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will be devoted to the substantive meaning of the term "a right,” inasmuch as a discussion of the other form of the conception would bring us into the field of ethical, as distinguished from practical, jurisprudence.
It will readily be seen that the term "a right" is frequently used in the vernacular as meaning a power which one is morally entitled to exercise. But in the municipal law it is used in a technical sense. In that system, we have seen that no legal force is given to moral rules, as such. The moral law is essentially distinct from the municipal law. While there is a large class of rights which are sanctioned by both systems, yet there are many recognized by each which the other does not enforce. is morally right may be legally wrong, while it is true that the law allows many things to go unpunished which are morally reprehensible. The municipal law applies its sanctions to no rights, however strong may be the popular approval of them, which are not embodied in the laws of the State, either written or unwritten. Those rights which form the subject-matter of the municipal law are called "legal rights," and it is because it enforces these rights that the whole machinery of that law finds its existence justified.
A legal right is therefore a power, interest, or privilege which the law will protect, and the recognition of which it will enforce by means of its sanctions. Whenever a legal right is violated, the law is violated and a legal wrong committed, and it becomes the duty of the State to redress that violation, which it does by the application of what is called a legal remedy. The application of a legal remedy is in many respects analogous to the administration of a medical restorative. When a human being is in a diseased condition, the physician prescribes such a drug as shall tend to bring about the man's restoration to a normal condition. And so it is in theory of the law. When a person's rights are violated, his condition is regarded as abnormal; and the court, in granting him relief, merely endeavors to restore him to a state of legal health. The laws governing the administration of these legal remedies form what is known as the remedial or adjective law, which will be explained in detail later.1
§ 59. Rights in Rem and Rights in Personam. Legal rights are divided into two classes, namely:
(1) Rights in rem; that is, those rights which the possessor holds as against the whole community, and which involve a corresponding duty on the part of the whole community to refrain from disturbing them. They are often called "rights of ownership."
1. See infra, § 73 et seq.
(2) Rights in personam; that is, those rights which the possessor may enforce against particular individuals only, and which correspond to obligations on the part of such individuals to act or forbear in regard to the subject-matter of the right. They are sometimes called "rights of obligation."
Every right involves certain acts or forbearances on the part of some person or persons other than the possessor of the right. Thus, if I have a right to the ownership and use of my horse, there is a corresponding duty on the part of all others to abstain from interfering with such ownership and use of it. If a man deprives me of my possession of it, he violates this right which I possess; and the law will use its machinery to enforce the right by punishing the offender, and restoring the horse to me. This particular sort of a right, being enforceable against the community at large, is a right in rem. So the right which one has over his own person, being likewise correlative to a general duty on the part of others to forbear, is also a right in rem.
Let us suppose, on the other hand, that two persons have entered into a contract with each other consisting of mutual promises. Here a different kind of a right exists. Each has a right to require of the other the performance of what that other has promised. Such a right is not enforceable against all the world, but only against the other contracting party. Being available only against a specific person or specific persons, it is a right in personam. A contract, however, instead of consisting of mutual promises may consist in a promise by one of the parties only, and the transfer of something to him by the other, as in the case of a promise to pay for goods which are delivered. In such a case the person receiving the goods acquires a right in rem, while the person receiving the promise acquires a right in personam.
A right in rem, as stated above, is often called a right of ownership. It is correlative to a general duty on the part of all. A right in personam is referred to as a right of obligation, because, instead of this general duty, there is a specific obligation resting on a limited number of definite persons. Such a right involves a power to require certain persons to act or forbear in a manner different from the rest of the community. It will be plain that a right in personam may grow out of the violation of a right in rem. The moment a right in rem is violated by a specific person, as by an assault or trespass, there arises a right in personam against that person; not a right to exact forbearance on the latter's part, but to compel him to compensate the injured person for the violation. The injurer remains, of
course, under the duty to observe the general right in rem, as well as the community at large; but he is also under a more definite obligation in personam to pay damages.
860. Persons, Natural and Artificial-Status. Status. A person, in the law, is any human being or legal creation capable of possessing legal rights. Persons are classified into (1) natural persons and (2) artificial persons. A natural person is a living human being, of whatever age or sex. An artificial person is a legal entity, existing only as the possessor of legal rights and obligations. The most prominent artificial persons are states and corporations.
By the "status of an individual" is meant the legal position of that individual with reference to the rest of the community. It involves rights and duties which are imposed by the law, and which cannot be avoided by the individual's own act or an agree
The meaning of the term person," in the law, differs somewhat from its general popular use. As a subject of the law, a person is nothing more or less than individuality around which legal rights and duties gather. This individuality may be embodied in human form, or it may be merely a legal conception. The law has not always recognized all human beings as persons. Slaves were usually regarded as mere chattels, without any of the ordinary legal rights, and they therefore would not come within the meaning of the term. Since the abolition of slavery, however, it may be said that, in general, all human beings are persons, and they are distinguished from all other persons by the designation "natural persons."
