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objects, and hence the laws of things (jura rerum) form the most extensive and important part of all systems of jurisprudence. (Gaii Com. i. 28; Justinian Inst. I. tit. 2,2 12; Hale's Analysis of Law, ?? 1, 23.)
The phrase jura rerum may be paraphrased "laws relating to the objects of a right," or "rights, considered in reference to their objects." It seems better to translate it "laws of things" than "rights of things," but neither expression is satisfactory. Blackstone uses the latter only in titles, and in his text is careful to explain it as "rights which a man may acquire in and to such external things as are unconnected with his person." This takes away all the point of Austin's very unfair criticism upon him (Prov. of Jur. pp. 294, 374, 715, 761), which has been repeated by Heron and many others.
A great deal of confusion has grown out of a misunderstanding of this passage in the Institutes, as if persons, things, and actions were intended to serve as rubrics for three separate divisions of the law. Austin is by no means free from it (see pp. 42, 706, etc.), and it is almost universal in the school of civilians whom he chiefly followed. This is the more remarkable because the error was very clearly pointed out by Duarenus, three hundred years ago. (Disp. Anniv. i. cap. 55, quoted in the appendix to Bocking's edition of Gaius. See Hammond's Introd. to Sandars' ed. of Justinian's Institutes, p. 33, n. 40.)
Another source of confusion is the ambiguity of the terms jura realia, jura personalia, with their translations in all the modern languages. The former is sometimes used as equivalent to jura rerum, sometimes as equivalent to jura in rem. (See Austin, p. 1011.) In neither sense are they equivalent to the English terms "real" and "personal," as to which see note 2 to book 1, page 335.
(3) The rights of dominion or property, page 1.
We commonly think of the right of property as exist
ing only with reference to specific objects, land, chattels, or at any rate things incorporeal but specific, like easements, rents, bank-stocks, etc. But the right of property without a specific object, concrete or abstract, plays a large part in the law, and should be clearly understood. In many cases where no specific property is involved, or where the right to all such property as is involved is indisputable, the cause of action is a wrong to the right of property. The plaintiff is defrauded not of any specific chattel, but of a sum of money or of a mere value.
We have no legal term of precise meaning for this thing, nor even one which distinctly includes it as does the civilian's vermögen. Goods, bona, as defined by some of the older writers, will cover it, but the ferm is rarely used now with any definite meaning.
Thus where B fraudulently compels A to pay a sum of money which B himself should properly pay, or without fraud A has to pay an accommodation note lent B, or where A recovers against B profits lost to the former by B's negligence or other breach of duty, in all these and similar cases it will be noticed that there is no specific property lost to the plaintiff, nor even a sum of money paid to any person who has not a perfect legal title to it. The damnum consists in a mere diminution of the plaintiff's entire fortune. He is so much poorer as a proximate consequence of B's wrong, although every dollar that he has paid out, or every chattel that he has parted with, has given rise to no action whatever. Yet his loss is none the less a positive one, the wrong none the less a breach of his right of property, than in the case where the damnum consists in the loss of a chattel as in trover or trespass de bonis asp. His right of action may be analyzed in the same way; he must show actual damnum proximately caused by a legal wrong or he cannot recover.
Much of the beginner's difficulty in properly classify2 BLACKST.-3.
ing rights of action, or in perceiving the uniformity of the principles which govern them, proceeds from overlooking the existence of the primary right of property in these cases, and the fact that the cause of action contains precisely the same elements as when a specific chattel is lost to the plaintiff.
An important practical distinction between the right of property with its generic object, or property in its generic sense, and the right to specific things, is that when we deal with the former we take into account debts and credits, and treat the resultant balance as the object of the right and of whatever disposition we make; while with the latter there is no such reckoning of other elements of property than those specifically dealt with. Thus a bequest of half one's stock of cattle carries the same object whether the testator is rich or poor, has cattle only or much beside, is in debt or out of it. (The possible interference of creditors in case of insolvency need not be taken into account here.) But a bequest of one third of one's personal property gives one third of the net amount arrived at by valuing all that the testator left in possession or in action and deducting therefrom all that he owed. It is the bequest of a pure abstraction. The same thing is said, in the Digest, xxxiii. 2, 43; xxxv. 2, 69.
