LECT. XII consist of rights as well as of duties; and wherein the rights are the more conspicuous and distinctive constituents or components. A Roman Citizen, for instance, was of course distinguished from a foreigner, chiefly by the numerous rights which he enjoyed: so was a freeman from a slave : insomuch that he who was reduced from the more advantageous of these situations to the other was said to undergo capitis deminutio: so predominating was the idea of the rights which he lost over that of the duties from which he became freed, although by the same event by which he lost the rights he became freed from the duties also. This last mentioned error, in short, arose from the confusion of status (the larger or generic expression) with caput (the narrower or specific). Fictitious or legal persons. Fictitious or legal persons are of three kinds: 1st, Some are collections or aggregates of physical persons: 2ndly, others are things in the proper signification of the term: 3rdly, others are collections or aggregates of rights and duties. The collegia of the Roman Law, and the corporations aggregate of the English, are instances of the first: the prædium dominans and serviens of the Roman Law, is an instance of the second: the hæreditas jacens of the Roman Law, is an instance of the third. It is impossible that I should enter here upon the consideration of legal persons. For their natures are various; the ideas which they stand for are extremely complex; and they, therefore, belong to the detail, rather than to the generalia of the science. At present I will merely remark that they are persons by a figment, and for the sake of brevity in discourse. All rights reside in, and all duties are incumbent upon, physical or natural persons. But by ascribing them to feigned persons, and not to the physical persons whom they in truth concern, we are frequently able to abridge our descriptions of them. To take the easiest instance; this is the case with the prædium dominans and serviens of the Roman Law. A servitus or easement over one prædium resides in every person who occupies another prædium: meaning by a prædium a given piece of land, or a given building with the land on which it is erected. The servitude or easement in question (as, for instance, a right of way) is ascribed, by a fiction, to one of these prædia; and, by a similar fiction, an obligation or duty to bear the exercise of the servitude is imputed to the other. The first is styled dominans; the latter serviens. Or (as we should say in English Law-language) the jus servi- LECT. XII tutis or easement is appurtenant to lands or messuages. In truth, the right resides in every physical person who successively owns or occupies the prædium styled dominans. And the right avails against every physical person who successively owns or occupies the prædium styled serviens. But by imputing these rights and obligations to the prædia themselves, and by talking of them as if they were persons, we express the rights and duties of the persons who are really concerned, with greater conciseness. To take another instance. Hæreditas jacens was a term employed in the Roman Law to denote the whole of the rights and obligations which, at any instant of time during the period which intervenes between the death of the testator or intestate, and the heir's acceptance of the inheritance, would have devolved upon an heir at that instant entering upon the inheritance. This mass of rights and obligations was by a fiction styled a person, although clearly not a person in the popular sense of the word, nor even consisting of any determinate thing, but being a mere collection of rights and obligations. It was so termed by way of expressing that any benefit accruing to the inheritance during the above period, would enure to the benefit of the heir. FRAGMENTS. Law is imperative or permissive.35 Law, considered as a rule of conduct, prescribed by the Legislator or Judge, is necessarily imperative, since it imposes an obligation to act or to refrain from acting in a given manner.3 36 As conferring a right, it is permissive. Considered as an expression of the will of the Legislator or Judge, it is imperative or permissive. For it may consist in the removal of restraint. Penal Laws are seldom directly imperative. Sanction is not of the essence of permissible law. For, by such 35 Bentham, 'Principles,' etc. pp. 221, 328-9. Blackstone, 86. Thibaut, Sys tem. 36 Insofern wir unter Gesetzen, die von der Staatsgewalt den Unterthanen vorgeschriebenen Regeln verstehen, ist es einleuchtend, dass es in diesem Sinne nur gebietende und verbietende Gesetze, aber keineswegs erlaubende Gesetze geben kann. Denn in Beziehung auf die erlaubten Handlungen bedarf es keiner besondern Bestimmung, da aus dem Inhalte der Gebote oder Verbote unmit- If by Laws be meant obligatory or LECT. XII a law, an obligation, instead of being imposed, may be simply removed. (Sed quære.) It has hitherto been assumed that every law imposes an Obligation. Apparent exception in the case of Permissive Laws. The exception only apparent. Taking off an Obligation, it confers a Right, and so imposes an Obligation corresponding to that right. With reference to such parts of conduct as the positive law of the community does not touch, the members of a political society are in a state of nature. (Sed quere: For they are protected in Such liberty would seem to consist of that liberty by the State. rights conferred in the way of permission.) Law is absolute or conditional;-is to take effect at all events, or only in default of dispositions by the interested parties. Liberty. Freedom, Liberty, are negative names, denoting the absence of Restraint. Civil, Political, or Legal Liberty, is the absence of Legal Restraint, whether such restraint has never been imposed, or, having been imposed, has been withdrawn. It is general or particular: i.e. it extends to all; or it is granted to one or some, by an exemption or privilegium (see post, ‘Privilege'). Liberty and Right are synonymous; since the liberty of acting according to one's will would be altogether illusory if it were not protected from obstruction. There is however this difference between the terms. In Liberty, the prominent or leading idea is, the absence of legal restraint: whilst the security or protection for the enjoyment of that liberty is the secondary idea. Right, on the other hand, denotes the protection and connotes the absence of Restraint.37 If the protection afforded by the Law be considered as afforded against private persons, the word Right is commonly employed. If against the Government, or rather against some member of the Government, Liberty is more frequently used: e.g. the Liberties of Englishmen.38 Liberty and Right are not however always coexten 37 Par rapport aux actions sur les quelles le législateur ne prononce ni défense ni injonction, il ne crée aucun délit, aucune obligation, aucun service; cependant il vous confère un certain droit, celui de faire ou de ne pas faire, selon votre propre volonté.