In order that a human being may be a person, however, his actual existence must have begun; that is, he must have life. Life is ordinarily regarded as begun the moment the child is able to stir in his mother's womb. Previous to that, the law does not regard the unborn child as a person. A human being, moreover, ceases to be a person at the moment of physical death."
In the early history of the law, rights were frequently attached to groups of persons, these groups thereby themselves assuming
2. "From the moment of conception, however, if eventually born alive, the child is treated as having been alive for many beneficial purposes, and while still in the womb of its mother it has civil rights which are entitled to protection; a guardian may be appointed for it; or it may inherit land or take it under a will. If, however, it perish before birth, this antenatal recognition by the law is withdrawn and the existence of the child, even during that temporary
period, is legally ignored. Moreover, until full born, a child is not the subject of a felonious homicide, nor the person causing its death guilty of murder." Robinson Elem. Am. Jur., § 17.
3. As a general rule, when a person is shown or appears to have been living at one time, the presumption, in the absence of evidence to the contrary, is that he is still alive; but a rebuttable presumption of death arises in the case of a person who
some of the attributes of personality. Many rights were in early times attached to the family as such. But at the present time family rights, as such, are seldom or never recognized, having given place to the individual rights of the members who compose the family.
In modern times, the class of artificial persons has attained great importance. The most prominent example of this class is the state itself. The state is a person because it has rights rights which are usually regarded as paramount. There can, of course, be but one state in a particular community; and, as a consequence, the number of such persons is small. The most numerous artificial persons are corporations which are the creatures of the state.
A person being in the law one who is capable of possessing legal rights and duties, his "status" is sometimes described as the sum of those rights and duties of which he is possessed. In the common language of the books, however, it signifies rather a condition in which a person is placed, by virtue of which certain rights and obligations are imposed by the law on him, as a member of a class. For example, one element of the status of a natural person is his citizenship. On account of his citizenship, he has certain rights and duties in common with all other members of the class of citizens. He has those rights so long as he remains a citizen. He cannot give them up without ceasing to be a citizen. Again, when a human being is an infant, that is, under the age of twenty-one, many of his rights are different from those which attach to him when he becomes of age. When he arrives at his majority, he is said to change his status, so far as those particular rights are involved. This change cannot be influenced by the will of the person himself, but takes place by operation of law.
There are also certain relations between individuals which are commonly referred to as relations of status. Marriage, for example, creates a relation of status between husband and wife. The husband comes under certain liabilities, as that to support his wife, which he cannot avoid, even though the wife agree to release him from them. Relations of status are contrasted with contract relations, the liabilities incident to which may be altered, or even abolished, by an agreement of the parties.
has been absent from his last or usual place of residence and has not been heard from, for a considerable length of time, usually fixed at seven years. See 13 Cyc. 295, 297. "Nothing but his actual death, however, can divest him of his own rights,
and whatever may have taken place in reference to these, on the false assumption of his death, will be invalid, and he can assert and enjoy them as if his continued existence never had been doubted." Robinson Elem. Am. Jur. § 18.
It will readily be seen that the status of a particular person consists of numerous elements. If he is a citizen he comes under the laws, and acquires the rights and liabilities, which attach to the citizen class. As an adult he has the rights of all those who have attained their majority. A person's status also depends on sex, and sometimes on race; and, in general, whenever one becomes a member of a class upon which are imposed by the law certain peculiar rights and liabilities, he varies his status, so far as those rights and liabilities are concerned.
Normal and Abnormal Status.-"Status," says Professor Robinson," is either normal or abnormal. Normal status is the legal character of the great body of citizens for whom the general laws are made and to whom in their full scope and meaning they are applied. Abnormal status is the legal character of those peculiar classes who for one reason or another are regarded as improper subjects for the application of the general laws, and are, therefore, exempted to a greater or less extent from their operation." And he classifies persons of abnormal status as: (1) Infants; (2) insane persons; (3) married women; (4) persons under duress; (5) public officers; and (6) aliens and other persons who are not citizens. As we shall hereafter see, these classes of persons are subject to various special rules of law which do not apply to persons of normal status.
§ 61. Domicile. Rights, liabilities, and remedies frequently depend upon, and vary according to, the "domicile " of a person, and it is important, therefore, to understand the meaning of that term.5
In the common acceptation, domicile means the place where a person resides; but in a legal sense it means the place where a person has his fixed and permanent home or establishment. Two things must concur to constitute domicile, namely, actual residence, and the intention of remaining; or, in case of temporary absence, the intention of returning; and as there must be this concurrence of fact and intention, the question of domicile is often a difficult one. The most general rules on the subject
4. Robinson Elem. Am. Jur. § 24 et seq.
5. See 14 Cyc. 833. "The nature of political society requires that every member of it must have his political abode within the territory over which it exercises Sovereignty, although he may be physically absent from it; and when its territory is divided into minor districts which limit the local jurisdiction of its courts, the precincts of
its executive officers, the enjoyment of the elective franchise, the imposition of taxes, and other governmental operations, or in which special rules control the ownership and transmission of property, it is necessary that every person should be so related to one of these districts, to the exclusion of all others, that his legal privileges and obligations may at any moment be precisely ascertained." Robinson Elem. Am. Jur. § 66.