement of the Prussian and French Codes with a mist which is scarcely penetrable.

As the matter is intimately connected with the subject of the present note, I will try to explain briefly the flagrant error which I have mentioned, and to dispel or attenuate the obscurity of which that error is the source.

(a.) The acquistion of a right in rem, is commonly or frequently preceded by jus ad rem (in its restricted and correct signification). This is generally the case, whenever the right in rem is acquired by virtue of an alienation: e.g. by virtue of tradition (or delivery), or by virtue of grant or conveyance not accompanied with tradition.

The cases which I have supposed in the last section (B. b.), are cases of the sort. In the first of those cases, the right in rem is acquired by tradition or delivery, or by conveyance without tradition: and the acquisition is preceded by jus ad rem arising from contract or agreement. In the third case, the nature of the acquisition is such that tradition is impossible. The mode of acquisition is conveyance without tradition; and the preceding jus ad rem, with the correlating or corresponding obligation, arises, as before, from contract. In the second case, the mode of acquisition is simple tradition or payment; and the preceding jus ad rem, with the correlating or corresponding obligation, arises from an injury. In other cases, the preceding jus ad rem, with the correlating or corresponding obligation, arises from quasi-contract.

Observing that the acquisition of jus in rem is preceded in certain cases by jus ad rem, many of the modern Civilians generalised hastily and rashly, and fell into the following errors.

1. They inferred from those cases (which are striking by their frequency and importance), that every acquisition of jus in rem is preceded by jus ad rem and by a correlating or corresponding obligation. And this (as they supposed) invariable antecedence, they denoted in the following manner. To the fact or incident imparting jus in rem, they gave the name of ‘modus acquirendi,’ or ‘modus acquisitionis.’ To the preceding incident imparting jus ad rem (which they considered as a step or means to the acquisition of jus in rem), they gave the 963name of ‘titulus ad acquirendum,’ or (simply and briefly) ‘titulus.’ For example: According to their language, a contract to deliver a thing is ‘titulus ad acquirendum (jus in rem)’: The delivery or tradition which follows it, or by which it ought to be followed, is ‘modus (jus in rem) acquirendi’ or ‘modus acquisitionis.’

2. From this first error they fell into a second. Having supposed that jus in rem is invariably preceded by jus ad rem, they supposed that the latter has no independent existence, but is merely a forerunner of the former. Or (changing the expression) they supposed that the acquisition of jus in rem is always the scope or object of jus ad rem and of the obligation to which it answers. Or (changing the expression again) they supposed that every incident which imparts jus ad rem is ‘titulus ad acquirendum (jus in rem).’ And if the expression jus ad rem be taken in its restricted signification, the supposition is just. But, confounding its restricted signification with its broad and improper meaning, they extended the supposition to every right in personam and to every possible obligation. They supposed that ‘jus ad rem’ (as synonymous with ‘jus in personam’) has always the acquisition of jus in rem for its scope, purpose, or object: that every incident, which imparts ‘jus in personam,’ is merely ‘titulus ad (jus in rem) acquirendum,’ or is merely preparatory to a modus acquisitionis. The falsity of which supposition is gross and palpable. (See above, in the present note, B. c.)

Briefly stated their errors were these:

1. They supposed that ‘jus in rem’ (with the mean by which it is acquired) is always preceded by ‘jus in personam’ (and by a fact or incident imparting it). 2. They supposed that ‘jus in personam,’ in every case whatever, is the forerunner of ‘jus in rem:’ that the fact or incident, which gives ‘jus in personam,’ is always a title to the acquisition of ‘jus in rem,’ or is always preparatory to a modus acquisitionis.—The former of these errors, combined with the varying extension of ‘jus ad rem,’ naturally led to the latter.

(b.) The influence of the latter upon the Prussian and French Codes is most remarkable. I therefore reserve the further consideration of it for the notes which I purpose annexing to Tables V. and VI.¹⁴

(c.) As proofs of the extent to which the former obtained, 964I extract the following passage from Heineccius: the most renowned, and, perhaps, the most authoritative of the Civilians, who flourished in the eighteenth century.

The passage (which, for the sake of facilitating apprehension, I break down into short and distinct paragraphs) is taken from his excellent Recitations: Lib ii. tit 1. § 339. (See also his ‘Elements according to the Institutes’: Lib. ii. tit. 1. § 339.)

‘Quod adtinet ad quæstionem quid sit modus adquirendi? cavendum est, ante omnia, ne confundamus titulum et modum adquirendi: quippe qui toto cœlo differunt.

‘Omne enim dominium duplicem habet caussam: proximam, per quam immediate dominium consequor; et remotam, per quam et propter quam mediate fio dominus. E.g.: Si rem a domino emi, et hic mihi rem emtam tradit, dominus fio: Et tunc traditio eat caussa dominii proxima; emtio autem, caussa remota.

‘Caussa dominii proxima vocatur modus adquirendi; caussa autem remota, titulus.

‘Et hi etiam effectu differunt. Nam per titulum tantùm consequor jus ad rem: per modum adquirendi jus in re. Ex titulo ago in personam; adversus eum quocum mihi negotium fuit: ex modo adquirendi ago in rem; adversus quemcumque possessorem. E.g.: Liber a bibliopolâ primum mihi, deinde Titio venditus est: posteriori etiam traditus. Quæritur, an ego, qui prior emi, adversus Titium agere et librum prius emtum vindicare possim? Negatur. Nam qui emit, jam tum titulum habet; nondum autem rem adquisivit: Adeoque nec in rem agit adversus quemcumque possessorem; quia jus in re nullum habet. Ergo agere debeo adversus bibliopolam, quocum mihi negotium fuit, ad implendum contractum; vel, si adimplere nequeat, ad id quod interest.

‘Notandum itaque hic axioma: titulus nunquam dat jus in re, sed debet accedere traditio.

