A formal'science must necessarily begin with an understanding of the character of the phenomena about which it rationalizes i it can have no coherence if the thing with which it is concerned is given a name with complex and shifting meanings. A discussion of the great variety of ideas expressed by the word "Law' is deferred to another part of this work. (See LAW). It must suffice here to define "Positive Law,' with which alone the science of juris prudence is concerned, as "a rule of external human action, recognized and enforced by a sovereign political authority.° This definition is narrow enough not only to exclude the con ceptions expressed by such terms as the "laws of nature° where the word "law* is used merely figuratively, but also to differentiate positive law from moral law, ethics, etiquette or the "code of honor.* It is broad enough, on the other hand, to include rules established by cus tom when they have obtained recognition from the State, and regulations made by municipali ties, corporations or other agencies, to which the sovereign political power has delegated some part of its authority. The action regulated must be a human action and it must be exter nal; i.e., it must affect a thing or a person other than him who does the act. A thought is not an act until it finds expression in words or deeds. An omission, however, may be an act in law. Jurisprudence naturally falls into two divisions, public and private. The latter com prises the rational.! of legal rules governing the relations of individuals among themselves. Public jurisprudence is that division of the science which is concerned with the rationale of the legal rules which govern the relations be tween individuals and the State. A third di vision of the science is sometimes made to in clude the rules governing the interrelation of States. Inasmuch, however, as there is no super national authority to compel observance of these rules by mutually independent sovereignties, international law is lacking of the fundamental characteristic of positive law. It, therefore, fits only imperfectly into the scheme of our science. "The most obvious characteristic of the law is that it is coercive; it was invented be cause of transgressions. Even when it operates in favor of the legitimate action of individuals, the law does so by restraining interference with such action.* This carries us forward to the subject of legal rights, the creation and pro tection of which are the primary objects of law. The elements of a right the person entitled, the act or omission, the object and the person obligated. A right has been defined by Holland as "one man's capacity of influenc ing the acts of another, not by his own strength, but by means of the opinion or force of society. When one is said to have a right to anything, or over something, or the right to be treated in a certain way, what is meant is that public opin ion would regard with approbation, or acqui escence, his doing the act or his use of the thing, and would reprobate the conduct of any person who should prevent his doing the act or using the thing, or who should fail to treat him in the manner to which he is believed to be entitled.* A right thus sanctioned is a moral right. When the capacity residing in one man to control a thing or the action of another is exercised with the assent and assistance, if need be, of the State, it becomes a legal right — and this irrespective of the moral sanction of the community. The distinction between public and private rights lies upon the surface. The State has the right not to be conspired against or not to have its peace disturbed. An act of treason is a violation of a public right residing in the State, and the State intervenes not only to pun ish the traitor, but to protect itself — for the State is to be regarded as a "person' by anal ogy, with rights that need to be safeguarded by itself as well as it safeguards the rights of pri vate persons. Some trespasses are violative of a private as well as of a public right. A libel or an assault, for instance, infringes upon pri vate rights and, also, upon the public right of the State not to be disturbed by acts consti tuting, or tending toward, breaches of the peace. All legal rights fall into one of the two categories, public or private. The division of the science of jurisprudence in two correspond ing departments is, therefore, logically con sistent. It commends itself also by the .con venience of an arrangement whereby constitu tional, ecclesiastical, criminal and administra tive law, on the one hand, and the law of con tracts, property, succession and torts, on the other hand, fall into groups, to one or the other of which all legal topics may be referred. The classification of rights under the heads, 'Rights of Persons* and "Rights of Things,* is logically imperfect as well as inconvenient in practice. The right to receive rent •does not depend upon some distinctive characteristic of landlords as a class; nor would this right be affected because the landlord should happen to be following an occupation, say that of a pawn broker, whose business is conducted under some smial kind of administrative regulations. These regulations of the pawnbroking business in no way increase or impair the right of a pawnbroker, as landlord, to rent from a tenant. If a landlord should be an infant, however, a whole set of legal disabilities would come into play, affecting and modifying the antecedent right of this specific landlord to receive rent or the remedial right of the infant to enforce payment thereof. These modifying causes, affecting the relations between an infant land lord and his tenant, are entirely unconnected with the general rules of possession, owner ship and contract, which govern the relations between landlord and tenant — and when both parties concerned are normal the "personal di mensions' of a right need not be considered at all. In most cases they could be utterly dis regarded, for the conditions of abnormability in natural persons are not numerous. They are
lunacy, infancy, coverture, alienage, outlawry and a very few others. By abstracting the rubric "rights of persons,' which means nothing more than the law relating to varying legal capacities, and relegating this topic to a sepa rate head — such as "the law of abnormal per sonality'— the definition and consideration of legal rights would be greatly simplified.
