LECT. XIII

Distinction between

jura rerum and jura

briefly

I shall take this occasion of recalling your attention to the double meaning of persona in the Roman law as signifying, sometimes a physical or real person, and sometimes a status or condition: for the purpose of observing that the personarum last acceptation of persona, combined with that of res as introduced. denoting in certain cases rights and obligations, throws considerable light on the celebrated distinction between jus rerum and jus personarum; phrases which have been translated so absurdly by Blackstone and others-rights of persons and rights of things. Jus personarum did not mean law of persons or rights of persons, but law of status or condition. A person is here not a physical or individual person, but the status or condition with which he is invested. It is a remarkable confirmation of this that Gaius, in the margin, purporting to give the title or heading of this part of the law, has entitled it thus, De conditione hominum: and Theophilus, in translating the Institutes of Justinian from Latin into Greek, has translated jus personarum—ǹ Tŵv πроσπшν diαíρεσus-Divisio personarum : understanding evidently by persona or прóσwоν not an individual or physical person, but the status, condition, or character borne by physical persons. This distinctly shows the meaning of the phrase jus personarum, which has been involved in impenetrable obscurity by Blackstone and Hale. The law of persons is the law of status or condition: the law of things is the law of rights and obligations, considered in a general manner or as distinguished from those peculiar collections of rights and obligations which are styled conditions, and considered apart.

From the same ambiguity arose the mistake of supposing that jura in rem must have something to do with things; whereas the phrase really denotes rights which avail generally as distinguished from those which avail only against some determinate individual.

LECTURE XIV.

ACT AND FORBEARANCE: JUS IN REM-IN PERSONAM.

LECT. XIV IN the last Lecture, I entered upon the analysis of the term

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 meaning

of those several related expressions, before I could address LECT. XIV myself immediately to rights and their corresponding duties. Accordingly, in the last Lecture, I considered the term 'Person,' and the term 'Thing.'

In the present Lecture I shall point at the respective significations of 'Act' and 'Forbearance,' and shall consider briefly an important distinction which obtains between rights themselves :-A distinction of which we must seize the general scope or import, before we can understand, and can express adequately and correctly, that nature or essence which is common to all rights.

Persons and Things are objects external and permanent. Persons and Or, persons and things may be distinguished from other Things. objects, in the following manner :

1st. A person or thing is a sensible object, or an object perceptible by sense.

2ndly. A person or thing is perceptible repeatedly, or is capable of recurring to the sense.

3rdly. A person or thing recurring to the sense is considered by him who repeatedly perceives it as being, on those several occasions, one and the same object.

tinguished.

Things are such permanent external objects as are not Persons and Persons; that is to say, as are not physical or individual Things dispersons; as are not men (in the largest signification of the term); or (using the term 'men' in its narrower import) as are not men, women, or children.

Facts, Events, or Incidents may be distinguished from Per- Events. sons and Things in the following manner. 1st. Every person or thing is a sensible object. Of events, some are perceptible by sense; but some are determinations of the will, or other affections of the mind.

2ndly. Every person or thing is a permanent sensible object. But an event perceptible by sense (like every other event) is transient. That is to say, an event perceptible by sense, is not perceptible repeatedly. It exists for a moment: Then, ceases to exist: And never recurs to the sense, although the memory may recal it.

Events are simple, single, or individual; or they are complex. A simple event is incapable of analysis; or is considered incapable of analysis. A complex event is a number of simple events, marked (for the sake of brevity) by a collective name. The importance of this distinction will appear clearly, when I consider events more in detail:

Events are simple or

complex.

LECT. XIV especially, when I consider them as causes of rights and duties, and of the termination of rights and duties.

Import of 'fact' and 'incident.'

Acts and
Forbear-
ances.
Act.

Before I proceed to the terms Act' and 'Forbearance,' I will offer a brief remark upon the terms which are now in question.

The terms fact' and incident' are sometimes synonymous with the term event.' But, not unfrequently, 'fact' is restricted to human acts and forbearances, and 'incident' employed in a sense to which I shall advert hereafter. Consequently, the objects which I am endeavouring to distinguish from persons and things, are best denoted by the term events.' 'Event' is adequate and unambiguous: It will always apply to any of the objects in question. ‘Fact’ and incident' are ambiguous. Taken in one signification, each of them will apply to any of the objects in question. Taken in another signification, it applies exclusively to events of a class.

The only class of events to which I advert at present, are human acts and forbearances.

