The Green Bag
570
treat Actions as a subordinate part of Things.
Austin's Plan is concisely and accur ately summarized by the editor of the Campbell edition, thus: The leading divisions contemplated in Austin's own system appear to be the follow ing. He adopts as his main division of the subjects with which the law is conversant,
persons, the legislative department of the United States will occupy the first place, the executive department the second and the judicial department the third. . . . As to the second great division of our municipal law, which relates to things, it may be all comprehended under one word Property. Claims, it is true, may arise from a variety of sources, almost infinite; but the declaration of every claim concludes by alleging a damage or demand.“
the twofold one of the Law of Persons,and the Law of Things. This division nearly corresponds with ]us Personarnm-jus
private property,
property real
and
Remm of the Civilians, or with ]us Qnod ad
personal, estates in realty, etc.
He
Persona: pertinePQnod ad Res pertinet, of the classical jurists; but differs from it in this respect, that instead of being, as with them, subordinated to the division of jus into Pnblr'cum and Privatum, and co-ordi nated with the ]us Actionum, it is held superior to all these divisions. The whole of the fur Pnblicnm and of the Law of Procedure is therefore distributed between the Law of Persons and the Law of Things, according as their several parts belong more properly to one or other of those main divi sions, in the wide scope attributed to them by the author.
Under this he speaks of public and
concludes this portion as follows : Property may consist of things in possession or things in action. Land, money, cattle, are instances of the first kind; debts, rights of damages and rights of action are instances of the second kind. These are prosecuted by suit.“
It will not escape observation that
Wilson and Austin agree in every essential particular. What deduction is to be made on the initial and most
important question which presents itself to any one attempting the arrangement
Law of Things. Austin distributes the Law of Things under two capital departments: (1) Primary rights, with primary relative dutes. (2) Sanctioning rights, with sanction
of our law? First: That as an historical fact from a time long antedating Lord Hale all our jurists who have actually
ing duties.
done something practical by way of arranging the law have ignored the division Public and Private. Second:
The first of these divisions is
meant to include law regarding rights, and duties, which do not arise directly or imme diately from injuries or wrongs; understand ing the word injury or wrong in the largest sense, e.g., including trespass or breach of contract. The second division regards rights and duties which arise directly and exclusively from injuries or wrongs; and includes the consideration of procedure, civil and criminal.‘0
Wilson's Plan, as stated by himself but which, however, was for a different
purpose, was as follows :— Our' municipal law, he says in his Law Lec tures, I shall consider under two great divi sions. Under the first, I shall treat of the law, as it relates to persons under the second, I shall treat of it as it relates to things. . . . In considering the law as it relates to "Austin's Jurisprudence, Campbell ed., xxviii and xxx.
There is general accord in the category of topics, except as to this matter of Actions and Procedure. This, practically speaking, leaves be fore us to be solved the matter of dis agreement, that is why Wilson and
Austin suggest that rights in action be treated under the division Things or Property, as per Wilson, or Things,
subdivision Sanctioning Rights, accord ing to Austin. Laying out of view the unbroken practice of several centuries, of treating 5' Wilson's Works, 45. ‘1 It is not quite clear that he intends to treat procedure within this title, but assume for the time that he does.