‘Ergo sive emerim, sive res mihi legata, donata, permutata sit, nondum tamen sum dominus, antequam traditio accedat: quæ sola transfert dominium vel jus in re, modo præcesserit Titulus ad transferendum dominium habilis.

‘Ergo nec titnius sufficit sine traditione, nec traditio sine titulo:—Axioma regnans per universum jus, et probe infigendum memoriæ.’

If you examine this passage closely, and take its parts in conjunction, you will find it involving the following assumptions: 1. That every acquisition of dominium, or jus in rem, consists of 965two degrees: One of them being the proximate; the other, the remote cause of the right: One of them, modus acquirendi (strictly so called); the other, titulus, or titulus ad acquirendum. 2. That the titulus, or remote cause of the right, always consists of an incident imparting jus in personam: E.g. a contract. 3. That the modus acquisitionis or proximate cause of the right, is always tradition and apprehension.

Now each of these assumptions is grossly false: and truly wonderful it is, that the learned and clear-sighted jurist, who wrote the passage which I have copied, fell into the strange errors with which it abounds.

I will examine these assumptions in succession.

1. It is not true, that every complete acquisition of dominium, or jus in rem, is divisible into a modus acquirendi and a titulus ad acquirendum.

There are two cases, and only two, in which Acquisition is opposed to Title by the Roman Lawyers: namely, the case of tradition, and the case of usucapion.

According to their system, every tradition or delivery, which gives ‘jus in rem,’ is preceded by an obligation (or by ‘jus ad rem’). Considered with reference to that preceding obligation, the tradition or delivery is denominated modus acquirendi, or, briefly, acquisitio. Considered with reference to the following tradition, the contract, or other incident, which creates the obligation, is styled ‘justus titulus,’ ‘justum initium,’ ‘justa caussa’: i.e. the legally operative inducement to the subsequent modus acquirendi.—‘Nunquam enim nuda traditio transfert dominium: sed ita; si venditio aut alia justa caussa præcesserit, propter quam traditio sequeretur.’

The effect of usucapion (a species of præscription) is this: It cures the fault which vitiates tradition or delivery, where the party, from whom the delivery proceeds, has not the right in rem which he affects to transfer. Here, the tradition, by itself, is inoperative: though, coupled with subsequent possession on the part of the alienee, it may give him the right in rem, after a certain interval. But in order that the alienee may benefit by his subsequent possession, bona fides is requisite. His subsequent possession works nothing, or, in other words, there is no usucapion, unless he believes, at the time of the delivery, that the person affecting to alien is competent to pass the right. But this he can scarcely believe, unless the tradition or delivery be made in 966the legal manner: unless the tradition or delivery would transfer the right, supposing that the party who makes it had the right to transfer. Consequently, ‘justus titulus,’ ‘justum initium,’ or ‘justa caussa,’ is a condition precedent to usucapion. For it necessarily precedes the tradition by which the possession is preceded, and upon which the possession operates. The contract which is the inducement to the tradition, is the titulus ad acquirendum: The vicious tradition, and the possession which purges it of the vice, constitute the modus acquirendi.

Now, in these cases, the division of the entire acquisition into a mode of acquisition, and a title to acquire, is intelligible. But, in many cases, it were utterly senseless. Take, for example, the case of Occupation: i.e. acquisition, by apprehension or seisin, of a subject which belongs to no one (—res nullius). Here, the entire acquisition is a simple and indivisible incident. You may call that simple incident a mode of acquisition, or you may call it a title. But to split it into a mode of acquisition and a foregoing title, is manifestly impossible.

The truth is, that Heineccius and other Civilians arrived at their general inference through a narrow and hasty induction. When they affirmed generally, ‘that a mode of acquisition supposes a foregoing title,’ their attention was directed exclusively to tradition preceded by contract. This is the only example adduced in the passage which I have copied, to support or illustrate the proposition. And, in cases of that class (and also of some other classes), the proposition holds universally. Or (speaking more accurately) the proposition holds universally in cases of that class, if we look exclusively at the doctrine of the Roman Lawyers with regard to the essentials of the tradition.

Their doctrine seems to be this:

The tradition is not sufficient to pass an irrevocable right, unless the preceding contract bind the alienor, and therefore impart to the alienee jus ad rem. In other words, the tradition is not sufficient to pass the right irrevocably, unless the preceding contract amount to ‘justus titulus:’ ‘titulus ad transferendum dominiuni habilis.’ Accordingly every acquisition by delivery, made in pursuance of a contract, is divisible into two degrees: a mode of acquisition and a title to acquire.

But, according to other systems (as, for instance, the English), acquisition by tradition or delivery, made in pursuance of a contract, is not always divisible into those distinct degrees.

967Take the following example:

You sell me a house or field. The contract, however, is not reduced into writing; and therefore is void by the Statute of Frauds. But though you are not obliged to perform the contract, you convey the house or field, agreeably to the terms of the contract, by livery or feoffment.

Now, here, I acquire the subject through tradition preceded by contract. But yet it were impossible to split the entire acquisition into a mode of acquisition and a title to acquire. The acquisition in this instance, like that by occupation, is a simple and indivisible incident. In consequence of the livery and feoffment, I acquire an indefeasible right in or over the subject: dominium, or jus in rem which is not revocable by you. But my right commences at the moment of the acquisition. Before the acquisition, I am not invested with jus ad rem, nor is there a corresponding obligation incumbent upon you. There is not the shadow of ‘justus titulus’ from the beginning to the close of the transaction.

The exceptions which I have mentioned are amply sufficient to demonstrate, that every acquisition of jus in rem is not divisible into a mode of acquisition and a preceding title to acquire.

There is, however, a class of cases, which will also serve to demonstrate the same truth, and which I am desirous of noting for another reason: namely, that they somewhat obscure that strong line of demarcation by which ‘jus in rem’ is separated from ‘jus in personam,’ and which should be seized distinctly by every student of law who aspires to master its principles.