A legal right is either antecedent or reme dial. An antecedent right is an exceptional advantage enjoyed by the person clothed with it. The right of an heir to a house and land devised to him, or the right of a merchant to goods purchased by him, are antecedent rights ; and they are exclusive, because they are en joyed by nobody else. Antecedent rights may be in rem, meaning that they are available against the whole world, as in the' cases just mentioned; or they may be in personam, mean ing that they are available only against a par titular person. The right of ownership is a right in rem, it is available against the whole world; the right of a landlord to rent is a right in personam, for it is available only against his tenant. A remedial right arises when an ante cedent right is violated. It is available only in personam, that is to say, against the person by whose infringement of an antecedent right the remedial right comes into being. Public as well as private rights may be either ante cedent or remedial. The right of the State not to be betrayed is antecedent and is a right i in rem because it is available against the whole world. When a traitor violates this antecedent right a remedial right in personam, available against the offender, is created. Antecedent private rights in rem, available against the en tire world by those entitled to the enjoyment thereof, are: (1) The right to personal safety and freedom; (2) to the society and control of one's family and dependents; (3) to reputa tion; (4) to advantages open to the commu nity generally, such as the free exercise of one's calling; (5) to possession and ownership; (6) to immunity from damage by fraud. Many of these, of course, become the objects of par ticular legal intervention only when they are infringed, as the right to personal safety is in fringed by a menace, an assault or an act of negligence. Antecedent rights when not in fringed, or when they are not "in motion°— meaning in process of creation, devolution or extinction — are said to be "at rest.° When at rest such rights are, nevertheless, under the protection of the State through its powers of police. The State not merely punishes stealing, it prevents it. Every right has relation to some thing, and the object of a right may be tangi ble or intangible. The "bubble, reputation ,° is an intangible thing, to the enjoyment of which a man has a right, but which he cannot reduce to possession. The rights of possession and ownership, generally speaking, are extensions of the power of a person over tangible physical objects. Possession and ownership are not identical. The Roman jurists even maintained that the custody of a thing by a bailee did not constitute possession, and that the abstraction of the thing from his custody did not give the bailee any remedial right against the abstractor —no more than a servant could claim legal recovery of his master's goods left in his care and stolen by a thief. The modern English law holds just the opposite, as also did the ancient Teutonic law. "Violations of posses sion give rights of action independently of rights of property. Such rights of action are extensions of the protection which the law throws around the person.° (13 Meeson and Wellsby, 581). The Salic law gave the person from whose custody cattle had been taken the sole right of recovery, exclusive even of the owner. To be in possession of a thing one must have it sufficiently in one's control to ex clude others; but possession may be symbolical. By entry on any part of an estate an heir will be assumed to be in possession of the whole, and one who buys goods in storage may be put into possession by receiving the keys of the warehouse wherein they are stored, or by the transfer to himself of a warehouse receipt. The essentials of possession are the will and the power to possess and the exercise of both.
"Neither the mere wish to catch a bird out of reach, nor the mere power to take a horse standing unguarded will suffice to put one in posseMon of the bird or the horse.° The will to possess, or animus domini, rather than mere physical possession, is °nine points of the law.° It is manifested in the largest and the smallest human relations — by a nation, which fights the world to keep a province, down to the individ ual, who defends property in his hands in the honest belief that he owns it, and the thief, who knows perfectly well he does not. The incidents of ownership are the right to possess, the right to enjoy and the right to dispose of property. The right to possess is lost or sus pended by letting, lending, pledging or mort gaging property. The right to enjoy includes the right to the increase — growing timber, ac cretions of alluvion, the young of cattle, etc. The right of ownership is limited by the State through taxation, the prohibition of obnoxious use or by taking in virtue of eminent domain; or it may be limited by individuals, as coparce ners, neighbors having rights of way, rights of access to water or other easements, or right of support from adjacent soil. The right of dis posal includes the right to destroy what one owns. A few kinds of things other than phys ical may be objects of ownership—patents and copyrights, for instance. Property is either movable or immovable — the distinction be tween real and personal is not quite the same, though nearly so. Property may be lawfully acquired by purchase, succession or prescrip tion. Gift is a mode of succession. The right of ownership is terminated by the death of the owner. A dead man is not a legal person.