nection meant law, is perfectly clear; but that the expression used by Lord Hale, and followed by Blackstone, was ignorantly used, without a clear understanding of the meaning of the words used as qualified by them, is not at all apparent.

Christian, in notes to Blackstone's Commentaries, at this point says: "But the distinction of rights of persons and rights of things in the first two books of the Commentaries seems to have no other difference than the antithesis of the expression, and that, too, resting upon a solecism; for the expression rights of things or the right of a horse is contrary to the idiom of the English language. We say invariably a right to a thing. The distinction intended by the learned judge in the first two books appears in a great degree to be that of the rights of persons in public stations, and the rights of persons in private relations" (18).

Walker, in his treatise on American Law, says in regard to the primary division of legal subjects into rights of persons and rights of things: "Private wrongs and public wrongs. These expressions do not on their face indicate that remedies are to enter into the discussion; moreover the phrase 'rights of things' by itself conveys no definite idea, since all rights are rights of persons, i. e., they belong to persons, though they may have relation to other things" (19).

Judge Cooley says all individual rights are, or must be, rights of persons. They may be rights which concern

18 Sharswood's Blk. 1, 122, note.

19 Walker's American Law.

their personal safety or liberty, or they may be relative rights pertaining to them as members of families or civil or political societies, or they may be rights to possess and enjoy animate and inanimate things. To speak of the right of things, though correct enough in the sense which it is hereafter explained, is likely to convey inexact ideas and is therefore misleading. By "rights of persons" we are likely to understand rights which belong to and are possessed by persons, but in that sense there could be no rights of things (20).

§ 61. Austin's misstatement of Blackstone's meaning. Austin says: But the distinction, as explained in the cited places, is not only founded upon a misapplication of language, and thereby involves the subject in obscurity; it is also inconsistent with the subsequent exposition which he gives of these same rights. According to the terms of the distinction, the rights of persons are such rights as men have to their own persons or bodies, freedom from bodily harm, etc., so that all such rights as a man may have in, over and to external objects (whether to other persons or things) ought, in pursuance to the same distinction, to have been excluded from the rights of persons and treated of nowhere but under the rights of things.

He instances husband and wife, father and child, as such rights as a man may have over external objects. In consequence of his misapprehension of the term "rights of persons," he has treated (Book I, chapter 1) rights to life, reputation, etc., with the obligation to 201 Cooley's Blk. (4th ed.), 122.

respect them, under the rights of persons, although, as being common to every status, it is manifest that they belong to the rights of things (21).

It is plain that Austin has not expressed the meaning of Blackstone's qualifying phrases. Blackstone does not say rights of persons are such as men may have to their own persons, but "which concern and are annexed to the persons of men."

No

§ 62. Different views of Blackstone's meaning. better illustration of the confusion of ideas conveyed by the words of Blackstone, as contained on pages 122 and 123 of volume I of the Commentaries, can be given than will be found by comparing the notions of the meaning as given by the notes to those pages by Walker, Christian, Cooley and Austin with each other, and then with the explanation given by Prof. Hammond. The conclusions are quite different from each other, and each is different from the idea expressed by Prof. Hammond; the latter has expressed the meaning intended.

Let us compare briefly these notions.

Mr. Christian takes it that the distinction between rights of persons and rights of things commented upon in the first two books, is the difference between persons in public stations and in private relations. This is not correct, as will be seen by turning to the analysis as found in any edition of the Commentaries. It will be seen that the public relations are magistrates and people, and the private relations are master and servant, hus

21 Austin's Jur., 762.

band and wife, parent and child, guardian and ward. These, with the subject of corporations, are all embraced within the expression "rights of persons," and actually treated in Book I; while under the title-head "Rights of Things," in Book II, is treated the subject of "Property."

Mr. Walker understands that the phrase "rights of things" conveys in itself no definite idea (22).

Mr. Justice Cooley sees the matter as explained clearly enough, but he adds: "The language used is likely to convey inexact ideas, and therefore be misleading,” adding: “By 'rights of persons' we are likely to understand rights which belong to and are possessed by persons," and that "in that sense there can be no rights of things." But, as we shall see, of possession, or belonging to, is not quite correct. The idea of Hale and Blackstone in reference to rights of persons is the difference in the conditions of men and rights depending thereon.

Professor Austin understands that "Blackstone's 'rights of persons' are such rights as men may have to their own persons or bodies."

Professor Hammond says Blackstone does not deserve the criticism and ridicule that has been spent on his sup

22 Walker says: "A treatise, therefore, upon municipal law, is for the most part, a treatise upon rights and remedies, or upon wrongs and remedies, as one may choose to express it; and it suggests a remark upon Blackstone's primary division of legal subjects into rights of persons, rights of things, private wrongs, and public wrongs. These expressions do not on their face indicate that remedies are to enter into the discussion, Moreover, the phrase 'rights of things,' pura rerum, by itself conveys no definite idea, since all rights are the rights of persons; that is, they belong to persons, though they may have relation to other things." Walker's Am. Law, p. 47.

posed mistakes, and asserts that in this passage he states, as clearly as any of his critics have done (23), that things are the objects and persons the subjects of rights (24).

The learned editor then submits eight pages of notes in explanation of Blackstone's meaning of these Latin expressions taken from the Roman law, and the English equivalents given by him, in which he shows clearly:

First. That the idea intended by Blackstone was different from that conveyed by the Latin expressions jura personarum and jura rerum.

Second. That the idea expressed by "rights of persons" and "rights of things," standing alone, did not convey to the English reader the idea intended by the author.

Third. That Blackstone had a definite idea which he intended to express by these words, and that the explanatory words did express the true meaning; and it is gratifying to find that Professor Hammond has given an explanation of the meaning of the expressions intended by Blackstone which seems reasonable and useful as applied to English jurisprudence.

Blackstone's explanation. What is the explanation given by Blackstone? All that there is, is found in the qualifying phrases following. "Rights of persons," he says, "are those which concern and are annexed to the persons of men; secondly, rights of things are such as a man may acquire over external objects or things unconnected with his person" (25).

23 The critics have not explained at all.

24 1 Hammond's Blk. 330.

25 The use of the two words objects and things render the phrase indefinite.