Abbildungen der Seite
PDF
EPUB

language of our constitutions in guarding the inalienable right, as they do, of acquiring possessing and protecting property, we are led to believe that the legal right is separate and distinct from the tangible object of the right, viz., the land or chattel.40

41

§ 19. Right of Suffrage.-Among the privileges and immunities guaranteed by the constitution is the civil right of suffrage, which, it is said, is within the meaning of the general word "liberty" of the citizens." It would not seem that the right of suffrage is upon an equal plane with the right of liberty, although it has equal protection under our laws. "Outside of society and disconnected with government, no person either has or can exercise the elective franchise as a natural right, and he only receives it upon entering the social compact, subject to such qualifications as may be prescribed. . . . . The right to vote is not vested; it is purely conventional, and may be enlarged or restricted, granted or withheld at pleasure, and with or without fault."42 Each state, as a part of its sovereignty, may confer such right of citizenship, so long as it does not conflict with the federal constitutional guaranties which forbid discrimination on account of race, color or previous condition of servitude.43 The right to vote is one of the important rights of citizenship, and any wrongful interference by persons intrusted with the duty of supervising the exercise of the right will result in an actionable wrong."

§ 20. Rights in Personam and in Rem.-While we follow Blackstone in many of his divisions of the law,

40 See c. 34, sec. 524, "Trespass," post.

41 Andrew's American Law, 607. See Van Valkenburg V. Brown, 43 Cal. 43, 13 Am. Rep. 136.

42 Blair v. Ridgley, 41 Mo. 63, 97 Am. Dec. 248, and note.

43 In re Wehlitz, 16 Wis. 443, 84 Am. Dec. 700.

44 See sec. 520, post.

because we believe him to have, in the main, grasped the fundamental principles upon which our law has developed, and based its rule, still with regard to his use of the terms "rights in personam" and "rights in rem," we are compelled to depart from his learned treatise. We do not contend that there is no division of law into parts, one of which relates to persons, and another to things. We do maintain that there is no separation of rights into rights of persons and rights of things. If we take these phrases to indicate the subjects of rights, that persons and things may both own or possess, and therefore be entitled to enforce rights, the proposition seems absurd upon the statement. On the other hand, it is repugnant to our ideas of liberty that we should have any rights over other persons, though we may have rights over things including acts of other persons.

If we divide law into law of persons and law of things, it will be found that, far from being complementary parts of our whole, they are but cross-divisions of the same body of rules.45

These terms "rights in rem" and "rights in personam"-have been used by later writers to indicate a true division of rights which are in every way complementary, one to the other. By rights in rem is now embraced those rights which are available against the whole world, or at least, an indeterminate portion thereof. By rights in personam are indicated those which are available against a particular or definite person or body of persons.

In the class last mentioned are found all contractual obligations; and in the other nearly all the rights whose breach constitutes torts. By Pomeroy the first class has three "genera": "1. Rights of property of every degree and kind over lands and chattels, things 45 Holland on Jurisprudence.

real or things personal; 2. The rights which every person has over and to his own life, body, limbs and good name; 3. The rights which certain classes of persons -namely, husbands, parents and masters-have over certain other persons standing in domestic relations with themselves-namely, wives, children, and servants and slaves."46 The second class he divides into two "genera": "1. Rights arising from contract; and 2. Rights arising, not from contract, but from some existing relation between two specified persons or groups of persons, which is generally created by law."47

The rights embraced in the three "genera" of the first class and the last one of the second class are the basis for the law of torts, and the first division of the second class is the foundation for the law of contracts. It remains to be noted that the third division of the first class and last division of the second class arise out of the same relations, which create not only rights to be respected by the world in general, but also rights against those particular members constituting the opposite occupants of the relation. These last rights in personam form so small a class that it is of little use to employ the division of rights into in personam and in rem as a method of classifying torts.

In one instance, however, the division is useful as an aid, and this is in the investigation of the character of an act to determine whether it is a breach of contract, a tort or both. A right in personam of the contractual genus as well as of the relative sort may create rights in rem, and an act which constitutes a breach of one may be a breach of the other. When this occurs the act may be treated as a tort or breach of contract.

46 Pomeroy's Equity Jurisprudence, sec. 94. 47 1 Pomeroy's Equity Jurisprudence, sec. 95.

This subject is more fully discussed elsewhere, and we cannot do more than illustrate the principle. Let us suppose, as a familiar instance, that a telephone company has contracted to furnish to a business house a telephone, and to maintain it for a certain length of time. Here is created in the proprietor of the business house a right in personam against the company-i. e., a right to allow the telephone to remain undisturbed in the house. A right in rem also arises against the world, including the company, not to disturb the enjoyment of the telephone by the proprietor. Suppose, however, the telephone company willfully severs the wires connecting the telephone with the exchange, before the expiration of the contract, and without just excuse. Here we may see that not only have they infringed the right in personam created by their contract, but also the right in rem arising by the same contract.

While we thus show an appreciation of the modern notions of rights, though the meaning ascribed to "rights in personam," and "rights in rem," seems somewhat arbitrary, still we have followed Blackstone's division of rights in the structure of this work, as appears in the Table of Chapter Headings, it having been the mold upon which American law was formulated.

« ZurückWeiter »