—Traités de Leg. vol. i. p. 156. The right of doing that which is not prohibited, supposes an obligation on others not to obstruct. See 'Principles,' etc. p. 222.-Marginal Note. On peut imposer des obligations sans qu'il en résulte des droits; mais on ne peut pas créer des droits qu'ils ne soient fondés sur des obligations. Comment me confère-t-on un droit de propriété sur un terrain? C'est en imposant à tous les autres l'obligation de ne pas toucher à ses produits. Comment ai-je le droit d'aller et venir dans toutes les rues d'une ville? C'est qu'il n'existe point d'obligation qui m'en empêche.'-Traités, etc. And there does exist an obligation on others to refrain from obstructing me.-Marginal Note. 38 For Liberty, as meaning share in Sovereignty, see Kant, Zum ewigen Frieden.' See also ante, p. 281 et seq. sive, since the security for the enjoyment of the former may in part LECT. XII be left to the moral and religious sanctions. (Sed quære.) Whether Liberty can ever mean anything but the right to dispose of one's person at pleasure? Liberty or Freedom to deal with an external subject seems, however, to be equivalent to 'Right to deal with it.' On the whole, Right and Liberty seem to be synonymous; either of them meaning, 1st, permission on the part of the Sovereign to dispose of one's person or of any external subject (subject to restrictions, of course); 2ndly, security against others for the exercise of such right and liberty. Wherever there is protection afforded, Right is the proper word. As against the sovereign, there can be no right. Physical freedom is the absence of external obstacles; i. e. the absence of causes which operate independently of the will. Moral freedom is the absence of motives of the painful sort. LECTURE XIII. PERSON AND THING. IN my last Lecture, I distinguished Obligations or Duties LECT. XIII into positive and negative; and indicated generally and briefly the nature of that important distinction. I also distinguished Obligations into relative and absolute : that is to say, obligations which correlate with, or correspond or answer to rights; and obligations which neither imply, nor are implied by, rights. And, for the reason which I then assigned, I began with the analysis of rights (and of the obligations implied by rights); and deferred all further remark upon the nature of absolute obligations, till that analysis should be completed. But, since rights reside in persons, and since persons, things, acts, and forbearances are the subjects or objects of rights, it was necessary that I should advert to the significations of those several related expressions, before I could address myself to rights and to the obligations with which they correlate. Accordingly, I distinguished persons into physical or natural, and legal or fictitious: that is to say, into persons, properly and simply so called; and persons which are such by a fiction, and for the sake of brevity in discourse. Recapitulation. LECT. XIII I then stated the meaning which I attach to the term person,' as signifying a physical or individual person. I endeavoured to demonstrate, that the extensive meaning which I attach to the term, coincides with the meaning which was annexed to it by the Roman Lawyers. And I distinguished that meaning from another and a very different meaning in which they frequently employ it: namely, not as signifying physical or individual persons, but as signifying the conditions or status which are borne or sustained by the former. In conclusion, I enumerated the kinds of persons which are persons by virtue of fictions; and I also pointed at the design which those fictions are intended to answer. But inasmuch as fictitious persons are of widely differing natures, and inasmuch as the ideas which they denote are for the most part extremely complex, I deferred all further consideration of them till I should descend to the detail of the science. Having considered the import of person, I proceed to the significations of Thing, Act and Forbearance. Things are such permanent objects, not being persons, as are sensible or perceptible through the senses. Or (changing the expression) things are such permanent external objects as are not persons. Such (for example) is a field, a house, a horse, a garment, a piece of coined gold. Such is a quantity of coined or uncoined gold, determined or ascertained by number or weight. Such is a quantity of cloth, corn, or wine, determined or ascertained by measure. Things are opposed, on the one hand, to persons themselves; and are contradistinguished, on the other, from the acts of the persons, and from the rest of the transient objects which are denominated facts or events. Things resemble persons in this: That they are permanent external objects; or objects which are permanent, and sensible or perceptible through the senses. They differ from persons in this: That Persons are invested with rights and subject to obligations, or, at least, are capable of both: Things are essentially incapable of rights or obligations; although (by a fiction) they are sometimes considered as persons, and rights or obligations are ascribed or imputed to them accordingly. They resemble facts or events in this: That they are incapable of rights or obligations. They differ from facts or events in this: That things are permanent external objects; whilst facts or events are transient objects, and consist of |