Rights in rem sometimes arise from incidents which are styled contracts. The meaning of which seeming contradiction is this: that the incidents in question wear a double aspect, or are followed by a twofold effect. To one purpose, an incident of the sort gives ‘jus in personam,’ and, therefore, is a contract: to another purpose, it gives ‘jus in rem,’ and, therefore, is a conveyance. In a word, the incident combines the properties of a contract and a conveyance; but, by one of those ellipses which are at once so commodious and so perplexing, it is styled, briefly, ‘a contract.’

In the cases which I have now mentioned, the incident combines the properties of a contract and a conveyance, and is styled a contract simply for the sake of brevity. In other cases, the so-called contract is a pure conveyance or transfer, and is 968styled a contract by a mere abuse of language, and through a confusion of ideas which are utterly disparate and distinct.

Take the following examples of these several cases: viz. the cases wherein the incident is styled a contract by an ellipse; and the cases wherein the incident is styled a contract by a solecism.

According to English Equity (i.e. according to the Law which certain of our Courts administer), a sale and purchase, although it is styled a contract, imparts to the buyer, without more, dominion or ‘jus in rem.’ In the technical language of the system, ‘what is agreed to be done is considered as done.’ The subject of the sale is his, as against the seller specially; and the subject is also his, as against the world at large. The only interest in the subject, which remains to the seller, is a right ‘in re alienâ:’ a mortgage or lien expressly or tacitly created, to the end of securing the equivalent for which he has aliened.

But, according to the antagonist system which is styled pre-eminently Law, a sale and purchase, without more, merely imparts to the buyer ‘jus ad rem.’ The seller is obliged by the sale to transfer the subject to the buyer, and in case he break his obligation, by refusing or neglecting to transfer, the buyer may sue him on the breach, and recover compensation in damages. But that is the extent of the right which the sale imparts. The property or dominion of the subject still resides in the seller, and, in case he convey the subject to a third person, the property or dominion passes to the alienee.

Now, if the antagonist Law were fairly out of the way, the right of the buyer, according to Equity, would stand thus. Unless the seller refused to deliver the subject, and the buyer, in that event, were satisfied with his right to compensation, the sale and purchase, though styled a contract, would give him completely and absolutely dominion or ‘jus in rem.’ He could vindicate or recover the subject as against the seller himself, and as against third persons who might happen to get the possession of it. The so styled contract would amount to a perfect conveyance.

But, by reason of the dominion or property which remains to the seller at Law, the sale and purchase, even in Equity, is still imperfect as a conveyance. In order that the dominion of the buyer may be completed in every direction, something must yet be done on the part of the seller. He must pass his legal 969interest in legal form. He must convey the dominion or property, which still resides in him at Law, according to the mode of conveyance which Law, in its wisdom, exacts.

To this special intent or purpose, the buyer, even in Equity, has merely ‘jus in personam.’ Or (borrowing the language of the Roman Lawyers) the subject of the sale, even in Equity, ‘continues in obligatione.’

Speaking generally, the buyer, in contemplation of Equity, has dominion or ‘jus in rem.’ And, speaking generally, the sale, in Equity, is, therefore, a conveyance.

But, to the special intent or purpose which is mentioned above, the buyer has ‘jus in personam.’ Or (changing the shape of the expression) the seller remains obliged. This right in pereonam certam, and this corresponding obligation, Equity will enforce in specie. And, in respect of this right in personam, and of this corresponding obligation, the sale, even in Equity, is, properly, a contract.

According to the Roman Law dominium or jus in rem is not transferred by tradition, unless it be preceded by contract, or by other titulus. ‘Nunquam enim nuda traditio transfert dominium: sed ita; si venditio, aut alia justa caussa præcesserit, propter quam traditio sequeretur.’

And, conversely, dominion or jus in rem is not transferred by contract, unless it be followed by tradition. ‘Traditionibus et usucapionibus, non nudis pactis, dominia rerum transferuntur.’

This rule or maxim had been imported from the Roman into the French Law: And it formed a portion of the latter to the time of the Revolution. A contract to deliver a thing (or to pass a right in rem), imparted to the obligee ‘jus ad rem,’ or imposed upon the obligor an obligation to transfer or convey. But dominion or ‘jus in rem’ was not acquired by the former, till the contract to pass the right was completed by consequent tradition.

‘Dans l’ancienne jurisprudence, pour qu’une obligation transmît la propriété, elle devait être suivie de la tradition. Celui qui achetait une maison, par exemple, n’en devenait propriétaire que du moment où la maison lui était livrée: si elle était livrée une autre personne, c’était cette personne qui l’acquérait. L’obligation n’était alors qu’un titre pour se faire donner la propriété; le moyen d’acquérir cette propriété était la tradition.’—See ‘Code civil expliqué par ses motifs et par des exemples,’ par J. A. Rogron, Avocat aux Conseils du Roi et à la Cour 970de Cassation: Paris, 1826. (Note by M. Rogron to Article 711.)

But, according to the Code which now obtains in France, the dominion of a subject, belonging to the class of immovables, passes to the buyer by the so-called contract. Or (in the exquisitely absurd language of the Code and its Commentators) the right in rem passes to the buyer by the obligation which the contract creates.

‘La propriété des biens s’acquiert et se transmet par succession, par donation entre-vifs ou testamentaire, et par l’effet des obligations.’ (Code civil, article 711.)—‘Aujourd’hui on peut avoir la propriété, c’est-à-dire le droit de posséder, quoi qu’on ne possède pas réellement. Aussi est-elle transmise par la seule force de l’obligation, sans qu’il soit nécessaire qu’il y ait eu tradition.’ (Note to Article 711, by M. Rogron.)

‘L’obligation de donner emporte celle de livrer la chose,’ etc. (Code civil, article 1136.)

