California Review Volume XXVIII MAY, 1940 Number 4

Things CarletonKemp Allen* pROBABLY there is no word in the English language so elastic and elusive as the word "thing." Its vagueness is well shown by the fact that we have recourse to it as a pis aller when we cannot dis- cover any other term which precisely expresses what we wish to convey. In the New English Dictionary, I find eighteen separate meanings attributed to the word (exclusive of many subsidiary meanings), all of them widely and in some respects fundamentally different from each other. Among them is this: "An entity of any kind; ... that which is or may be in any way an object of percep- tion, knowledge, or thought." I It is difficult to conceive a wider con- notation for any word than that. It is not surprising, therefore, that in the use of the term in law and jurisprudence great obscurity pre- vails. Any close examination of the conception brings us to the verge of a realm of metaphysics which would be quite inappropriate to legal discussion. If one understood with exactitude the true nature of this word in its many shades of meaning, one would have mastered the whole mystery of consciousness and perception, appearance and reality. We must be content, therefore-unsatisfactory though the admission is-to say with Austin2 at the outset of our inquiry: "In drawing the line, by which Persons and Things are separated from Events, I content myself with vague expressions, and am far from aspiring to metaphysical precision. If I attempted to describe the boundary with metaphysical precision, I should run into enquiries which my limits im- periously forbid, and which were scarcely consistent with the purpose of * Oxford Secretary to the Rhodes Trustees and Warden of Rhodes House, Oxford; of Lincoln's Inn, Barrister-at-Law; sometime Fellow of University College and Pro- fessor of Jurisprudence, Oxford; M.C., MA., D.C.L.; author of LAw aT = MAINwG (1927); BIuaAucRACY TRiuzANT (1931); LeGAL DuTnas (1931); and of articles in legal and other periodicals.

19:2 NEW ENGLIsH DICTIOxARY (1919) 308. 21 Aus=n, L cuaRs ON JuRIsPRuENcE (3d ed. 1869) Lect. XIII, p. 369. CALIFORNIA LAW REVIEW [Vol. 28 these discourses. If I endeavoured to define exactly the meaning of 'perma- nent object,' I should enter upon the perplexing question of sameness or identity. If I endeavoured to define exactly the meaning of 'sensible object,' I should enter upon the interminable question about the difference between mind and matter, or percipient and perceived. And, in either case, I should thrust a treatise upon Intellectual Philosophy into a series of discourses upon Jurisprudence." We shall clear the ground if we first consider one of the more intelligible and limited meanings of this term in law. A very common object of a legal right is what we usually call a material thing; and it is well to consider its comparatively simple nature in the first in- stance, because we shall find that the real difficulties of this subject occur when we begin to speak about so-called immaterial things. Definition is hard put to it to describe clearly a material thing. I turn again to the New English Dictionary.A thing in this conno- tation of it is "a being or entity consisting of matter, or occupying space."' Shortly, a "part of matter," a "piece of matter." Concen- trating on the quality of perceptibility, Holland4 ventures: "a per- manent external cause of sensations." Similarly Austin" defines thus: "Things are such permanent objects, not being persons, as are sensi- ble or perceptible through the senses. Or (changing the expression) things are such permanent external objects as are not persons." He insists, rightly, on the element of permanence, and on this ground distinguishes a thing from a fact or event, which is a transient object of perception. A corporeal thing, to have any existence in law, must possess some kind of continuing identity. What degree of con- tinuance or permanence it must possess cannot be exactly formu- lated. A piece of ice which, in a warm temperature, is necessarily of a transient character, is a thing in law, and can be bought and sold, owned, possessed, and stolen with the usual legal consequences. So with innumerable things which, in their very nature, are "perish- able." But I think one would hesitate to call a puff of smoke or a cloud of steam a thing in the legal sense. Is a measurable quantity of invisible gas a thing in law? In Regina v. White' the court felt no difficulty in holding that it was. "There may be larceny of gas," said Lord Campbell, C. J., "... as well as of wine or oil ....There is nothing in the nature of gas to make it not the subject of lar-

