CHAPTER XI.

PRIVATE LAW: RIGHTS 'IN REM.'

THE great department of law, upon a detailed examination of which we are about to enter, may be most conveniently studied if we distinguish at the outset the main topics which are contained in it. These are to be ascertained by a successive application of the principles of division which were explained in a preceding chapter, in the order which seems best suited to the subject.

tive,

Private law, as thus treated, is either substantive' or Substan'adjective,' that is to say, it either defines the rights individuals, or indicates the procedure by which they are be enforced.

of adjective to

law.

abnormal

The rights dealt with by substantive law may be either Normal, 'normal' or 'abnormal,' as the persons with whom they are rights. connected are of the ordinary type, or deviate from it.

Both classes of rights are either antecedent' or 'remedial.' Antecedent, A right of the former kind, it will be remembered, is one subsequent which exists irrespectively of any wrong having been com- rights. mitted. It is an exceptional advantage granted to the person who is clothed with it. The devisee of a house in Middlesex,

Rights in rem, in personam.

CHAP. XI. or the merchant who has bought a cargo of rice, is, by virtue of being thus devisee or purchaser, in enjoyment of powers which are not possessed by the rest of the population. A right of the latter kind is one which is given by way of compensation when an 'antecedent' right has been violated. Antecedent rights are either 'in rem' or 'in personam'; that is to say, they are available either against the whole world or only against a definite individual. Thus the proprietary right of the owner of a house is good against all the world, while the right of a landlord to his rent is good only against his tenant. Remedial rights are most usually available only in personam,' though proceedings against a ship in the Court of Admiralty, or to obtain a divorce, are undoubtedly in rem,' as was the 'actio quod metus causa' in Roman law1. Ulpian pointed out that all interdicts, licet in rem videantur concepta, vi tamen ipsa personalia sunt 2. The distribution of the subject may be more shortly expressed as follows:

Order of study.

Adjective, providing for the protection of rights.

We shall begin with the consideration of the substantive law of the various species of normal rights. We shall then treat of the law of abnormal rights, and conclude with the topic of adjective law or Procedure.

Normal rights may be, as has been already explained, either Antecedent or Remedial, and rights of the former kind may be either 'in rem' or 'in personam.' The study of

1 Cum autem haec actio in rem sit scripta, nec personam vim facientis coerceat, sed adversus omnes restitui velit quod metus causa factum est.' Dig. iv. 2. 9. 8.

"Dig. xliii. 1. I.

Private law will naturally commence with an examination of CHAP. XI. normal antecedent rights in rem,' i. e. of rights which, irrespectively of any wrong having been committed, are available for the benefit of the person of inherence against a person of incidence so unlimited as to comprise the whole world. Rights of this kind are both numerous and important, and must be examined in due order.

A distinction is very generally drawn by German writers between what they call Urrechte' and 'erworbene Rechte 1.' Rights of the former kind, which are also said to be 'inborn,' 'fundamental,' inalienable,' 'natural,' 'immediate,' 'universal,' ' essential,' unconditional,' or 'absolute,' are such as every human being possesses independently of any act of his own; while rights of the latter kind, described also as 'derivative,' 'mediate,' 'alienable,' 'accidental,' or 'hypothetical,' are the result of some free act of the person entitled to them. The line between the two classes of rights is however so variously drawn, and must always be drawn subject to so many qualifications and reservations, that the distinction is of little value. We have called attention to it only as illustrating that graduated intimacy of relation between the right and its subject which we shall take as our guide in determining the order of the investigation upon which we are about to enter.

We shall begin with the right which is most closely connected with the personality of the individual entitled to it, and shall proceed to consider, one after another, those rights which are progressively less connected with his proper personality, and are more connected with the control which he is allowed to exercise over the actions of others, and with the advantages which he is allowed to derive from the world in which he lives 2.

1 'Officia et iura connata . . . acquisita.' Wolfius, Ius Naturae, Pars i. c. i; Röder, Naturrecht, i. p. 174; but see Savigny, System, i. p. 377.

2 On the essential difference between the right to personal safety and the right to property, see Brunsden v. Humphrey, 14 Q. B. D. 141. Cf. 'Dominus membrorum suorum nemo videtur.' Dig. ix. 2. 13. pr.

CHAP. XI. Classification of antecedent rights in

rem.

Personal safety.

Taken in this order, the rights of the class now under consideration be ranked as follows: may

I. To personal safety and freedom.

II. To the society and control of one's family and depen→

dents.

III. To reputation.

IV. To advantages open to the community generally; such as the free exercise of one's calling.

V. To possession and ownership.

VI. To immunity from damage by fraud.

In each case we shall have to consider not only the nature of the right in question, but also the character of the act by which it is violated, and the modes of its origination, transfer and extinction. Our illustrations will here, as elsewhere, be drawn chiefly from the law of England.

I. Rights to personal safety and freedom are the most widely enjoyed of any. They are possessed by every one who has not waived or forfeited them. They are acquired at the moment of birth, and are therefore said to be 'innate,' though they are limited, during the earlier years of life, by the right of parents and guardians to chastise and keep in their custody persons of tender age. Similar rights of custody, and even of chastisement, have been at various periods recognised also with reference to women. These rights are of course, from their nature, incapable of transfer. They may be partially waived. A person who engages in a boxing-match waives, by so doing, as against his antagonist, his right not to be assaulted and battered, and any complaint made by him in such a case would be well answered by the defence of 'leave and licence.' So a sailor who enters on board ship waives for the voyage his right to direct his own movements. An unlimited waiver of rights of this kind, such as a self-sale into slavery, or a self-dedication to monkish seclusion, though recognised in early systems of law, is discountenanced by modern civilisa

tion. They may be temporarily forfeited. In other words CHAP. XI. complaints founded upon a violation of them may be met by a plea of 'justification'; as in English law a complaint of assault is well answered by a plea of son assault demesne, provided always that the violence complained of is not out of all proportion to the violence first used by the complainant. They terminate with death. They are, in many cases, violated by acts exhibiting only that degree of will which is called negligence.

In enumerating the rights of this kind which are recognised in advanced states of society, it will be convenient to begin with those which have the widest extent, i. e. where the injury is an act of the slightest kind, and to proceed in order to rights more and more restricted in scope, i. e. where there is no injury unless the act is of a distinctly violent character, or is accompanied by actual damage.

1. A man has a right not to be even menaced by gestures, Menace. as by the shaking of a fist, the brandishing of a stick, or the presenting of a pistol. Such acts may however be deprived of any wrongful character, if the parties be so distant that no contact is possible 1, or if words are used showing that no harm is intended, as where a man laid his hand on his sword in a threatening manner, but said, 'If it were not Assize time I would not take such language from you 2.

2. A man has a right not to be touched, pushed, or struck Assault. in a rude or hostile manner. This right is not interfered with by one who is pushing his way gently in a crowd, or who touches his neighbour to attract his attention or gives him a jocular and friendly blow, or is duly executing legal process 3.

3. A man has a right not to be wounded or disabled, Wounding. whether by deliberate assault, or by negligence 4, such as that

of a reckless cab-driver, or of a railway company, which sends a train over a level crossing at an improper speed.

Cobbett v. Grey, 4 Ex. 744.

3 Williams v. Jones, Hard. 301.

2 Tuberville v. Savage, 1 Mod. 3.

4

Supra, p. 94.

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