those which do not involve a private person invested with a correlative right. For instance, the duties violated by smuggling, by polygamy, by breach of prison, by cruelty to brute animals, are not obligations to a private person but to the sovereign, and the rights of the sovereign, if he has any, have no limits but the limits of his might, and bear no resemblance to the rights contemplated by the Civil code, which are acts or forbearances, enforcible by appeal to a common human superior; for the sovereign, ex vi termini, has no human superior. All rights, then, imply correlative obligations, but not all obligations imply correlative rights.

Every legislation or system of laws is composed of a vast number of particular laws, having the same or analogous features, just as every tissue is composed of an infinity of threads, and every vegetable or animal organism of an infinity of cells: and having before our eyes the cardinal points of any individual law, by considering the division or differentiation of these cardinal points we may anticipate the leading divisions of the general mass of legislation.

Having given the definitions of these cardinal points, we will now notice some of their fundamental divisions.

The primary division of Rights, the one most necessary for forming clear conceptions on the subject, a division which, as far as my acquaintance with juristic literature extends, Austin was the first to make clear and luminous, is the division into Sanctioned rights and Sanctioning rights. This division of rights depends on a corresponding division of the Titles to which they are annexed.

Sanctioned, or primary, or final rights, are such rights as exist antecedently to any Wrong, rights whose Title or origin from which they spring, and which defines the person on whom they are conferred, is some circumstance other than a Wrong. Sanctioning, secondary, or instrumental rights, are rights engendered by a Wrong committed by some other person, rights conferred upon a person whose title to them is the fact that he has suffered a Wrong.

Wrong is the violation of right or duty, and may be defined as disobedience, intentional or negligent, to the command of the sovereign, entitling the wrongdoer to the Sanction, that is, to the evil threatened by the lawgiver. Examples of Sanctioned rights are the right of a proprietor to enjoy the fruits of ownership, the right of a contractor to the performance of the promise made by the person with whom he contracted, the right of every respectable member of society to have his honour unstained, his character

unimpeached. The corresponding Sanctioning rights, or rights of the injured party to redress, are the right of the dispossessed proprietor to be reinstated in possession, the right of the deceived contractor to have damages for non-performance or to have specific performance enforced by the court, the right of the slandered person to recover damages for slander.

The divergence of Rights into two classes, rights antecedent to wrong, and rights consequent on wrong, which we have referred to a divergence of Titles, flows immediately from the essence of Law, and may be deduced from its definition.

The essence of every Law is the injunction or prohibition of some given act and the menace of an evil in the case of non-compliance. Every law, that is to say, is at once Imperative and Punitory; it is only Imperative by being Punitory. So far as law is Imperative, it confers primary or sanctioned rights, and imposes primary or sanctioned duties; so far as it is Punitory, it confers secondary or sanctioning rights, and imposes secondary or sanctioning duties. A primary obligation may be defined as the burden imposed by the law in its first or imperative clause; a secondary obligation as the burden imposed by the law in its alternative or punitory clause.

Sanctioning rights only exist for the sake of Sanctioned rights. Accordingly, the latter may be called principal or final, the former instrumental or ancillary. So far as the existence of Sanctioned rights is dependent on the existence of Sanctioning rights, we might invert the epithets primary and secondary, which we have applied to them. I have no Sanctioned rights independently of the injunction or prohibition which declares that some act or omission is a violation of my right, and vindicates it by a Sanction civil or criminal. That is, my Sanctioned right or duty owes its existence to the injunction or prohibition of certain acts and to the remedy or punishment to be applied in case of disobedience. Accordingly, though looking at them as means and ends, we have called Sanctioning rights Secondary and Sanctioned rights Primary; yet if we looked at the order of existence, we might call Sanctioning rights Primary and Sanctioned rights Secondary.

Again, Sanctioning rights and duties are directly enforced by the courts, Sanctioned rights and duties only indirectly. Sanctioning rights and duties are not only immediately enforced, but also universally and invariably, except when there is a miscarriage of justice. Sanctioned rights and duties cannot be secured from

violation, even when the administration of justice is perfect: the sovereign can only induce, persuade, incline, to the observance of primary rights and duties, by holding out the inexorable alternative of secondary rights and duties; he cannot compel. As only secondary rights are directly enforced by the judicature, it might be alleged that these are the only genuine rights; that primary rights are merely imaginary, a fiction of philosophic jurisprudence: and it must be admitted that some secondary rights are the more prominent and constant object of the jurist than the corresponding primary rights. Thus the portion of primary rights that hereafter, as opposed to Acquired rights, we shall call Primordial rights (right to life, health, liberty, reputation, etc.) are never so much as mentioned by Gaius, nor, so far as I am aware, by any Roman jurist, but are only deducible from the corresponding Sanctioning rights, the rights that arise from violence, assault and battery, defamation, and the like. This obscuration of the Primary right in comparison with the corresponding Secondary right is, however, not invariable. The Primary rights of Status, Property, Obligation, are commonly recognized both in popular and juristic language as clearly as the corresponding Secondary rights, and we are quite justified in extending the division of Sanctioned and Sanctioning rights from these types where it is more strongly marked through the universal sphere of rights, that is, to those regions where the Primary rights have engaged a less amount of attention.

