CHAPTER VIII. The elements ANALYSIS OF A RIGHT. WE have seen that a 'moral right' implies the existence of certain circumstances, with reference to which a certain course of action is viewed with general approbation, and the contrary course with disapprobation; that a 'legal right' exists where the one course of action is enforced, and the other prohibited, by that organised society which is called 'the State.' We have next to consider more particularly what is the of a right. character of those elements from which a Right results. They are (1) A person in whom the right resides' or who is 'clothed with the right,' or who is benefited by its existence. (2) In many cases, an object over which the right is exercised. (3) Acts or forbearances which the person in whom the right resides is entitled to exact. (4) A person from whom these acts or forbearances can be exacted; in other words, against whom the right is available; in other words, whose duty it is to act or forbear for the benefit of the subject of the right. The series of elements into which a Right may be resolved CHAP. VIII. is therefore: The Person The Object. entitled. The Act or Forbearance. The Person of four terms. It will be observed that the first and the last terms of the A series series are a person. The second term is the object of the right (whether it be a physical thing, or what the law chooses to treat as such) if any (for there exist large classes of rights which have reference to no object, either physical or assimilated to such); and the third term is made up of the acts or forbearances to which the person in the fourth term is bound. termin It will be convenient to call the person entitled 'the per- Proposed son of inherence'; and the person obliged, 'the person of ology. incidence.' The intermediate terms may be shortly referred to as 'the object' and 'the act' respectively. That this series is no technical abstraction but a simple formula for the representation of the indisputable elements of a right, may be more apparent from an example. A testator leaves to his daughter a silver tea-service. Here the daughter is the 'person of inherence,' i. e. in whom the right resides; the tea-service is the 'object' of the right; the delivery to her of the tea-service is the act' to which her right entitles her; and the executor is the 'person of incidence,' i. e. the person against whom her right is available. Or take an example of a right where, as we stated to be often the case, the second term of the series is wanting. A is B's servant. Here B is the 'person of inherence,' reasonable service is the 'act' to which he is entitled, and A is the 'person of incidence,' against whom the right is available. The nature of the right varies with a variation in any one of the four terms which are implied in it, and the variations in the nature of the right give rise to the main heads or departments of law. CHAP. VIII. Facts. Person. The preceding analysis of the nature of a right implies the ideas of 'Person,' 'Thing,' and 'Act.' These are the permanent phenomena of a right; its statical elements. A right, conceived of as at rest, postulates a Person of inherence and a Person of incidence; Acts to which the former is entitled, and which the latter is obliged to perform; and often, though not always, an Object or Thing. But if the right is put in motion, phenomena of a new kind intervene. They are shifting, dynamical, and may be expressed by the general term 'Facts'; under which are included, not only the 'Acts' of persons, but also the 'Events' which occur independently of volition. It is, as we have seen, by Acts' that rights are enjoyed. And we shall see that it is through the agency of 'Acts' or of Events' that rights are created, transferred, transmuted, and extinguished. In order therefore to understand, not only the nature of a right and the mode of its enjoyment, but also the manner of its creation, transfer, and extinction, it is necessary to acquire clear ideas of the full meaning of the following terms: I. Person. II. Thing. III. Fact, under which term are included Event, Act, of omission as well as of commission. With reference to the important term 'Act' it is necessary to consider the relations of the will to its conscious exertion and its expression. It will also be necessary to classify acts. I. A Person' is often defined as being the 'Subject, or Bearer, of