rise to actions in rem, and they are excluded from the jus personarum, which was reserved for rights appropriated to some particular class of persons. Blackstone, however, changed this by adding to the word thing the further limitation, 'unconnected with the person.' All his other changes are mere consequences of this. It is evident that security, liberty, reputation, health, the body, limbs, life itself, are all so connected with the person that they cannot be treated as 'things' under this new definition. The right to the safe enjoyment of all these is still, as much as ever, a right against all persons whatsoever. It is a jus in rem, if you please, but it certainly is no longer a jus rerum. There is but one alternative, and that is to place these right where, under Blackstone's definition, they properly belong-with the other rights of persons." Hammond's Int. to Sandars' Justinian, lvi.

§ 77. Remedies to protect and enforce are essential parts of the definition of right and obligation. Before proceeding with the treatment of these words it will be wise to refer again to the meaning of right and obligation. A right was defined to be the capacity to do or have, or to compel others to do or refrain from doing.

Now, an obligation is the duty resting upon the party from whom some action is due, together with the vinculum jus, the binding tie of the law. The duty may be simply a moral obligation, but the obligation which the law enforces is something more tangible; it is the artificial or civil obligation.

The law does not, however, ignore moral duties for as we shall see in connection with contracts and trusts the moral obligation is an important factor.

The distinction between right and obligation, and the classification of rights herein pointed out, has a very material influence upon the classification of actions or remedies.

It should be observed that the protected right, and the enforced obligation, are the efficacious ones, and that the element of "capacity to enforce, with the aid of the law," is an essential element in the definition of a legal right. In other words, the remedy to enforce and protect is an essential part of a right, and the power to enforce is the obliging part of an obligation (1).

In Green v. Biddle, the supreme court of the United States declared: "Nothing, in short, can be more clear, upon the principles of law and reason, than that a law which denies to the owner of land a remedy to recover the possession of it when withheld by any person, however innocently he may have obtained it, or to recover the profits received from it by the occupant, or which clogs his recovery of such possession and profits by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may indeed subsist and be acknowledged, but it is impaired and rendered insecure, according to the nature and extent of such restrictions" (2).

In Bronson v. Kinzie, Chief Justice Taney quotes the

1 Consult again the definition of law supra. 28 Wheat. 75.

language used in Green v. Biddle and adds: “And no one, we presume, would say that there is any substantial difference between a retrospective law declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or incumbered it with conditions that rendered it useless or impracticable to pursue it. Blackstone in his Commentaries on the Laws of England (vol. 1, p. 55), after having treated of the declaratory and directory parts of the law, defines the remedial in the following words: "The remedial part of the law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no methods of recovering and asserting those rights when wrongfully withheld or invaded. This is what we mean properly when we speak of the protection of the law.' We have quoted the entire paragraph, because it shows in a few plain words, and illustrates by a familiar example, the connection of the remedy with the right. It is the part of the municipal law which protects the right and the obligation by which it enforces and maintains it. It is this protection which the clause in the constitution now in question mainly intended to secure. And it would be unjust to the memory of the distinguished men who framed it, to suppose that it was designed to protect a mere barren and abstract right without any practical operation upon the business of life" (3).

31 How. 317.

§ 78. The classification by civilians of rights as real and personal. We are obliged now to notice the same word "jus" in its other signification, meaning rights; and it may be said by way of encouragement to students that it is not to be expected that a clear comprehension will be obtained of this intricate subject at a single perusal. A matter of this nature requires study and thought.

ORTOLAN'S PRESENTATION OF REAL AND PERSONAL RIGHTS (4).- Personal Rights; Real Rights (a Classification Not Adopted in the Roman Law) (5).-Right is any faculty that a person has to do, to omit, or to exact something.

Roman jurisprudence did not recognize any general division of rights. That which is now commonly received, however, though not belonging to, was derived from Roman law.

Rights are divided into personal and real rights.

We accept this division because it is exact, provided it is well defined.

Idea of personal and of real rights. Leaving for a moment Roman traditions, if we confine ourselves to pure reason, the following notions appear to be forced upon us:

No right exists except from one person to another; every right has therefore, necessarily, one active subject,

4 Ortolan's Hist. Rom. Law, 647, 648, 650, 651, 652, 653. In the case of extracts from Ortolan's writings no apology is necessary for indulging in copious quotations; but there are many cases where an author of an institutional treatise best serves his reader by exact quotation, rather than by garbled paraphrase. The duty of the honest author is fair use and frank acknowledgment.

5 Nor are they adopted in English or American law.

and one or more passive subjects; which whether active or passive, can only be persons. In that respect all rights are therefore personal.

Every right, besides the active and passive subject, has moreover, and necessarily, an object, which, in its widest sense, is designated a thing. Every right has, therefore, a thing for its object; and, in that respect every right is real (6).

Therefore every right, without exception, is at once personal as to its active as well as passive subject, and real as to its object.

But the mode in which persons as subject, active or passive, or things as object, can appear and act in the right, assumes two very distinct phases.

The relation of right and obligation. Every right, if we go to principles, is summed up in the faculty which the active subject has to exact something from the passive subject. Now, the only thing which it is possible immediately to exact from a person is. that that person should do or abstain from doing something; that is to say, action or inaction. It is to this that every right is reduced. This necessity for the passive subject to do or to abstain from doing something is what is called, in legal language, an obligation.

Every right, therefore, without exception, if we go to principles, consists in obligations (7).

• These distinctions are important because they determine whether the vindication of the right shall be by an action in personam or an action in rem; hence the occasion for the care in explanation at this point.

This word "obligation" had an importance in Roman jurisprudence far above the same word in English law. In the former it was