To sum up, a personal right is that in which a person is individually the passive subject of the right.

Or, in other terms, a personal right is that which gives the faculty of individually obliging another to do or to abstain from doing something.

A real right is that which gives the faculty of deriving advantage from a thing (8).

In both cases we may leave out of the question the community in general, bound to non-interference (9).

The definition thus given is wide. All rights, without any exception, in whatever manner they may be acquired, exercised or sued for at law, and whatever may be the corporeal or the incorpereal thing which is the object of them, come under one category or the other.

It is not an arbitrary definition, but one which necessarily emanates from the nature of things; it is subject to no change, and reproduces itself inevitably in every legislation. [He means every system of law designations.]

§ 79. Various denominations of real rights and of personal rights. Jus in re, the expression for real rights, and jus ad rem for personal rights, are barbarous expres

the foundation of every right in personam; in the latter the word was of technical import and meant a particular species of contract. By reason of the constitutional provision prohibiting any state from passing any law impairing the obligation of a contract, this word has attained an importance greater than it ever before had.

8 By exercising dominion over it. The word "thing" is here used in the very broadest sense. The obligation of a contract would be a "thing" in that sense.

Like all generalities, like many such indulged in by theoretical writers, this must not be taken too implicitly. The community is not always bound to non-interference. A striking example is Louisiana v. New Orleans, 109 U. S. 285.

sions introduced in the middle ages, which have never belonged to the language of Roman law. The former already appears in the Brachylogus, the summary of the law of Justinian compiled in Lombardy in the twelfth century. Both are to be met with in the thirteenth century, opposed to each other in the papal constitutions; and it is from the canon law that they seemed to have passed into secular jurisprudence. We must rid our judicial language of it (10).

Jus in rem and jus in personam not of Roman Origin. The expressions jus in rem for real rights, and jus in personam for personal rights, framed after the model of some analogous expressions of Roman law, do not, any more than the preceding, really belong to it.

Absolute and relative right (11). This is a philosophic division altogether foreign to Roman jurisprudence. It is certainly more rational than the last; but it is equally objectionable, because it seems to imply the idea that absolute right exists with regard to everybody, whilst the personal or relative right only exists with regard to persons the passive subjects of this right. Every right, from the moment it exists, exists with respect to all, and must be protected, if needs be, against all. Only, in the case of real rights, no person whatever is individually the passive subject of them; whilst, in the case of personal rights, a person is individually the passive subject of them.

10 This is simply an impossibility. We must accept the language of the law and endeavor to master the meaning of it. These expressions are in our law to stay, although they mean now almost the opposite of their former meaning.

11 See next chapter.

But, in conclusion, we desire to point out that these expressions are both equally foreign to the law of the Romans, and that in this law no such general division was ever made nor had it any place in their system.

§ 80. Same subject: John Austin's presentation. "Jus reale sive jura realia" et "jus personale sive jura personalia:" In the language of modern civilians, and in the language of the various systems which are offsets from the Roman law, rights availing against persons universally or generally, and rights availing against persons certain or determinate, are not infrequently denoted by the distinctive name of "jus reale" and "jus personale;" the adjective reale being substituted for "in rem," and the adjective personale for "in personam.'

These expressions are so ambiguous that the following cautions may be useful to the student:

1. "Jus reale" and "jus personale," which signifies rights in rem and rights in personam, must not be confounded with "jus rerum" and "jus personarum;" i. e., "law of things" and "law of persons.'

2. The distinction of the civilians between real and personal rights must not be confounded with the distinction of the English lawyers between real property or interests and personal property or interests. Real rights (in the sense of the English lawyers) comprise rights which are personal as well as rights which are real (in the sense of the civilians); and personal rights (in the sense of the former) embrace rights which are real as well as rights which are personal (in the sense of the latter)

The distinction is an essential one. The difference between real and personal (as the terms are understood by the civilians) is essential and necessary. It runs through the English law just as it pervades the Roman, although it is obscured in the English by that crowd of gratuitous distinctions which darken and disgrace the system. But the difference between real and personal (in the sense of the English lawyers) is accidental (12). In the Roman law there is not the faintest trace of it.

3. In the sense of the civilians, "jus personale" signifies any right which avails against a person certain or against persons certain. In the English law "personal" sometimes signifies a sort or species of such rights, viz.: those rights of action which, in the language of the Roman lawyers, "nec heredibus nec in heredes competunt," which neither pass to the persons who represent the injured parties, nor avail against the persons who represent the injuring parties. Being limited to partis who are directly affected by wrong, and only availing against parties who are authors of wrong, these rights of action are styled by English lawyers personal, or (more properly) they are said to expire (or to be extinguished) with the persons of the injured or injuring.

"Actio personalis moritur cum persona" (13) is a

12 Personal, personalis, le, adj. It hath in our common law one strange signification, being joined with the substantive, things, goods or chattels, as things personal, goods personal, chattels personal; for thus it signifieth any corporeal and movable thing belonging to any man, be it quick or dead. Old Law-French Dic., by F. O., 1701. That is to say, land is no more real than a horse; it is no more property than is a chattel; in fact, not so much in the English law.

18 Bro. Max., 904.

rule or maxim applied to the rights in question. But, like a thousand phrases dignified with the name of maxims, this wretched saw is a purely identical proposition. For a personal action (as the term is here understood) means a right of action which expires or is extinguished with the party (14).

The simple meaning is that the right is so identified with the person that it cannot exist without or separated from him, and hence it cannot be transferred by descent or purchase (15).

§ 81. The application of these distinctions in our law. In the preceding chapter great pains was taken to explain the meaning of Blackstone's divisions of rights, as those which concern and are annexed to the persons of men, and such as men may acquire under external things unconnected with his person, and we have just shown that these conceptions are peculiar to English jurisprudence.

Attention was called to the fact that an intangible thing might still be the object of a right, and such, as we pointed out, was the case of the word chose. We shall see other intangible rights besides choses.

To the English lawyers all classes of rights were either political rights, as magistrate and people, or fell within the compass of domestic relations, or they were rights. to real property, personal security, or private property. These latter Blackstone classes under the head of absolute rights.

142 Austin's Jur. pp. 1011-13.

15 This subject will arise in later parts of this work. See Assignability.