‘L’obligation de livrer la chose est parfaite par le seul consentement des parties contractantes. Elle rend le créancier (i.e. the obligee) propriétaire.’ (Code civil, article 1138.)—‘Ainsi l’obligation donne au créancier le droit sur la chose jus in re; et, par suite, l’action réelle, ou revendication: c’est-à-dire, le droit de forcer tout détenteur de la chose que nous appartient à nous la rendre.’ (Note to Article 1138, by M. Rogron.)

‘Les effets de l’obligation de donner ou de livrer un immeuble sont réglés au titre de la vente et au titre des privileges. et hypothèques.’ (Code civil, article 1140.)

‘La vente est une convention par laquelle l’un s’oblige à livrer une chose et l’autre à la payer.’ (Code civil, article 1582.)

‘La vente est parfaite^* entre les parties, et la propriété est acquise de droit à l’acheteur à l’égard du vendeur^† dès qu’on est convenu de la chose et du prix, quoique la chose n’ait pas encore été livrée ni le prix payé.’ (Code civil, article 1583.)—^* ‘Parfaite. Cette disposition est la conséquence de l’article 711, portant que la propriété est transférée par l’effet des obligations; c’est-à-dire sans qu’il soit, comme autrefois, besoin de tradition.’ (Note to article 1583, by M. Rogron.)—^† ‘A l’égard du vendeur. Mais non à l’égard des tiers qui peuvent avoir sur la chose vendue des droits antérieurs à la vente. Par exemple, si le vendeur n’était pas véritable propriétaire de la chose, celui auquel elle appartient conserverait le droit de la revendiquer.’ (Note to Article 1583, by M. Rogron.)

If, then, the subject of the sale belong to the class of immov971ables, dominion or ‘jus in rem’ passes from the seller to the buyer independently of tradition. But, if the subject be movable, the buyer, without tradition, has merely ‘jus ad rem.’ He has no right to the subject against a third person, unless the third person be in malâ fide, or has gotten possession of the subject with notice of the buyer’s titulus.

‘Si la chose qu’on s’est obligé de donner ou de livrer à deux personnes successivement est purement mobilière celle des deux qui en a été mise en possession réelle est préférée, et en demeure propriétaire, encore que son titre soit postérieur en date; pourvu toutefois que la possession soit de bonne foi.’ (Code civil, article 1141.)—Je vous vends ma montre: d’après le principe consacré dans les articles 711 et 1138, vous en devenez à l’instant propriétaire, bien que je ne vous l’aie pas livrée. Cependant je la vends demain à Pierre, et je la lui livre: elle doit lui rester, car il a été mis en possession réelle. Ainsi, en matière de meubles, la tradition est encore nécessaire pour transférer la propriété. Cette exception au principe général est basée sur la circulation des meubles, qui peuvent passer, dans le même jour, dans vingt mains différentes, et sur la nécessité de prévenir les circuits d’actions et les nombreux procès qui en résulteraient.’ (Note to Article 1141, by M. Rogron.)

Now according to the Articles of the Code which I have copied and collated above, the actual Law of France, with regard to the matter in consideration, would seem to stand thus.

If the subject of the sale be movable, the sale, when unaccompanied by tradition, is properly a contract. The buyer has ‘jus ad rem,’ but not ‘jus in rem.’ He has a right to the subject of the sale as against the seller specially, but he has no right to the subject as against the world at large. There is room for the distinction between contract and conveyance: between title to acquire and mode of acquisition.

But, in case the subject of the sale belong to the class of immovables, the sale, though unaccompanied by tradition, is, properly, a conveyance. The sale imparts to the buyer dominion or jus in rem; and it, therefore, gives him a right to vindicate or recover the subject from any who may be in the possession of it. There is no room for the distinction between contract and conveyance; between title to acquire and mode of acquisition. There is no room for ‘justus titulus:’ ‘justa caussa;’ ‘justum initium.’ For this supposes an acquisition to which it is the prelude: And the buyer acquires the subject, by the sale itself, as completely as he can acquire it. He has the dominion of 972the subject, although he has not the possession: And, by exercising a right of action annexed to his dominion, he may get the possession if he will.

In a word, the right which belongs to the buyer, according to the French Code, is the right which would belong to him, according to English Equity, if the system were not embarrassed by the conflicting provisions of Law.

To style the sale a contract, is a gross solecism. It is, however, a solecism which may be imputed to the Roman Lawyers; and with which it were not candid to reproach the Authors of the Code.

But when they talk of obligations as imparting dominion or property, they talk with absurdity which has no example, and which no example could extenuate. If they had understood the system which they servilely adored and copied, they would have known that obligation excludes the idea of dominion: that it imparts to the obligee ‘jus in personam,’ and ‘jus in personam’ merely. This is its essential difference: This is the very property which gives it its being and its name. ‘Obligationum enim substantia non in eo consistit ut aliquod nostrum faciat, sed ut alium nobis obstringat ad dandum aliquid, vel faciendum, vel præstandum.’

There are, indeed, purposes, as to which the sale is a contract: and, in respect of which, it is justly styled a contract. For example: The seller is obliged by the sale to deliver the subject to the buyer agreeably to their common intention. And, in case it be not delivered agreeably to that common intention, the buyer may sue the seller for breach of the obligation, and recover compensation in damages. (Code Civil, Article 1146 et seq.). But the dominion or jus in rem which the sale imparts to the buyer is not a right answering to an obligation specially incumbent upon the seller. Considered as imparting dominion, the sale is a conveyance: and it cannot be styled a contract, without an impropriety in speech.

According to the Roman Law, jus in rem is not transferred by contract, unless the contract be followed by tradition or delivery. But to this general principle there are numerous exceptions. For example: An hypotheca or mortgage is sufficiently created by pact, although the subject be not delivered, but remain in the possession of the mortgagor. In other words, the intention to create the mortgage, expressed orally or in writing, imparts to the mortgagee jus in re alienâ. The ex973pression of this intention on the part of the mortgagor is styled a pact or convention. But, though it is adjected to a convention, it is not a convention of itself. Imparting to the mortgagee jus in rem, it is, properly, a conveyance.

