Merits and demerits of the use of compulsory compensation
as an instrument of punishment.
CHAPTER XX.
THE LAW OF PROPERTY.
§ 152. Meanings of the Term Property.
The substantive civil law[[401]] is divisible into three great departments, namely the law of property, the law of obligations, and the law of status. The first deals with proprietary rights in rem, the second with proprietary rights in personam, and the third with personal or non-proprietary rights, whether in rem or in personam. In this chapter we shall consider in outline the first of these branches, and we shall then proceed to deal in the same manner with the law of obligations. The law of status on the other hand is not of such a nature as to require or repay any further consideration from the point of view of general theory.
The term property, which we here use as meaning proprietary rights in rem, possesses a singular variety of different applications having different degrees of generality. These are the following:—
1. All legal rights. In its widest sense, property includes all a person’s legal rights, of whatever description. A man’s property is all that is his in law. This usage, however, is obsolete at the present day, though it is common enough in the older books. Thus Blackstone speaks of the property (i.e. right) which a master has in the person of his servant, and a father in the person of his child. “The inferior,” he says,[[402]] “hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior.” So Hobbes says:[[403]] “Of things held in propriety, those that are dearest to a man are his own life and limbs; and in the next degree, in most men, those that concern conjugal affection; and after them riches and means of living.” In like manner Locke[[404]] tells us that “every man has a property in his own person,” and he speaks elsewhere[[405]] of a man’s right to preserve “his property, that is, his life, liberty, and estate.”
2. Proprietary rights (dominium and status). In a second and narrower sense, property includes not all a person’s rights but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man’s land, chattels, shares, and the debts due to him are his property; but not his life or liberty or reputation. In this sense we may oppose to Locke’s statement, that a man has a property in his own person, the saying of Ulpian: Dominus membrorum suorum nemo videtur.[[406]] This is probably the most frequent application of the term at the present day, but in the case of a word having so many recognised varieties of usage it is idle to attempt to single out any one of them as exclusively correct. They are all of equal authenticity.
3. Proprietary rights in rem (dominium and obligatio). In a third application, which is that adopted in this chapter, the term includes not even all proprietary rights, but only those which are both proprietary and real. The law of property is the law of proprietary rights in rem, the law of proprietary rights in personam being distinguished from it as the law of obligations. According to this usage a freehold or leasehold estate in land, or a patent or copyright, is property; but a debt or the benefit of a contract is not.
4. Corporeal property (dominium corporis and dominium juris). Finally, in the narrowest use of the term, it includes nothing more than corporeal property—that is to say, the right of ownership in a material object, or that object itself identified with the right by way of metonymy. Thus property is defined by Ahrens[[407]] as “a material object subject to the immediate power of a person,” and Bentham[[408]] considers as metaphorical and improper the extension of the term to include other rights than those which relate to material things.