The word "homo" corresponds to the English word "man," and, as the Romans expressed it, "unus homo sustinet plures personas;" i. e., one man has many persons, or sustains many status, or many different conditions (34).

Austin says: "The term 'person' has two meanings, which must be carefully distinguished. It denotes a man or human being; or it signifies some condition borne by a man (35). A person (as meaning a man) is one or individual, but a single or individual person (meaning a man) may sustain a number of persons (meaning condition or status)" (36).

Notice that this meaning is not so broad as that given by Ortolan. It does not include artificial persons.

Again, he says: "As throwing light on the celebrated distinction between jus rerum and jus personarum, phrases which have been translated so absurdly by Blackstone and others,-rights of persons and rights of things, jus personarum did not mean law of persons, or rights of persons, but law of status, or condition. A person is

.

ment or mask which facilitated the resounding of his voice. The name persona was afterwards applied to the part itself which the actor had undertaken to play, because the face of the mask was adapted to the age and character of him who was considered as speaking, and sometimes it was his own portrait. It is in this last sense of personage, or of the part which an individual plays, that the word persona is employed in jurisprudence, in opposition to the word man, homo. When we speak of a person, we only consider the state of the man, the part he plays in society, abstractly, without considering the individual." 1 Bouvier's Institutes, note 1.

$4 Austin's Jur., 362.

35 See 4 Harv. Law Rev., 101

36 Austin's Jur., 363.

here not a physical or individual person, but the status or condition with which he is invested. It is a remarkable confirmation of this that Gaius, in the margin purporting to give the title or heading of this part of the law, has entitled it thus: De conditione hominum; and Theophilus, in translating the Institutes of Justinian from Latin into Greek, has translated jus personarum divisio personarum; understanding evidently by persona not an individual or physical person, but the status, condition or character borne by physical persons. This distinctly shows the meaning of the phrase jus personarum, which has been involved in impenetrable obscurity by Blackstone and Hale. The law of persons is the law of status or condition; the law of things is the law of rights and obligations (37) considered in a general manner, or as distinguished from these peculiar collections of rights and obligations which are styled conditions and considered apart (38).

A moment's reflection enables one to see that man and person cannot be synonymous, for there cannot be an artificial man, though there are artificial persons. Thus the conclusion is easily reached that the law itself often creates an entity or a being which is called a person; the Jaw cannot create an artificial man, but it can and frequently does invest him with artificial attributes; this is his personality, which we see and by which we are affected.

37 A word of caution is necessary here against accepting this statement as applicable to English and American law. See next chapter. 38 Austin's Jur., 374.

The law does not distinguish between men except by their personality, as king or magistrate, or as parent or husband or wife, etc. While the idea may be difficult for the tyro to grasp, the personality, i. e., this condition or status of a man, is entirely the creation of the law. By nature all men are created free and equal, i. e., of equal rank, equal rights; but the law does not look upon all men as equal, though in the law of the United States all men have equal civil rights (39).

The question is asked, Who is that man? The reply would be, that is the king or lord so and so, or the chief justice or the president or governor. But what is the name of this personage? The name indicates the man, the title, rank or legal standing of the person.

The word "persons" denoted certain conditions of rank or status with which a man was clothed by law. To adopt the language of the same author, "the term 'person,' as denoting a condition or status, is therefore equivalent to character (40). It signified, originally, a mask worn by a player, and distinguished the character which he represented from the other characters in the play. From the mask which expressed the character, it was extended to the character itself. From characters represented by players, or from dramatic characters, it was further extended by a metaphor to conditions or status. For men, as subjects of law, are distinguished by their respective conditions; just as players, perform

39 See Ex parte Virginia, 100 U. S. 368.

40 Hale nowhere speaks of status, but uses the term "character" or "capacity." See note 60, below.

ing a play, are distinguished by the several persons which they respectively enact or sustain" (41). As we shall see, the word had a still broader meaning.

"A slave," says Holland, "having, as such, neither rights or liabilities, had in Roman law, strictly speaking, no 'status,' 'caput,' or 'persona.' On the day of his manumission, says Modestinus, 'incipit statum habere.' Before manumission, as we read in the Institutes, 'nullum caput habuit'” (42).

The following is the explanation given by Mr. Sandars in his translation of the Institutes: "The word persona had, in the usage of the Roman law, a different meaning from that which we ordinarily attach to the word 'person.' Whoever or whatever was capable of having, and being subject to, rights, was a persona. All men possessing a reasonable will would naturally be personae; but not all those who were, physically speaking, men, were personae. Slaves, for instance, were not in a position to exercise their reason and will, and the law, therefore refused to treat them as personae" (43).

"On the other hand, many personae had no physical existence. The law clothed certain abstract conceptions with an existence, and attached to them the capability of having and being subject to rights. The law, for instance, spoke of the state as a persona. It was treated as being capable of having the rights and of being subject to them. These rights really belonged to the men

41 Austin's Jur., 363.

42 Holland's Jur., 81.

48 Slaves were not persons in the United States until after the abolition of slavery. 1 Hammond's Blk. 334, note.

who composed the state, and they flowed from the constitution and position of associated individuals. But, in the theory and language of law, the rights of the whole community were referred to the state, to an abstract conception interposed between these rights and the individual members of society. So, a corporation, or an ecclesiastical institution, was a persona, quite apart from the individual personae who formed the one and administered the other. Even the fiscus, or the imperial treasury, as being the symbol of the abstract conception of the emperor's claims, was spoken of as a persona. The technical term for the position of an individual regarded as a legal person was status" (44).

Ortolan's explanation of personality (45). The substance of the above was undoubtedly taken from Ortolan's treatment of the subject as given in his History of the Roman Law, which is submitted because it is clear and concise:

"The word 'person' (persona) does not in the language of the law, as in ordinary language, designate the physical man. This word in law has two acceptations: In the first, it is every being considered as capable of having or owing rights, of being the active or passive subjects of rights.

"We say every being, for men are not alone comprised therein. In fact, law, by its power of abstraction creates persons, as we shall see that it creates things, which do

44 Sandars' Justinian, Introduction, p. 26.

45 Ortolan's History of the Roman Law is among the best. It is, unfortunately, not easily obtained.