The confusion of contract and conveyance, by elliptical or improper expression, is one of the greatest obstacles in the way of the student. And, labouring to clear it up by apt and perspicuous examples, I have wandered at some length from the subject which I am directly considering. I now revert to that subject, and dismiss it with the following remark:—

Wherever jus in rem is acquired by a so-styled contract, the acquisition is not to be distinguished into titulus and modus acquirendi. That which might be titulus, supposing there were room for the distinction, transfers the jus in rem as completely as it can be transferred.

2. It is not true (as Heineccius and others have assumed), that every title to the acquisition of ‘jus in rem’ consists of some incident imparting ‘jus in personam,’ and, therefore, imposing an obligation upon a person or persons determinate.

As I have remarked above, there are two cases, and only two, wherein title to acquire and mode of acquisition are expressly distinguished and opposed by the Roman Lawyers themselves: viz. the case of tradition and the case of usucapion. Where ‘jus in rem’ is acquired by tradition, the acquisition is divisible into titulus and modus acquirendi: The titulus being always an incident imparting ‘jus in personam,’ and, therefore, imposing an obligation. Where ‘jus in rem’ is acquired by usucapion, the acquisition is divisible in the like manner; The titulus being commonly an incident, or commonly supposing an incident, of the like quality or effect.

But the difference between title to acquire and mode of acquisition is not confined to the two cases wherein the Roman Lawyers have expressly taken the distinction.

Whenever the acquisition is divisible into two distinct events, we may find it necessary to distinguish them, and to mark them with distinguishing names. And, in every case of the kind, we may mark them, if we will, with the names which are now in question. We may style the fact or event with which the acquisition begins, the title to acquire. We may style the fact or event by which the acquisition is completed, 974the mode of acquisition. We may say that the latter is the proximate cause of the right, or is that through which the latter is immediately acquired. We may say that the former is the remote cause of the right, or is that through which the right is acquired mediately. We may style the former the titulus, initium, or caussa, to which the latter is indebted for its investitive operation or effect.

Now the cases wherein the acquisition is divisible into two events, and wherein we may find it necessary to distinguish those distinct events, are numerous. And, in many of these numerous cases, the fact or event with which the acquisition begins, is not a fact or event imparting jus in personam.

I will try to illustrate these positions by simple and plain examples.

The cases wherein usucapion most frequently obtains, are those which I have mentioned above: viz. cases of alienation by tradition or delivery, without right on the part of the alienor. And, in these cases, the titulus consists of an incident imparting jus in personam.

But usucapion sometimes obtains without an incident of the sort, and is nevertheless distinguished by the Roman Lawyers themselves into title and mode of acquisition. For instance, In case I occupy a subject which I believe to be res nullius, but which, in truth, belongs to another person, I acquire the subject (after a certain interval) by continued and undisturbed possession. Now here the acquisition is divisible into mode of acquisition and title, and yet there is no incident creating an obligation. My continued and undisturbed possession constitutes the mode of acquisition. My seisin or apprehension of the subject animo mihi habendi, coupled with my belief at the time that the subject is res nullius, constitutes my title to acquire. Without apprehension or seisin accompanied by bona fides, no usucapion obtains. Consequently, the apprehension bonâ fide is the remote cause of the right, although the subsequent possession is the proximate or direct.

Restricting the distinction in question as the Roman Lawyers have restricted it, an obligation is not created by every title to acquire. (Vide Dig. lib. xli. tit. 3, 4, 5, 6, 7, 8, 9, et 10.)

Succession ab intestato, according to the Roman Law, is governed in different cases by different principles.

975In certain cases, the heir acquires the heritage ipso jure: that is to say, he acquires the heritage, without an act of his own, at the moment of the intestate’s decease. To borrow an expressive phrase from the old French Law, ‘le mort saisit le vif.’ If the heir survive the intestate a single instant, the heritage vests in the former and devolves to his own representative.

In other cases, the acquisition of the heritage commences at the death of the intestate, but is completed by the acceptance of the heir. At the moment of the intestate’s decease, he has jus hereditatem adeundi: But he actually acquires the heritage hereditatem adeundo. At the moment of the intestate’s decease, he has jus delatum: But until he signifies his acceptance expressly or tacitly, he has not jus acquisitum. If he die without acceptance, his right (generally speaking) is not transmitted to his representative, but the party who takes the heritage takes it as heir to the intestate. The principle by which the transmission is here determined, is analogous to a principle (‘seisina facit stipitem’) which obtains in our Law of Descents.

Now where the acquisition of the heritage is completed by the acceptance of the heir, the facts or events which constitute the acquisition must be divided into two parcels. And these we may style, if we will, titulus and modus acquirendi. For, if we understand that distinction as the Roman Lawyers understood it, it will hold in every case wherein the acquisition is gradual, provided the degrees be two, and be perfectly distinct from one another. In the widely differing cases wherein they took the distinction, there must be some common circumstance to which the distinction may be referred: And the only common circumstance which I am able to discover, is the divisibility of the entire acquisition into two distinct degrees.

Supposing we take the distinction in the case immediately before us, the terms will apply thus:

The titulus consists of the facts whereby the right is deferred: namely, the intestacy, the death of the intestate, the survivorship of the heir, and his relation to the deceased. The modus acquirendi consists of the event whereby the acquisition is completed: namely the acceptance of the right which is deferred.

3. It follows from what has preceded, that apprehension or seisin, consequent upon tradition or delivery, is not invariably an ingredient in the acquisition of jus in rem.

976In various cases of usucapion, and also in the case of occupation, the subject is not apprehended in consequence of tradition. And where the right is acquired by a so-styled contract, the possession of the subject frequently continues with the party by whom the right is conveyed.