3 9:2 NEW ENGLISH DICTIONARY (1919) 309. 4 JUaiSPRuDENCE (13th ed. 1924) 103. 5 1 AusTiN, op. cit. supra note 2, at 368. 6 (1853) Dears. C. C. 203. 19401 THINGS ceny .... ",7 Electricity is, by statute, larcenable; or rather, the Lar- ceny Act' makes it an offence (re-enacting previous acts), punishable ((as in the case of simple larceny," to abstract, etc., electricity, though it does not describe the offence as being actual larceny of a chattel. Is a smell a thing in law? It may undoubtedly be the subject of a nuisance, but could it be the subject of a trespass? Can we say that a man who creates excessive smell or noise on his premises is main- taining a "Rylands v. Fletcher object" for which he will be absolute- ly liable when it escapes? In Hoare & Co. v. McAlpine,9 Astbury, J., held vibration to be a "Rylands v. Fletcher object"; but this finding was unnecessary to an otherwise quite ordinary decision on nuisance; it stands alone, so far as I am aware, and it seems highly question- able.'0 Austin's test of permanence, or continuance of identity, seems necessary here. A thing is no less a thing in law merely because it is intangible; nor does it pass into the category of the "incorporeal" merely because it is intangible, for, as we shall see, incorporeal things are not such as possess an impalpable body, but such as possess no body at all, existing only in notion. But it would seem that an in- tangible corporeal thing, in contemplation of law, must have some calculable "body" in composition, dimension or locality, or in all three; and measured or measurable quantities of gas, electricity, steam, and similar forms of power may acquire definable identity in this way, whereas vibrations of the atmosphere, and a fortiori the atmosphere itself, are irreducible to any identity of form or dimen- sion. Will they always remain so? Atmospheric or etheric vibrations, in the form of radiated waves, have become one of the most impor- tant forces in the world, and at any moment a legal question may arise whether they are capable of property or possession. He would be a bold lawyer who would pronounce in advance on the juristic problem which would then arise-a problem no more fanciful than in the case of electricity itself-but it seems likely that most States will cut the knot (as they have done with the favourite old academic problem of trespass by aeroplanes) by legislative provisions. To continue with Austin's distinction between things and persons, it clearly does not coincide with the distinction between the animate and the inanimate. It is true that the majority of things-in-law are 7 Ibid. at 206. 8 6 & 7 Go. V (1916) c. 50, § 10. 9 [1923] 1 Ch. 167. 10 See Pollock, Note (1923) 39 L. Q. Rav. 14S. CALIFORNIA LAW REVIEW [Vol. 28 inanimate. The very word, in one of its many acceptations, denotes that which is not sentient. To call a human being a thing is to deny the essence of his humanity. "You blocks, you stones, you worse than senseless things!" is the most contemptuous objurgation which the in Julius can hurl at the dull-witted populace. But until comparatively recent times millions of enslaved human beings were, for many purposes, thingly; and animals, alive and dead, are things-in-law-indeed, the very word "chattel," which covers a very large class of things, means an animal. Wild animals, it is true, do not take on the full character of things-in-law until, being tamed or "reclaimed," they come within the scope of effective possession and give rise to "qualified property," which means, in effect, property defeasible on loss of possession. Before possession is acquired, it may be doubted whether animals ferae naturaeare things at all in any true legal sense. Their existence, and even, in some circumstances, their individual identity, are facts of nature which may be relevant to legal issues of many kinds; for example, they may be protected by legislation and to destroy them may be a criminal offence, but in themselves they do not seem to accord with the true conception, which I will endeavour to suggest, of a thing in law. The essential difference between person and thing seems to lie in the quality of volition. Animate creatures clearly possess some kind of motive-power which corresponds with the human will; it may be a very strong force indeed-thus if we wish to attribute to a man a particularly obstinate will, we compare him to a mule. But it is not a kind of will which is recognized by law; it cannot, in modern societies, involve the creature which exercises it in any consequences of right or liability." Nor do we attribute to the creatures what is closely akin to this volitional capacity, that is, the power of reason. Hence a thing has been defined by a German Pandectist, who is followed by Hol- land,' 2 as "a locally limited portion of volitionless Nature." From this distinction follows the corollary (emphasized by Austin) that persons are essentially capable of rights and duties, 11 Since an idol is a common form of juristic person in Hindu law, there seems to be no reason why a sacred or deified animal should not, by incorporation, be made the subject of legal rights and duties. It is well known that in many primitive systems of law, an animal, or even an inanimate object, which had caused bloodshed was deemed liable for blood-guilt and was subject to solemn process of condemnation. See Genesis ix:5, and Exodus xxi:28. See also 2 PoLLocK and MATLAnD, HISTORY OF ENGLiSu LAW (1898) 472-473 on the "bane" in English law, and cf. the Roman "noxal surrender" and the English deodand; 2 VINOGRADOYF, HISTORICAL JURISPRUDENCE (1923) 185. 12 Loc. cit. supra note 4, translating BARON, PANDEKTEN, § 37. (Italics added.) 19401 THINGS while things are incapable of either. This is self-evident with regard to inanimate objects; and we have seen that it applies also, in English law at least, to all animate creatures other than human beings. When we come to distinguish different kinds of corporeal things- in-law, we need more than ever to warn ourselves against excessively elaborate classifications. It is easy, but it is not necessarily profitable, to divide so vast a subject-matter as things into an almost infinite number of categories. One trembles to think what Bentham would have made of the task! If we are to classify, we must have, at the outset, some clear principle of qualitative distinction and some con- sistent purpose in view. Hereon Austin 8 makes a wise observation: "The chief reason for defining and distinguishing things in the law, or in the expositions of it, is in order that dispositions of things and contracts relating to them may be facilitated; that parties may know the effect of using such and such expressions in contracts and conveyances."