a right';' but this is to narrow the significance of the term. Rights not only reside in, but also are available against, persons. In other words, there are persons of 1 E. g. Savigny, System, ii. p. 1; Puchta, Inst. ii. p. 291. incidence as well as of inherence. Persons are the subjects CHAP. VIII. of Duties as well as of Rights. In persons rights inhere, and against them rights are available. For the benefit of persons duties are created, and it is on persons that duties are imposed. Persons, i. e. subjects of Rights or of Duties, are in general human beings; but, in imitation of the personality of human beings, the law recognises certain groups of men or of property, which it is convenient to treat as subjects of rights and duties; as Persons in an artificial sense. : persons. 1. A 'natural,' as opposed to an 'artificial,' person is such Natural a human being as is regarded by the law as capable of rights or duties in the language of Roman law as having a 'status.' As having any such capacity recognised by the law, he is said to be a person, or, to approach more nearly to the phraseology of the Roman lawyers, to be clothed with, or to wear the mask (persona) of legal capacity 1. Besides possessing this general legal capacity, or status, a man may also possess various special capacities, such as the 'tria capita' of liberty, citizenship, and family rights. A slave having, as such, neither rights nor liabilities, had in Roman law, strictly speaking, no 'status,' ' caput,' or 'persona.' On the day of his manumission, says Modestinus, 'incipit statum habere, So Theophilus: οἱ οἴκεται ἀπρόσωποι ὄντες ἐκ τῶν προσώπων τῶν οἰκείων δεσποτῶν χαρακτηρίζονται; and we read in the Institutes 'servus nullum caput habuit.' It must however be remembered that the terms 'persona' and 'caput ' were also used in popular language as nearly equivalent to 'homo,' and in this sense were applied to slaves as well as 1 Cf. Cic. de Off. i. cc. 30, 32. The equivalent of 'persona' in the Institutes of Theophilus is πρόσωπον. 2 Dig. iv. 5. 4. ' iii. 17; cf. ii. 14. Servos quasi nec personam habentes.' Nov. Theod. tit. 44. Servos qui personam legibus non habebant.' Cassiodor. Var. vi. 8. Ὁ δοῦλος παρὰ τοῖς νόμοις ἀπρόσωπός ἐστι, τουτέστιν οὐδὲ δοκεῖ ζῆν ἢ ἀπεῖναι. 1i. 16. Theodor. Herm. vii. 6. 4 CHAP. VIII. to freemen1. Many writers have supposed that Roman law recognised, besides the 'tria capita' which they distinguish as 'status civiles,' innumerable varieties of status, depending upon age, health and similar circumstances, which they describe as status naturales.' This view finds now little favour 2; but the modern employment of the term 'status' in this flexible sense, apart from any supposed authority for it in the law of Rome, is both common and convenient. It is true to say that 'unus homo plures sustinet personas,' i. e. one individual may be clothed with different kinds of legal capacities3. A natural person is therefore well defined as 'homo cum statu suo consideratus 4.' Character. istics of. A natural person must combine the following characteristics: (1) He must be a living human being, i. e. (a) he must be no monster5; (b) he must be born alive (vivus)6; though not necessarily capable of continued existence (vitalis)7. But for certain purposes existence begins before birth. 'Qui in utero est perinde ac si in rebus humanis esset custoditur, quotiens de commodis ipsius partus quaeritur,' says Paulus. So Blackstone: An infant in ventre sa mere is supposed to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have an estate assigned to it ; and it is enabled to have an estate limited to its use, and 1 Cf. Cic. de Off. i. 30-34; De Orat. ii. 24; Gai. Inst. i. 9; Dig. iv. 5. 3, 1. 17. 22. 2 Cf. Savigny, System, ii. Append. p. 445; Baron, Pandekten, i. p. 47. 3 Tres personas unus sustineo.' Cic. de Orat. i. 40. 'Status' is defined by Heineccius as 'qualitas cuius ratione homines diverso iure utuntur,' Recit. i. tit. 3; and 'persona' by Mühlenbruch as 'potestas iuris, sive facultas, et iurium exercendorum et officiorum subeundorum, hominibus iure accommodata et quasi imposita.' Doct. Pand. ii. 1. Cf. Austin, Lect. xl, xli. Dig. i. 5. 14, 1. 16. 38; Cod. vi. 29. 3; Co. Litt. 7 b, 29 b. Dig. 1. 16. 129. 7 Dig. xxv. 4. 1, 1. 16. 129; but see Code Civil, art. 725. Dig. i. 5. 7. A curator ventris' might be appointed to look after its interests. Dig. 37. 9. |