The acquisition of the heritage by the heir is equally in point. Whether he acquire by testament or in consequence of intestacy, ipso jure or hereditatem adeundo, he acquires without tradition and without apprehension. So completely foreign is apprehension to the acquisition of the heritage as a whole, that, though that general acquisition gives him the right of vindication, it gives him none of the remedies which are founded upon the right of possession. By the acquisition of the heritage as a whole, he acquires the dominion of the single or several things which are constituent parts of the heritage. By virtue of that general acquisition, he can vindicate any of those things against any who may detain it from him. But until he obtains the possession by a distinct act of apprehension, he is unable to recover it by any of those interdicts which are purely possessory remedies.

Acquisition by mancipation is commonly in the same predicament, if the subject of the conveyance be immovable (—prædium). There is no tradition of the subject on the part of the alienor, no apprehension of the subject on the part of the alienee. The conveyance imparts to the latter the dominion of the absent prædium, and gives him that right of vindication which dominion or property supposes. But it gives him none of the remedies which are purely possessory. Before he can exercise these in reference to the subject of the mancipation, he must acquire the actual possession, with the consequent jus possessionis, by a distinct act of apprehension.

Here I close my remarks upon ‘titulus et modus acquirendi.’ I have insisted upon this celebrated distinction at considerable length, for the purpose of dispelling the darkness cast upon the Roman Law by the current though false theory which I have stated and examined above. I am convinced by my own experience, that few of the difficulties, inherent in the study of the system, equal the difficulties induced upon it by that groundless and absurd conceit.

Before I proceed to the matter of the ensuing note, I will briefly interpose a remark suggested by the subject of the present.

977By English Lawyers, and even by English conveyancers, ‘title’ is often used as if it were synonymous with ‘right.’ But when it is used correctly, it signifies the fact, simple or complex, through which the party entitled was invested with a right:—the means by which he acquired it. In a word, ‘title’ is synonymous with ‘investitive fact or event.’

Tradition and usucapion are the only cases wherein the Roman Lawyers employ the term ‘title’ to signify an investitive fact. And, in those two cases, it is not, properly speaking, the name of an investitive fact, but it denotes a constituent part of a complex investitive fact. It denotes the fact by which the acquisition begins, as contradistinguished from the fact by which the acquisition is completed. And, on the other hand, ‘mode of acquisition,’ as used in those cases, loses its usual import. It is not synonymous with ‘investitive fact,’ but it denotes a constituent part of a complex investitive fact. It denotes the fact by which the acquisition is completed, as contradistinguished from the fact by which the acquisition begins.

The entire fact, simple or complex, through which the party entitled was invested with a right, is styled, in the language of the Roman Law, ‘modus sive caussa acquirendi,’ ‘species sive genus acquisitionis,’ or simply and briefly, ‘acquisitio.’

Consequently, the ‘title’ of the English, and the ‘modus sive caussa acquirendi’ of the Roman Law, are synonymous names. Each of them is equivalent to ‘investitive fact or event:’—the term which has been suggested by Mr. Bentham.

‘Title’ is sometimes used by the English Lawyers in a meaning which is somewhat different. Properly speaking, the Vendor’s title merely consists of the fact by which his right was acquired. But the so-called title which he submits to the inspection of the Purchaser, usually embraces more: viz. all such other titles as may elucidate the quality of his own, or may show the extent of the right which he affects to transfer. (See Sugden’s Law of Vendors, etc. ch. vii.)

[Note 5.]—‘Jus Reale sive Jura Realia’ et ‘Jus Personale sive Jura Personalia:’

In the language of modern Civilians, and in the language of the various systems which are offsets from the Roman Law, rights availing against persons universally or generally, and rights availing against persons certain or deteminate, are not unfrequently denoted by the distinctive names of ‘jus reale’ and ‘jus 978personale:’ The adjective reale being substituted for ‘in rem;’ and the adjective personale for ‘in personam.’

These expressions are so ambiguous, that the following cautions may be useful to the Student.

1. ‘Jus reale’ and ‘jus personale,’ which signify rights in rem and rights in personam, must not be confounded with ‘jus rerum’ and ‘jus personarum:’ i.e. ‘law of things’ and ‘law of persons.’ (For the import of these last-mentioned expressions see above, Note 2: The Digression in Note 3, at C. b.: Table III. Note 3: and Table IV. Section 2.) The law of things, and the law of persons, are, both of them, conversant about rights, real and personal.

2. The distinction of the Civilians between real and personal rights, must not be confounded with the distinction of the English Lawyers between real property or interests and personal property or interests. Real rights (in the sense of the English Lawyers) comprise rights which are personal as well as rights which are real (in the sense of the Civilians): And personal rights (in the sense of the former) embrace rights which are real as well as rights which are personal (in the sense of the latter). The difference between real and personal (as the terms are understood by the Civilians) is essential or necessary. It runs through the English Law, just as it pervades the Roman: Although it is obscured in the English by that crowd of gratuitous distinctions which darken and disgrace the system. But the difference between real and personal (in the sense of the English Lawyers), is accidental. In the Roman Law, there is not the faintest trace of it.

In one instance, the term real, as used by the English Lawyers, bears the import which is usually annexed to it by the Civilians:

An agreement between parson and landowner discharging land from tithes, was formerly binding upon the parson and also upon his successors in the cure, if made with the consent of the patron and with the concurrence of the ordinary. And such an agreement was and is styled ‘a composition real.’ Why? Because it availed generally against incumbents of the benefice, and was not simply binding upon the parson who entered into it. Because, in short, it operated in rem, and not in personam merely.

I think that the term real, as used by the English Lawyers, bears the last-mentioned import in two or three instances more. But, at this moment, I am unable to recollect them. And, 979speaking generally, the ‘real’ and ‘personal’ of the Civilians, and the ‘real’ and ‘personal’ of the English lawyers, denote two distinctions which are completely disparate.

