« EdellinenJatka »
ing into the inquiry as to the historical origin of the term, as to which see note 7 to chapter 2 of this book, ante, page 40.
I have expressed elsewhere my opinion as to the reasons that led Blackstone deliberately to reject all the civilian distinctions based on the difference of remedies in rem and in personam, and it is enough to say here that he would have been inconsistent with his plan, in choosing that definition. The one he adopts was perhaps the most important trait, when he wrote, of personal property in general, though it is of modern origin, and therefore unknown to the Roman law. It appears to have originated with the writers on the "conflict of laws" or Private International Law, who express it in the form mobilia ossibus inhærent or mobilia legibus domicilii judicantur. (See Story, Conflict of Laws, 22 377-379.) It is founded on the character of personal property as movable, which is by no means fully conclusive as a test, and has become of less importance since Blackstone wrote.
It is now very generally held that personal property may have its own situs. The right of a state to tax it, when within its jurisdiction, even though it may be taxed also in the owner's domicile, is distinctly affirmed in Coe v. Errol, 116 U. S. 517; and for many other purposes the lex rei site is now extended to it.
It should be noticed that Blackstone does not use the term "property" for the things, but for the ownership or title to the things which constitute personal property in the modern sense. He treats in this chapter of property in the recent sense, and in the next of "property in things personal." The word itself is ambiguous, as Mr. Smith long ago pointed out (Real and Personal Property, p. 1; and compare Austin, ii. 816, 836), and leads to the same confusion of thought as that by which "tenements," " hereditaments," and other things real have been mixed up with the "estates " in them,
as shown in a previous note. The same confusion now lurks under the antient common-law distinction of "things in possession" and "things in action," and if it has not led Blackstone himself into a false classification (see note 76 to page 397), it has certainly sent some of his critics and improvers astray when they try to combine it with the distinction of things corporeal and things incorporeal, "objects of the sense and mere rights," in order to cover the forms of personal property, of which the common law knew nothing. (E. g., Schouler on Personal Property, 2 11.) Kent's designation of things in action as quasi tangible (2 Com. 340, n.) is much nearer the true notion. Wooddesson long ago pointed out that the two terms corresponded to the jus in re, jus ad rem, of the civilians, except that the latter was a distinction of rights (jura), and the common law expresses it as a distinction of the objects of rights, the things themselves. (2 Lectures, 235.) This last point must not be lost sight of in discussing our own law. It deserves attention, because some recent attempts to improve on Blackstone's classification of things personal seem to rest on the assumption that things in action and things incorporeal are of the same nature, or the one only an extension of the other. This leads to another great mistake-the identification of the thing in action with the right to the thing, which appears in so many forms in recent books, and even in the new codes of New York and other states. (N. Y. 1885, 22 502, 503.) The proof seems easy: all choses in action are jura incorporalia; all rights to things are jura incorporalia; therefore all choses in action are rights to things. Not only is the syllogism fallacious, but the first premise is also untrue. Whether in possession or in action, the thing or chose is always the object of a right, and not the right itself.
Blackstone never treats a chose in action as a mere right or title to choses in possession, or to other prop
erty, as it is so frequently regarded now. It is to him distinctly a kind of property, not of right to property. This is implied in his entire treatment of the subject, beginning with the first statement of the distinction in chapter 25, and carried out in his enumeration of the various titles to personal property, which are all placed in the same series and on the same level, whether they give title in possession or in action, as in chapter 30.
It need hardly be pointed out that this is inconsistent with any distinction between rights in rem and in personam. If he had intended to deny the existence of any such distinction in English law, he could hardly have done so more plainly. For example, in this chapter, 30, the gift or grant transfers a title in rem, the property in the chattel or the chattel itself in possession ; but the contract, as he himself says, gives property in action only, or in civilian terms rights in personam, obligations, or at the most rights ad rem. I cannot believe that Blackstone did this without being fully aware of its meaning. He saw that the common law recognized no such distinction between rights in rem and in personam as was fundamental in the civil law. This is more commonly stated in a different form,by saying that the common law recognized no right in rem to chattels. But this is not quite accurate. Property in chattels is not protected by so elaborate a system of actions as that in land was, while the real actions were in use, but it was essentially of the same nature where it existed. The most important difference was that property in land depended on seisin, which was very rigidly defined, while property in chattels might pass from one person to another without delivery of possession and even without formal act or writing of any kind.
Savigny has pointed out very clearly, in his system (2 56, Bd. 1, pp. 371-375), that the distinction of jura in rem and jura in personam, or of property and obligations, can only be fully carried out where actions in
rem and in personam are kept distinct, and each preserved in its purity-and that when this is not done property rights may become merely the incidents of obligations (as in Domat's treatment), or obligations be treated as merely the mode of acquiring property rights. The latter condition seems to have been the primitive one in English (Germanic law) and justifies Blackstone's studied disregard of the division of rights themselves as above.
Mr. Williams (Personal Property, p. 4) was the first modern writer, I think, to point out the true nature of the "chose in action," after judges and authors had long been trying to decide whether notes and bills, bank-stock, and other shares, etc., were in action or in possession by the mere test of assignability. Whether he is right in saying that incorporeal hereditaments were the only res incorporales known to the common law or not, must be discussed apart; but he is certainly right in saying that res incorporales, as such, were not choses in action. The latter always implied choses in possession: a thing in action was, so to speak, the complement, the shadow of the thing in possession, and it was a thing in action, because the very purpose of an action was to make of it a thing in possession, to the proper owner. But this was equally true whether the thing itself was corporeal or incorporeal.
It may be true, as Mr. Williams and others have said, that the common law originally dealt with tangible chattels only, and knew nothing of res incorporales except in the form of incorporeal hereditaments (Personal Property, p. *2), yet we must not suppose this crude state of legal conceptions to have governed the formation of such a term as "chose in action." The date at which that term made its appearance could not have been before Bracton, for it was by him that the word "action" was introduced into English law. But Bracton and his contemporaries were familiar with the notion
of res incorporales. No man of clerical education or of training in the civil and canon law could have been otherwise in the middle ages. Moreover, the word "chose" is of itself a sufficient proof that tangible things were not the only ones then regarded. The identification of this word with causa (Lat.) is philologically certain, however different the meaning of the two afterward became; and neither causa nor res could ever have been used by an educated man for tangible things only. The chose in possession itself was not necessarily then a tangible object. Beside incorporeal hereditaments, the law was full of terms denoting mere abstractions which might be possessed, sued for, transferred. The very expressions do ut facias, etc., which Blackstone has copied from Bracton, are sufficient to show that something to be done (i. e., a mere act or prestation in civilian language), was a chose as well as something that could be given. The actions of debt and detinue, originally one, differentiated themselves as the object was a corporeal or incorporeal thing: though in both alike this object was a chose in action to the plaintiff, a chose in possession to the defendant. Whether freehold or chattel, corporeal or incorporeal, when "they are things whereof a man is not possessed, but for recovery of them is driven to his action, they are called things in action." (Termes de la Ley, sub voce.)
It is not inconsistent with this that in the great majority of actual cases, the familiar actions by which most men's notions of law are formed, the thing in possession was a tangible chattel, the thing in action a mere abstraction; but an abstraction, be it remembered, of that chattel, not of the right to it. It is probable, too, that as the middle ages with their realism gave place to later modes of thought, there was a tendency to limit the term "possession " to tangible objects, and to disregard abstractions generally. "Things"