And under this head we have First, the capacities themselves, which are especially two: Capacities which a man has in his own right. Capacities which he has in auter droit, or another's right. Now, capacities which a man has in his own right are, either To acquire or take. To alien or transfer. And both these are either Of things personal. Of things real. The second kind of capacities are in auter droit, in another right; as executors, corporations, cestuy que use, etc., whereof hereafter. The various conditions or circumstances of persons with relation to those capacities, consisting of Ability. And all persons are presumed in law able in either of those capacities of taking or disposing who by law are not disabled; and those that are so disabled come under the title of non-ability, though that non-ability is various in its extent, viz.: to some more, to some less, as in the several instances following: Aliens; here comes in the learning of aliens, as nat- Attainted of treason or felony; here of attainders. Infants; here of the non-ability of infants. Idiots and lunatics; here of that learning. Villeins (now antiquated). Bastards; and here of legitimation (62). § 71. Lord Hale's conception of "things." Again at section 23, the title of which is "Concerning the jura rerum," he says: "And although the connection of things to persons has in the former part of these distributions given occasion to mention many of those jura rerum as particularly annexed to the consideration of persons under their several relations, yet I must again resume many of them, or at least refer unto them; and this without any just blame of tautology, because there they are considered only as incidental and relatively; but here they are considered absolutely-in their own nature or kind, and with relation to themselves, or in their own nature, and the several interests in them, and transactions of them.' Obviously Hale's treatment does not warrant the criticism that he ascribed rights to things. He plainly says: "Civil rights of persons are such as do concern the persons themselves or such as relate to their goods and estates" (63). This leads one to believe that Professor Austin did not diligently endeavor to ascribe a reasonable meaning to the treatment of the subject by Hale as followed by Blackstone. 62 Hale's Analysis, sec. 1. es Hale's Analysis, sec. 1. § 72. Substantial difference between Hale and Blackstone. The difference, in substance, between Hale and Blackstone's treatment and the treatment of the same matter in the Roman law consists in this: that inasmuch as all objects of rights, tangible or intangible, which the law protected, were under the Roman system "things," and consequently would fall under the jura rerum or law of things, Hale and Blackstone transferred from the law of things to the law of persons all such rights as do immediately concern persons themselves, and left under the rights of things interests of persons in goods and estates, and obligations from others, because they are in their own nature things separate and distinct from the person, as put by Hale, or external objects unconnected with the person, as put by Blackstone. § 72a. The English conception of these words. Dr. Hammond says: "And if our belief as to Blackstone's true meaning and method be the correct one, he could finally have informed Mr. Austin that what he proposed to do in the Commentaries was to transfer to the law of persons, or to locate in the proper place among the rights of persons, all such rights (and duties) as belonged to all persons alike, except such as had for their object 'external things unconnected with the person.' "This last is in truth the cardinal point of the whole matter. Blackstone adopts (he should have said, from Hale) as his definition of a 'thing,' one quite different from that employed by the classical jurists; and all the departure from civilian precedent that can fairly be charged to him depends on, and is to be explained by, this changed sense in which he uses the word 'thing'" (64). Blackstone's use of the word "thing," if we have attended his language, is "external objects unconnected with the person. "These objects are not always tangible, as we shall see later, though they were termed personal property or choses in action. Dr. Hammond says: "Things are objects of rights, and, since Blackstone's time, the term has been confined in our law to external things unconnected with the person, such as land, chattels personal, etc.” (65). This is misleading, perhaps, in ascribing those changes to Blackstone. Dr. Hammond continues: "Prior to Blackstone's time the term 'things' had a much wider comprehension; it was identical with the objects of a right, whether that object had a tangible existence or not. Health, liberty, reputation were things in this sense; and even the indefinite imaginary objects of obligations, having no real existence, were also included under the term" (66). Dr. Hammond is not accurate as to the time when this change in the meaning took place. One would suppose that Blackstone ascribed a new meaning to the words "persons" and "things," and recast the law of England in conformity therewith, whereas he only followed Hale in the use of these terms, and in so doing has received some criticism; and it would seem but fair for a person living in a later age to presume that Hale ascribed to 64 Sandars' Justinian, Introduction by Hammond, pp. 55, 56. 65 Hammond's Blk. 332, note. these words a meaning which was natural and in conformity with the English use of terms. We are not, however, left to a matter of presumption. § 72b. The word "chose" unknown in Roman nomenclature. It is only necessary to examine the Commentaries of Blackstone and to remember the prior history of English law to understand that by including under the term "things" only those objects of rights which were denominated in the English law either real estate, chattels or choses in action, Hale and Blackstone did no violence to the vernacular of England. The word chose was a French (or Norman-French) word, and, though its derivation is from the Latin causa or thing, its meaning corresponded to the things personal, in possession and in action as used by Hale and Blackstone. Undoubtedly, this is one of the ideas which grew out of the NormanFrench occupation of England which was inaugurated by William the Conqueror (67). When we contemplate lands and chattels, and then add to it what was embraced within the word chose in possession and chose in action, you have bounded the objects included by the word "things" in English law. A chose in action was a right to receive or recover a debt, or money or damages for a breach of contract, or for a tort connected with a contract or connected with chattel property (68). 67 See 1 Schouler, Personal Prop. (2d ed.), § 11. 68 See 1 Wilson's Works, 46; Bouvier's Dictionary; Gillett v. Fairchild, 4 Denio, 80; 2 Kent, Com. 351, "The term 'chose in action' is one of comprehensive import. It includes the infinite variety of contracts, covenants and promises which confer on one party a right to |