This explanation may be clear to one who has spent years in the investigation of legal subjects, and who has thereby become possessed of so much learning as to be able to explain not merely the ideas actually conveyed by the words used, but to arrive at the ideas intended to be conveyed by the person using them; but the explanation will be found by the uninitiated only to add to the confusion, for the reason that the rights of persons are said to be those which are annexed to the persons of men, and there is no explanation anywhere afforded by him of any distinction between the word "persons" and the word "men;" and the rights of things are confined to those which a man may acquire to external things; while he immediately points out that there are artificial persons that are not men, and yet may and do enjoy the right of things. Indeed, we have seen that three learned men, viz., Walker, Christian and Austin, have failed to get the true meaning as explained by Professor Hammond, which is submitted below.

§ 63. The law of persons in English jurisprudence differs from the same in Roman law. It is apparent that a proper explanation lies at the threshold of any analysis, and it is conceived that no progress can be made till the proper conception is had of the leading terms used. We have asserted in effect that the ideas contained in the expression found in Gaius and the Institutes, that "all our law relates to persons, to things, and to actions,' are applicable to American jurisprudence as well as to the English and Roman.

In what sense does Blackstone use the expression

"rights of persons?" In the sense of rights belonging to persons? Or does he use the word "of" in the sense of "concerning or relating to?" That is determined by referring to the text.

The jura personarum, or "rights of persons," Blackstone explains to be those which concern and are annexed to the persons of men. The jura rerum, or rights of things, are such as a man may acquire over external objects or things unconnected with his person. This is an odd expression to use in a definition of the rights of persons, i. e., the rights of persons are the rights which concern the persons, to which is added the phrase "of men," making it read, "the persons of men," although "persons" seems to be used as equivalent to "man." Why not say, concern the persons of persons, or man of men, or simply men?

It will be seen that, in the first connection, the word "of" is used in the sense of "concern" and "relating to," instead of "belonging to," and the second are defined to be, not the right of things at all, but such rights as a man may acquire over objects and things not connected with his person. On another page, however, he says that certain absolute rights of individuals (not persons) are such as would belong to the persons merely in a state of nature, thus introducing another word, viz., individual (26).

Some authors assert that Blackstone did not understand what was intended by Gaius and the Institutes

261 Blk. Com. p. 123.

(27); others, that the meaning of his expressions, if once thoroughly comprehended, was justifiable (28).

The commentator should have the benefit of the construction most favorable to him, that in using the expression "rights of things" he used this word “of” in the sense we have suggested, namely, "concerning” or "relating to," which will leave his expression less liable to criticism on that ground; and it would then appear that he had distinguished certain rights as relating to persons, and certain rights as relating to things, though we still have the expression that absolute rights of individuals are such as would belong to (not concern or relate to) their persons in a state of nature, and it is not made plain to us just what political or civil rights a man would have in a state of nature, and their absolute rights are plainly the civil rights of Hale, and such as we term "civil" rights (29).

Translating jura as "rights" instead of "laws” seemingly puts us in the situation of having persons and things alike the objects of rights (30), instead of having laws relating to persons and things, and we have not been told who is the possessor of the rights of persons or the rights of things. This is left to implication, and by reason thereof confusion and obscurity pervade

27 Austin's Jur., lec. XL.; Holland, 71.

28 Hammond's Blk., note, p. 316.

20 See next chapter.

80 This is more in conformity to the Roman law than many who criticize Hale and Blackstone seem to realize. There is a real dominion over persons, e. g., husband and wife, parent and child, etc., but these are not rights in personam by the Roman law. They would be according to Blackstone's qualifying phrase. See next chapter.

what should have been the clearest part of the Commentaries.

Jeremy Bentham, in his remarks in reference to the inexact use of language by Blackstone in pages 47 and 49 of the Commentaries, says: "When leading terms are made to chop and change their several significations, sometimes meaning one thing, sometimes another, at the upshot perhaps nothing, and this in the compass of a paragraph, one may judge what will be the complexion of the whole context" (31).

§ 64. The legal conception of leading words. Inasmuch as the words person, man, thing, property, rights, wrongs and actions are leading terms constituting the designation of departments of the corpus juris, it will be impossible to obtain clear conceptions of subjects connected with these words until an understanding is agreed upon as to the sense in which these terms are used. If we arrive at the meaning of these words intended by Blackstone and make the same clear, we will have a better idea of his method and perhaps a better opinion of it, and at the same time will be able to show the distinction between the same words in the Roman, the English and in American law.

Blackstone apparently uses the Roman word persona as synonymous with the English word "person," and the latter word interchangeably with "individual" and "man," whereas he might have avoided all confusion by a closer adherence to that which he professed to follow.

31 Fragment on Government, ch. 1, sec. 3.

§ 65. The word "person" defined. Gaius says "De juris devisione" [the divisions of the law] immediately preceding his division of the law; then follows, "De conditione hominum" [meaning the condition or status of men].

In the Institutes (32) "De jura personarum" precedes the expression "all our law relates either to persons, or to things, or to actions." The words persona and personae did not have the meaning in the Roman which attaches to homo, the individual, or a man in the English; it had peculiar reference to artificial beings, and the condition or status of individuals (33).

32 Liber 1, tit. 3.

33 Sandars' Justinian, 1-3, notes; Austin's Jur., pp. 41, 157, 362, 363, 376, 715, 730, 762, 983.

Professor John Austin's View.-"Many of the modern civilians have narrowed the import of the term 'person' as meaning a physical or natural person. They define a person thus: 'homo, cum statu suo consideratus;' a 'human being, invested with the condition of status.' And, in this definition, they use the term status in a restricted sense, as including only those conditions which comprise rights and as excluding conditions which are purely onerous and burthensome, or which consist of duties merely. According to this definition, human beings who have no rights are not persons, but things, being classed with other things which have no rights residing in themselves, but are merely the subjects of rights residing in others. Such, in the Roman law, down to the age of the Antonines, was the position of the slave." Austin's Jur., vol. 1, 358.

The signification in Our Jurisprudence.-"The word 'person,' in its primitive and natural sense, signifies the mask with which actors, who played dramatic pieces in Rome and Greece, covered their heads. These pieces were played in public places, and afterwards in such vast amphitheatres that it was impossible for a man to make himself heard by all the spectators. Recourse was had to art; the head of each actor was enveloped with a mask, the figure of which represented the part he was to play, and it was so contrived that the opening for the emission of his voice made the sounds clearer and more resounding, vox personabat, when the name persona was given to the instru