14 



JUDGE GEORGE H. SMITH^ ON 



It is to be observed that rights of Ownership cannot be 

 directly enforced by actions, but only indirectly, by enforcing 

 the obligations for restitution or compensation. Hence it is 

 said, and the observation is of fundamental importance : 

 " Obligations are the mothers of actions." 



Here it is observed, that a right, whether in rem or in 

 personam, is defined by Thibaut, and, in effect, by Austin, 

 Amos, Holland, and others of their school, as oieither more nor 

 less than a legal power to compel." But this definition can apply 

 only to rights of obligation or rights in personam ; which alone 

 are susceptible of being directly enforced. 



A right in personam or of oUigation, therefore, would seem to 

 consist in the pouter of coercing the obligor, and in fact, it may 

 be so defined. But in another aspect of the case, i.e., if we 

 have regard to the owner of the right, pozver is but another 

 name for liherty ; for the power, and the liberty to act are the 

 same thing ; or rather both terms express the same essential 

 notion, namely : the faculty of acting {facultas agendi). The 

 specific difference between the two classes of rights is, there- 

 fore, that in the case of rights of obligation, the act which the 

 owner has the right to do, or refrain from doing, is to coerce 

 the obligor ; whereas, with regard to rights of ownership, this 

 is not the case. Hence, in either case, the right may be said to 

 consist in the liberty to act {facultas agendi), and both classes 

 of rights, therefore, come within the definition of a right as the 

 rightful or jural liberty to act in a specific case, or class of 

 cases. Or in place of the term liherty, we may use indifferently 

 the term power ; which, in this connection, is equivalent. 



The distinction between rights in rem and rights in personam, 

 corresponds to the more familiar distinction made by the 

 Eoman jurists between dominium and ohligatio. 



I use the expression " Rights of Ownership " in place of 

 " Eights in rem," as the more appropriate term. Accordingly, 

 Jurisprudence may be regarded as including two principal 

 subjects, namely : Oivnership and OUigation ; to which, for the 

 lawyer, there is to be added the subject of Actions. 



Of the Suhject- Matter of Bights. 

 To complete our analysis of the subject, it will be necessary 

 to explain certain other notions essentially involved in the 

 notion of a right, namely, the notions of Person, Thing and Event. 

 These, together with the notions of liherty to act, and rectitude, 

 embodied in the definition of a right, constitute the Buhject- 

 matter of Jurisprudence, and under that title have been treated 