3. In the sense of the Civilians, ‘jus personale’ signifies any right which avails against a person certain or against persons certain. In the English Law ‘personal’ sometimes signifies a sort or species of such rights: viz. those rights of action, which, in the language of the Roman lawyers, ‘nec heredibus nec in heredes competunt:’ which neither pass to the persons who represent the injured parties, nor avail against the persons who represent the injuring parties. Being limited to parties who are directly affected by wrong, and only availing against parties who are authors of wrong, these rights of action are styled by English Lawyers ‘personal:’ Or (more properly) they are said to expire (or to be extinguished) with the persons of the injured or injuring.

‘Actio personalis moritur cum personâ,’ is the rule or maxim applied to the rights in question. But, like a thousand phrases dignified with the name of maxims, this wretched saw is a purely identical proposition. For a personal action (as a term is here understood) means a right of action which expires or is extinguished with the party.

4. The servitudes of the Roman Law are of two kinds: 1°. prædial or real servitudes (—‘servitutes prædiorum sive rerum’): 2°. personal servitudes (—‘servitutes personarum sive hominum).

Now ‘real’ and ‘personal,’ as distinguishing the kinds of servitudes, must not be confounded with ‘real’ and ‘personal,’ as synonymous or equivalent expressions for ‘in rem,’ and ‘in personam.’

In a certain sense, all servitudes are real. For all servitudes are rights in rem, and belong to that genus of rights in rem which subsist in re alienâ. (See above, Note 3, B. b.: Note 4, A.)

And, in a certain sense, all servitudes are personal. For servitudes, like other rights, reside in persons, or are enjoyed or exercised by persons.

The distinction between ‘real’ and ‘personal,’ as applied and restricted to servitudes, is this:

A real servitude resides in a given person, as the owner or occupier, for the time being, of a given prædium: i.e. a given field, or other parcel of land; or a given building, with the land whereon it is erected. A personal servitude resides in a given person, without respect to the ownership or occupation of a 980prædium. To borrow the technical language of the English Law, real servitudes are appurtenant to lands or messuages: personal servitudes are servitudes in gross, or are annexed to the persons of the parties in whom they reside.

Every real servitude (like every imaginable right) resides in a person or persons. But since it resides in the person as occupier of the given prædium, and devolves upon every person who successively occupies the same, the right is ascribed (by a natural and convenient ellipsis) to the prædium itself. Vesting in every person who happens to occupy the prædium, and vesting in every occupier as the occupier thereof, the right is spoken of as if it resided in the prædium, and as if it existed for the advantage of that senseless or inanimate subject. The prædiuim is erected into a legal or fictitious person, and is styled ‘prædium dominans.’

On the other hand, the prædium, against whose occupiers the right is enjoyed or exercised, is spoken of (by a like ellipsis) as if it were subject to a duty. The duty attaching upon the successive occupiers of the prædium, is ascribed to the prædium itself: which, like the related prædium, is erected into a person, and contradistinguished from the other by the name of ‘prædium serviens.’

Hence the use of the expressions ‘real’ and ‘personal’ for the purpose of distinguishing servitudes.

The rights of servitudes which are inseparable from the occupation of prædia, are said to reside in those given or determinate things, and not in the physical persons who successively occupy or enjoy them. And, by virtue of this ellipsis and of the fiction which grows out of it, servitudes of the kind are styled ‘servitutes rerum,’ or ‘servitutes reales:’ i.e. rights of servitude annexed or belonging to things.

The rights of servitude which are not conjoined with such occupation, cannot be spoken of as if they resided in things. And, since it is necessary to distinguish them from real or prædial servitudes, they are styled ‘servitutes personarum’ or ‘servitutes personales:’ i.e. rights of servitudes annexed or belonging to persons.

[Note 6.] ‘Or, more generally, ex Conventione.’

(A.) Promises are distinguished by the Roman Lawyers into conventions and pollicitations. A convention is defined thus—duorum vel plurium in idem placitum consensus: Or thus—promissio ab altero data ab altero acceptata. A pollicitation is a promise not accepted by the promisee.

981Conventions are divisible into two classes. Some might be enforced by action, according to the more ancient law. Others, according to that law, could not be enforced by action. Conventions of the former class are styled contracts: conventions of the latter class, pacts.

In consequence of rules introduced by the Prætors, or in consequence of laws passed by the supreme legislature, the parties interested in certain pacts were enabled to enforce them by action. In other words, pacts of certain species passed into the class of contracts, but improperly retained the name which formerly applied to them with propriety. Pacts of other species were not affected by these changes, but continued in their primitive state.

Pacts which the interested parties are enabled to enforce by action, are distinguished by the Roman Lawyers into prætorian and legitimate : that is to say, into such as the parties can enforce by virtue of the Prætorian edict, and such as the parties can enforce by virtue of acts of legislature.

In the language of the Modern Civilians, pacts which the interested parties are unable to enforce by action, are styled nuda: i.e. not clothed with rights of action. Pacts which the interested parties are enabled to enforce by action, are styled non nuda or vestita: i.e. clothed with rights of action.

It follows from the preceding analysis, that the scheme of obligations which is given by the Compilers of the Institutes wants an important member: namely, obligations ex pacto. If they had been true to their own method, they would not have opposed directly to the obligations which arise from delicts, the obligations which arise from contracts. According to that method, the obligations which arise from delicts should be opposed directly to the obligations which arise from conventions. And these should be divided into two classes: viz. obligations ex contractu and obligations ex pacto.

(B.) The following brief remarks upon certain terms, may save the student much perplexity.

(a.) In the language of modern jurisprudence, ‘contract’ is often synonymous with the ‘connvention’ of the Roman Lawyers.

In the language of the Roman Law, ‘contract’ denoted originally a convention which may be enforced by action; but, in consequence of the changes to which I have adverted above, its import was somewhat narrowed. It ceased to denote generally a convention which may be enforced by action, and was restricted to conventions which the parties might enforce by virtue of the 982more ancient law. For the pacts, which, in consequence of those changes, were clothed with the rights of action, were not styled contracts, although they were contracts in effect. Consequently, the definition, which, in earlier times applied exclusively to contracts, applied indifferently, at a later period, to contracts, and obligatory pacts.