(4) There are very few that will give themselves the trouble to consider the origin and foundation of this right [of property], page 2.
Most recent writers on law take the right of property for granted without any attempt to investigate its origin. The theory of writers on natural law assumes that the conception of property existed in its present form from the earliest stage of human thought. Consequently it does not discriminate between the two very different questions, the ethical ground or basis of private property, and the mode in which the institution
of property has actually been developed. In regard to the former question, it is enough here to say that the right to property is in the last analysis identical with the right to existence, since individual existence can only be maintained by constant appropriations from external nature, and by the occupancy of a place on the earth's surface. If, as Grotius and Puffendorf maintain, individual property must be derived to each person from the cession of his fellows of their original common rights, then the right of each to exist must depend upon joint consent. (For these theories the student may consult Grotius, de Jure Belli et Pacis, lib. 2, cap. 2, ?? 1,2; Puffendorf, de Jure Nat. et Gent. lib. 4, cap. 4, with the notes of Barbeyrac; 2 Locke's Works, p. 181, etc.; Treatise on Government, book 1, ch. 4; Rutherforth's Institutes of Natural Law, ch. 3; 3 Wilson's Works, pp. 179–198; Montesquieu, Esprit des Lois, liv. 26, cap. 15; Maine's Ancient Law, ch. 8; Schouler on Personal Property, pp. 1-24; J. S. Mill's Principles of Political Economy, i. 240.)
Recent students of ancient Aryan law have tried to show that the notion of property in land was originally a religious one. In the earliest times, they say, it was not the law which guaranteed the right of property, but religion. The proof depends chiefly upon the sacred character that undoubtedly in early Greek, Roman, Hindoo, as well as Hebrew law, attached to boundary marks, termini, etc. (See Laws of Manu, viii. 245; Varro, De lingua latina, v. 74; Pollux, ix. 9; Hesychius verbo ôgos; Plato, de Legg. viii. 842; Ovid Fast. ii. 677.) But when all law had a religious character, and the cominonest rules of human intercourse were placed under the sanction of religious penalties, these facts prove very little as to the origin of any particular rule or notion. As well show that marriage was first introduced as a religious duty, because we find it almost always accompanied by religious rites. Indeed the
argument for marriage might be made much stronger, since we find it one of the chief points of early religion to perpetuate the race in order to keep up the worship of ancestors and the family rites. (La Cité antique, par F. de Coulanges, translated by T. C. Barker under the title Aryan Civilization, etc., London, 1871. See on this point ch. 6, 7.)
Other theories of the origin of property have been so well stated by previous editors of the Commentaries that I need make no excuse for the following extracts from their notes:
"Mr. Locke says 'that the labor of a man's body and the work of his hands we may say are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property.' (On Gov't, c. 5.) But this argument seems to be a petitio principii; for mixing labor with a thing can signify only to make an alteration in its shape or form; and if I had a right to the substance before any labor was bestowed upon it, that right still adheres to all that remains of the substance, whatever changes it may have undergone. If I had no right before, it is clear that I have none after; and we have not advanced a single step by this demonstration." (Christian.)
The answer to Locke thus given is very effective, if we assume, as Professor Christian does (see below), that the right of property as now understood is a natural one, vested in every individual of the race as it would be now in a body of tenants in common. But this is not Blackstone's view, nor (I think) that of Locke. Christian is more effective in his criticism upon those who make property an institution of the social compact. "The account of Grotius and Puffendorf, who maintain that the origin and inviolability of property are founded upon a tacit promise or compact, and therefore