Now human acts or actions are internal or external.41 In other words, they are not perceptible by sense, or they are perceptible by sense. Internal acts are determinations of the will. External acts are such motions of the body as are consequent upon determinations of the will. Determinations of the will, and such motions of the body as are consequent upon determinations of the will, are (I conceive) the only objects to which the term 'act' can be applied with propriety. It is scarcely applicable to those motions of the body which are involuntary: that is to say, which are involuntary (in the large acceptation of the term), or are not consequent upon determinations of the will. if (for example) you plunged into the water purposely, the motions of your body consequent upon the act of your will would be considered an act, or a series of acts. But if you fell into the water without design, the descent of your body into the water would hardly be styled an act, although it would be called an event.

Nor is the term 'act' applicable to those affections of the mind which are frequently styled passive: that is to say, which are not determinations of the will. Whether it will

41 But observe the correction (p. 433. post) of the terminology used here. It will there be seen that the author on further reflection adopts the phrase determinations of the will' as sufficient

to denote what are here termed 'internal acts,' and restricts the meaning of the term acts' to denote what are here termed 'external acts.'-R. C.

·

6

apply to these, without a solecism, seems to be doubtful. LECT. XIV But we certainly read and hear of acts of the will;' and I think that the term may be extended to determinations of the will, consistently with general usage. At all events, I shall take leave to consider them as belonging to the class of acts: styling them, by way of distinction, acts of the will,' or acts internal.'

A Forbearance is a determination of the will, not to do Forbearsome given external act. Or (taking the notions which the ance. term includes in a different order) a forbearance is the not doing some given external act, and the not doing it in consequence of a determination of the will. The import of the term is, therefore, double. As denoting the determination of the will, its import is positive. As denoting the inaction which is consequent upon that determination, its import is negative. This double import should be marked and remembered. For mere inaction imports much less than forbearance or abstinence from action.

In popular and loose language, a culpable forbearance (or a forbearance which is a violation of some law or rule) is not styled a forbearance,' but is ranked with omissions. But an omission (properly so called) is widely different from a culpable forbearance. A culpable forbearance is an act of the will, or supposes an act of the will. An omission is not the consequence of an act of the will, but of that state of the mind which is styled 'negligence,' and implies the absence of will and intention. Accordingly, I apply the term 'forbearance' to all voluntary inaction, or to all inaction which is consequent upon volition. Those forbearances which are violations of laws or rules, may be styled, by way of distinction, unlawful, unjust, or culpable.

,

And here I dismiss for the present the terms 'Act' and 'Forbearance.' Before we can settle the import of these expressions, we must settle the import of the term Will, and of the inseparably connected term 'Intention.' But these I shall consider (in conjunction with 'Negligence and Rashness') when I endeavour to determine the nature of Injuries' and 'Sanctions;' and to distinguish the compulsion and restraint which are styled 'Obligation,' from the compulsion and restraint which operate not upon the will, and may be styled 'merely physical.'

tion to the

From Persons, Things, Acts and Forbearances, I proceed Introducto analyse, in a general and concise manner, an important Distinction distinction which obtains between Rights, and between the between jus

in rem and

LECT. XIV duties or obligations which are implied by rights. But in order that you may follow this analysis with greater ease, I jus in per- introduce it with the following assumptions, and with the following explanatory remarks. The truth of the assumptions will be proved hereafter. I introduce them here for

sonam.

the purpose of facilitating apprehension.

1st. External Acts and forbearances (or, briefly, Acts and Forbearances) are the objects of duties. Changing the expression, the ends or purposes for which duties are imposed are these: that the parties obliged may do or perform acts, or may forbear or abstain from acts. The acts or forbearances then to which the obliged are bound, I style the objects of duties.

2ndly. The objects of relative duties, or of duties which answer to rights, may also be styled the objects of the rights in which those duties are implied. In other words, all rights reside in persons, and are rights to acts or forbearances on the part of other persons. Considered as corresponding to duties, or as being rights to acts or forbearances, rights may be said to avail against persons. Or, changing the expression, they are capable of being enforced judicially against the persons who are bound to those acts or forbearances. The acts or forbearances, then, to which these persons are bound, may be called the objects, not only of the duties themselves, but of the rights corresponding to these duties.

3rdly. Of rights, some are rights over things or persons, or in or to things or persons. Others are not rights over things or persons, or in or to things or persons. All rights over things or persons are of that class of rights which avail against persons generally, or (in other words) which avail against the world at large.

Of rights which are not rights over things or persons, some are of the class of rights which avail against persons generally. Others avail exclusively against persons certain or determinate, or against persons who are determined individually.

Where a right is a right over a thing, or (changing the shape of the expression) in or to a thing, I style the thing over which it exists the subject or matter of the right. I thus distinguish it from acts and forbearances, considered as the objects of rights.

Where a right is a right over a person, I also style the person over whom it exists the subject of the right. For a