In the language of the English Law, ‘contract’ is a term of uncertain extension. Used loosely, it is equivalent to ‘convention’ or ‘agreement.’ Taken in the largest signification which can be given to it correctly, it denotes a convention or agreement which the Courts of Justice will enforce. That is to say, it bears the meaning which was attached to it originally by the Roman Jurisconsults.

(b.) In the language of the Roman Law, the term ‘convention’ is synonymous with the term ‘agreement,’ and comprises the term ‘contract.’

In the language of the English Law, ‘convention’ or ‘covenant’ is restricted to contracts, and to contracts of a subordinate species: namely, to a species of that species of contracts which are evidenced by writing under seal.

In the language of the English Law, the meaning of ‘bond’ is not less narrow and anomalous than that which is attached to ‘covenant.’ With the Roman Jurists, and with the Modern Civilians, ‘vinculum,’ or ‘bond’ (agreeably to its obvious meaning) is equivalent to ‘obligatio.’ With the English Lawyers, it denotes a unilateral promise evidenced by writing under seal and couched in a peculiar form. Or, perhaps, it rather denotes the writing by which the promise is evidenced than the promise or contract itself.

(c.) Although ‘pact’ is usually opposed to ‘contract,’ it is frequently synonymous with ‘convention.’ And when it is used in this, its larger or generic meaning, it is not opposed to, but comprises ‘contract.’

In the language of the Roman Jurists, or rather of the Modern Civilians, every pact or convention which cannot be enforced by action is styled nude. In the language of the English Lawyers, the import of nudum pactum has been strangely narrowed. Instead of denoting generally agreements which cannot be enforced, it is restricted to agreements which are void for a special or particular reason: namely, for want of sufficient consideration.

(C.) From conventions, contracts, and pacts, I pass to obli983gations ‘quasi ex contractu,’ or (speaking more generally and adequately) to obligations ‘quasi ex conventione.’

(a.) Obligations quasi ex contractu (or, rather, quasi ex conventione) arise from facts which are not conventions, and which also are not violations of existing obligations or duties. In other words, they are not begotten by conventions, nor are they begotten by wrongs.

The facts which I am now considering are not wrongs, and are sources or causes of obligation. By this analogy, and by this analogy only, these facts are allied to contracts and to pacts which are contracts in effect. And the obligations which arise from these facts are said, by reason of this analogy, to arise ‘quasi ex contractu,’ or ‘quasi ex conventione.’ For, in the language of the Roman Lawyers, analogy is commonly denoted by the adverb quasi, or by the adverb uti and its derivative utilis.

I will try to illustrate, by a plain and brief example, the propositions which I have now stated in general or abstract terms.

Soluti indebiti, or the payment and receipt of money erroneously supposed to be due, is one of the facts which I am now considering.

The erroneous payment and receipt is a source or cause of obligation, although the transaction is not a convention, and although there is nothing in the fact savouring of injury or wrong. There is no convention, inasmuch as the performance of an obligation is the only design of the payment. There is no wrong, inasmuch as the party who receives the money believes that the money is due. But inasmuch as the money is not given, an obligation to return it attaches upon the party who receives it from the moment at which it is paid.

He is not obliged by convention, but ‘quasi ex conventione.’ He is bound as if by convention, or he is bound as it were by convention. As he would have been obliged in case he had entered into a contract, so is he actually obliged by the fact which has actually happened.

And as the fact which begets the obligation is as it were a convention, so is a breach of the obligation analogous to a breach of contract.

(b.) The species of quasi-contracts have nothing in common but this: namely, that they are sources or causes of obligation; that they are not wrongs: and that they are not contracts or other conventions.

Accordingly, in an excerpt in the Digests from the Res 984Quotidianæ of Gaius, obligations are divided in the following manner: 1st, obligations ex contractu: 2ndly, obligations ex maleficio: 3rdly, anomalous obligations: i.e. obligations which are not reducible to either of the preceding classes. ‘Obliga- tiones aut ex contractu nascuntur, aut ex maleficio, aut proprio quodam jure ex variis causarum figuris.’ Dig. lib. xliv. tit. 7, l. 1, in princip.

It appears from other excerpts, that anomalous obligations were divided in the Res Quotidianæ into two classes: namely, obligations quasi ex contractu and obligations quasi ex maleficio. But all the obligations of this last-mentioned class which I have anywhere happened to meet with, are either obligations arising from genuine delicts, or are not distinguishable from the obligations which are styled ‘quasi ex contractu.’ (See Table I. note 7.) Consequently, ‘anomalous obligations’ and ‘obligations quasi ex contractu’ may be considered equivalent expressions. Each of them denotes this, and this only: namely, that the sources of the obligations in question are neither delicts nor conventions, and that the various species into which those obligations are divisible have nothing in common excepting that negative property.

For obligations ex delicto or ex maleficio, see Table I.

(c.) The consent of the parties is of the essence of a contract. But this consent may be manifested in different ways. It may be manifested by words written or spoken; or by signs which are not words. When it is manifested by words, the contract is styled express. When it is manifested by conduct, or by signs which are not words, the contract is styled implied, or, more properly, tacit. In either case, there is a genuine or proper convention.

But in the language of English Jurisprudence, quasi-contracts (i.e. sources of obligation which are neither conventions nor wrongs) are styled ‘implied contracts,’ or ‘contracts which the law implies.’ That is to say, quasi-contracts, and genuine though implied contracts, are denoted by one name, or by names which are nearly alike. It is scarcely necessary to add, that quasi-contracts, and implied or tacit contracts, are commonly or frequently confounded by English Lawyers. (See, in particular, Sir William Blackstone’s Commentaries, B. ii. ch. 30, and B. iii. ch. 9.)