A second fundamental division of rights, common to all legislations, and ever present to the mind of Roman jurists, is the division into Real and Personal, or jus in rem and jus in personam. This division of rights depends on a division of the corresponding obligations. Every right residing in one person implies the existence of another person or persons on whom a corresponding duty is incumbent. The corresponding duty is sometimes incumbent on a determinate person or persons, sometimes on persons indeterminate, in other words, on the world at large. In the former case it is usually positive, that is to say, a duty of actual performance; in the latter case it is usually negative, that is to say, a duty of abstention or forbearance. Jus in personam is a right to acts on the part of a certain person, Jus in rem is a right to forbearance on the part of all persons. Examples of Real right are Status, Franchise, Ownership: examples of Personal

right are Obligations (in a narrower acceptation than we have hitherto assumed) arising from contract or delict. Jus in rem may be defined as a right correlating with obligations at once universal and negative: Jus in personam a right correlating with obligations at once particular and positive. Jus in personam implies the relation of debtor and creditor; Jus in rem is the right of use and of prohibition; a right of dealing with a thing without interference, and of excluding from all similar dealings the rest of the world.

It is to be observed that the expressions Jus in rem and Jus in personam are not classical. The classical expressions on which they are modelled are actio in rem, actio in personam; action to inforce a Real right, action to inforce a Personal right. Jurisprudence, however, requires terms to express this leading classification of Rights, and, as such terms are not supplied by the Roman jurists, the above mentioned, as, though barbarous, they seem on the whole to be most eligible, have been adopted, and will be employed in the course of this commentary.

A third important division of Rights is expressed in the terms Jura rerum and Jura personarum, rights given by the law of Things, and rights given by the law of Persons. But we may adjourn the consideration of this division until we examine the rights of Status, as we shall immediately proceed to do, Status forming the subject of the first book of the Institutions of Gaius.

The evil which constitutes a Sanction may consist in the loss of any of the rights protected by the sovereign. It may be the privation of political rights, the privation or diminution of property, or the privation of primordial rights-incarceration, compulsory labour, banishment, death.

The motives which sway the legislator in determining the nature and amount of the sanction are various. Sometimes the motive is simply the reparation of a harm inflicted. Sometimes the apportionment of the remedy is intended as an inducement to the aggrieved party to recur to the public judicature instead of redressing his own grievance, and, to use a common expression, taking the law into his own hands-an urgently pressing motive in the infant beginnings of society. Sometimes the end of the lawgiver is the prevention of the prohibited act by terrorism, by the menace of the sanction and the execution of the menace. Sometimes the sanction is retributive or vindictive, the expression of the conscience

or moral sentiments of the society. In humane legislations a collateral end of the sanction is often the reformation of the offender: this motive is confined to sanctions of the criminal code.

To a division of Sanctions corresponds an important division of jurisprudence. Some Sanctions may be enforced or remitted at the discretion of a private party, others are enforced at the discretion of the sovereign or state, and by the sovereign or state alone can the liability of the wrongdoer be remitted. This founds the division of the code or statute-book into the Civil code and the Criminal code.

But even the Civil code presents, more strongly marked in Roman law than in modern systems, a similar division of Sanctions. The principal end or object of some Sanctions, as above stated, is the redress of injury in the past, compensation or indemnity to the injured person for his violated primary right; the end of others is the prevention of injury in the future, terrorism, or the deterrence of future wrongdoers by exemplary punishment of a past offender. On this division of civil sanctions is based the division of civil suits into Rei persecutio and Poenae persecutio, a suit to recover property, and a suit to recover a penalty. A judgment may be bilaterally penal, that is, may both impoverish the defendant and enrich the plaintiff; or it may be unilaterally penal, that is, may impoverish the defendant without enriching the plaintiff, e.g. in a suit for indemnification, when the defendant has not gained in proportion to the loss he has inflicted on the plaintiff. A suit which is Rei persecutio may be unilaterally penal. Bilaterally penal suits, though common in Roman law, are unfrequent in modern legislations.

The sanction of a right or obligation, whether primary or secondary, is a motive addressed to the will of the person who owes the obligation, and is the prevision or anticipation of an intending wrongdoer, that his unlawful gain will be extorted from him, and commonly, an additional evil, loss, or pain will be inflicted on him by the irresistible power of the sovereign. The sanction of the primary obligation is the secondary obligation, and it is imaginable that the sanction of the secondary obligation should be a tertiary obligation, and so on; but this series of sanctioned and sanctioning obligations cannot proceed without a limit: if it did, every sanction might be defied and every obligation broken, and there would be no ultimate basis of obligation. But,