CHAPTER XV.
PERSONS.
§ 108. The Nature of Personality.
The purpose of this chapter is to investigate the legal conception of personality. It is not permissible to adopt the simple device of saying that a person means a human being, for even in the popular or non-legal use of the term there are persons who are not men. Personality is a wider and vaguer term than humanity. Gods, angels, and the spirits of the dead are persons, no less than men are. And in the law this want of coincidence between the class of persons and that of human beings is still more marked. In the law there may be men who are not persons; slaves, for example, are destitute of legal personality in any system which regards them as incapable of either rights or liabilities. Like cattle, they are things and the objects of rights; not persons and the subjects of them. Conversely there are, in the law, persons who are not men. A joint-stock company or a municipal corporation is a person in legal contemplation. It is true that it is only a fictitious, not a real person; but it is not a fictitious man. It is personality, not human nature, that is fictitiously attributed by the law to bodies corporate.
So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition.
But we may go one step further than this in the analysis. No being is capable of rights, unless also capable of interests which may be affected by the acts of others. For every right involves an underlying interest of this nature. Similarly no being is capable of duties, unless also capable of acts by which the interests of others may be affected. To attribute rights and duties, therefore, is to attribute interests and acts as their necessary bases. A person, then, may be defined, for the purposes of the law, as any being to whom the law attributes a capability of interests and therefore of rights, of acts and therefore of duties.
Persons as so defined are of two kinds, distinguishable as natural and legal. A natural person is a being to whom the law attributes personality in accordance with reality and truth. Legal persons are beings, real or imaginary, to whom the law attributes personality by way of fiction, when there is none in fact. Natural persons are persons in fact as well as in law; legal persons are persons in law but not in fact.[[256]]
§ 109. The Legal Status of the Lower Animals.
The only natural persons are human beings. Beasts are not persons. They are merely things—often the objects of legal rights and duties, but never the subjects of them. Beasts, like men, are capable of acts and possess interests. Yet their acts are neither lawful nor unlawful; they are not recognised by the law as the appropriate subject-matter either of permission or of prohibition. Archaic codes did not scruple, it is true, to punish with death in due course of law the beast that was guilty of homicide. “If an ox gore a man or a woman that they die: then the ox shall be surely stoned and his flesh shall not be eaten.”[[257]] A conception such as this pertains to a stage that is long since past; but modern law shows us a relic of it in the rule that the owner of a beast is liable for its trespasses, just as a master must answer for his servant, or a slave-owner for his slave.[[258]] This vicarious liability, however, does not involve any legal recognition of the personality of the animal whose misdeeds are thus imputed to its owner.
A beast is as incapable of legal rights as of legal duties, for its interests receive no recognition from the law. Hominum causa omne jus constitutum.[[259]] The law is made for men, and allows no fellowship or bonds of obligation between them and the lower animals. If these last possess moral rights—as utilitarian ethics at least need not scruple to admit—those rights are not recognised by any legal system. That which is done to the hurt of a beast may be a wrong to its owner or to the society of mankind, but it is no wrong to the beast. No animal can be the owner of any property, even through the medium of a human trustee. If a testator vests property in trustees for the maintenance of his favourite horses or dogs, he will thereby create no valid trust enforceable in any way by or on behalf of these non-human beneficiaries. The only effect of such provisions is to authorise the trustees, if they think fit, to expend the property or any part of it in the way so indicated; and whatever part of it is not so spent will go to the testator’s representatives as undisposed of.[[260]]
There are, however, two cases in which beasts may be thought to possess legal rights. In the first place, cruelty to animals is a criminal offence, and in the second place, a trust for the benefit of particular classes of animals, as opposed to one for individual animals, is valid and enforceable as a public and charitable trust; for example, a provision for the establishment and maintenance of a home for stray dogs or broken-down horses.[[261]] Are we driven by the existence of these cases to recognise the legal rights and therefore the legal personality of beasts? There is no occasion for any such conflict with accustomed modes of thought and speech. These duties towards animals are conceived by the law as duties towards society itself. They correspond not to private rights vested in the immediate beneficiaries, but to public rights vested in the community at large—for the community has a rightful interest, legally recognised to this extent, in the well-being even of the dumb animals which belong to it.