This figurative identification of a right with its object is, however, not always permissible. I may be said to own the money in my hand; but as to that which is due to me, I own not the money, but a right to it. In the one case I own the material coins; in the other the immaterial debt or chose in action. So I own my land, but merely a right of way over the land of my neighbour. If we look, therefore, no deeper than the mere usages of speech, it would seem as if the subject-matter of ownership were sometimes a material object and at other times a right. This, of course, would be a logical absurdity. Ownership may conceivably be in all cases a relation to a material object; or it may in all cases be a relation to a right; but it cannot be sometimes the one and sometimes the other. So long as we remember that the ownership of a material thing is nothing more than a figurative substitute for the ownership of a particular kind of right in that thing, the usage is one of great convenience; but so soon as we attempt to treat it as anything more than a figure of speech, it becomes a fertile source of confusion of thought.
In what cases, then, do we use this figure of speech? What is it that determines whether we do or do not identify a right with its object? How is the line drawn between corporeal and incorporeal ownership? The usage is to some extent arbitrary and uncertain. The application of figurative language is a matter not of logic but of variable practice and opinion. Speaking generally, however, we may say that the ownership of a material thing means the ownership of a jus in re propria in respect of that thing. No man is said to own a piece of land or a chattel, if his right over it is merely an encumbrance of some more general right vested in some one else. The ownership of a jus in re aliena is always incorporeal, even though the object of that right is a corporeal thing. I am not said to own a chattel, merely because I own a right to have it transferred to me, or because I own a lien over it or a right to the temporary use of it.
When, on the other hand, a right is not a mere encumbrance of another right—when it is a self-existent jus in re propria—it is identified with the material thing which is its subject-matter. It is not difficult to perceive the origin and reason of this usage of speech. In its full and normal compass a jus in re propria over a material object is a right to the entirety of the lawful uses of that object. It is a general right of use and disposal, all jura in re aliena being merely special and limited rights derogating from it in special respects. It is only this absolute and comprehensive right—this universum jus—that is identified with its object. For it is in some sense coincident with its object, and exhausts the juridical significance of it. It is the greatest right which can exist in respect of the thing, including all lesser rights within itself, and he who owns it may therefore conveniently be said to own the thing itself.
We have said that in its full and normal compass corporeal ownership is the ownership of a right to the entirety of the lawful uses of a corporeal thing. This compass, however, may be limited to any extent by the adverse influences of jura in re aliena vested in other persons. The right of the owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees, and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet he none the less remains the owner of the thing, while all others own nothing more than rights over it. For he still owns that jus in re propria which, were all encumbrances removed from it, would straightway expand to its normal dimensions as the universum jus of general and permanent use. He then, is the owner of a material object, who owns a right to the general or residuary uses of it,[[203]] after the deduction of all special and limited rights of use vested by way of encumbrance in other persons.[[204]]
What, then, is the name of the right which we thus identify, for convenience of speech, with its material object? What shall we call the right which enables the owner of it to say that he owns a piece of land or a chattel? Unfortunately for the lucidity of legal nomenclature, there is, unless we are prepared to use the somewhat awkward Latin term jus in re propria, no other name for it than ownership itself. This is a use of the term which is quite different from that hitherto considered by us. Ownership, as a particular kind of right, must be clearly distinguished from ownership, as a particular kind of relation to rights of all descriptions. We cannot class together the right of ownership and the ownership of a right. This use of the term to denote a right is the natural outcome of the figurative use of it already considered. When we not only speak of the ownership of land, but interpret such language literally, it is clear that ownership must be taken as the name of the right which the owner has in the land.[[205]]
§ 88. Corporeal and Incorporeal Things.
Closely connected with the distinction between corporeal and incorporeal ownership is that between corporeal and incorporeal things. The term thing (res, chose, sache) is used in three distinct senses by legal writers:—
1. In its first and simplest application it means merely a material object, regarded as the subject-matter of a right.[[206]] According to this use, some rights are rights to or over things, and some are not. The owner of a house owns a thing; the owner of a patent does not.
2. In a second and wider sense the term thing includes every subject-matter of a right, whether a material object or not. In this signification every right is a right in or to some thing. A man’s life, reputation, health, and liberty are things in law, no less than are his land and chattels.[[207]] Things in this sense are either material or immaterial, but the distinction thus indicated must not be confounded with that now to be explained between things corporeal and incorporeal.
3. In a third and last application the term thing means whatever a man owns as part of his estate or property. It is any subject-matter of ownership within the sphere of proprietary or valuable rights. Now we have already seen that according to the current usage of figurative speech ownership is sometimes that of a material object and sometimes that of a right. Things, therefore, as the objects of ownership, are of two kinds also. A corporeal thing (res corporalis) is the subject-matter of corporeal ownership; that is to say, a material object. An incorporeal thing (res incorporalis) is the subject-matter of incorporeal ownership; that is to say, it is any proprietary right except that right of full dominion over a material object which, as already explained, is figuratively identified with the object itself. If I own a field and a right of way over another, my field is a res corporalis and my right of way is a res incorporalis. If I own a pound in my pocket and a right to receive another from my debtor, the first pound is a thing corporeal, and the right to receive the second is a thing incorporeal; it is that variety of the latter, which is called, in the technical language of English law, a chose in action or thing in action; while the pound in my pocket is a chose or thing in possession.[[208]]