We need not limit the purpose to "contracts and conveyances"; but, in an attempt at juridical analysis, we should confine ourselves to such distinctions as correspond to substantial legal, and not merely metaphysical or artificial, differences. Thus, little light is shed on the essential nature of things-in-law by the English distinction between realty, on the one hand, and things personal and chattels real, on the other hand. In the broadest sense, land and objects upon it are the most palpable "locally limited parts of matter" in existence. Nothing could possibly be more "cor- poreal," and in English law we give this extremely thing-like thing the clumsy name of "corporeal hereditament," to distinguish it from certain descendible interests in land which have not the same physical concreteness. But every beginner knows that land is not a thing in law, and that all objects of property other than land and its appurte- nances are chattels. This dichotomy, like the Roman categories of res mancipi and res nec mancipi, takes us back to the time-a time, indeed, which still continues among many primitive peoples-when land and livestock were practically the only economic assets in society; and this suggests a view of legal things as units of wealth to which I will return. The hybrid known as the chattel-real is, of course, a monstrosity. It is not truly a chattel, and it is not "real"- the utmost that can be said of it is that "it savours of the realty." It is merely an accident, though a very convenient one, resulting from 18 1 AusTiN, LwrvuRs ON JuRLSRuDONcz (Campbell's ed. 1875) Lect. XIII, p. 246. CALIFORNIA LAW REVIEW [Vol. 28 the historical development of conveyance and devolution in English law, and it finds no place, except as a freak, in the museum of legal things. Nor are we helped greatly to the understanding of a legal thing by the bewildering, but highly important, distinctionbetween things in possession and things in action. Is a chose in action really a chose at all? Far be it from me to add to the many unavailing attempts to define that extraordinary medley of legal and equitable by-products which ranges from a debt or a negotiable instrument to a ticket in a Derby sweep;1 4 nothing which we attempt to lay down in general terms about choses in action will be true of all choses in action; but I will be bold enough to say that I cannot regard a chose in action as being, strictly speaking, a thing at all, for it seems to me to be merely a description, or delimitation, of the subject-matter of a right. It is a measure of something which a man is entitled to, and which, if his right is disputed, he can get--or perhaps it would be more accurate to say, he hopes to get, for there is always this somewhat speculative element about a chose in action, and every transferee of it takes a risk-by suing for it. It is a "quantification" of something not in possession, the future possession of which is guaranteed by law. Clearly it is not identical with the actual thing which can be "reduced into possession"; a bill of exchange is not the same thing as the money which can be claimed on it.'5 Nor is it identical with the right to enforce the claim, though it is constantly confused with that right -and, indeed, there are some choses in action which are very difficult to distinguish from bare rights, such as a right of re-entry on non- payment of rent or on non-fulfilment of a condition in a conveyance, which old books tell us are to be regarded as choses in action.'" Why, then, are choses in action so carefully set apart as a separate class of "things," instead of being regarded.simply as common forms of rights of property or rights of action? I think the answer is twofold, and lies solely in convenience. First, the subject-matter of a chose in action is

14Jones v. Carter (1845) 8 Q. B. 134, 138. 1 5 It may be said that a bill of exchange is very definitely a corporeal thing, almost equivalent, in some circumstances, to currency. The paper on which it is written is cer- tainly a thing, capable of trespass, conversion or larceny; but what is expressed on the paper represents only a claim, which is not the same as the money claimed. It is other- wise with any bank note which is legal tender. 1 6 Winter's Case (1572) Dyer 308b; BRO. ABR. *137, 9 14; Co. Lxnr. *214. This type of "chose in action real" is, however, scarcely recognized today, and may be re- garded as an antiquity of the law. 1940] THINGS usually res certa,17 and it is therefore possible and convenient to deal with it as if it were the res itself. Second, a great many, though by no means all, choses in action, being res certae, invite and are easily sus- ceptible of transfer, and at an early stage, encouraged by equity, they revolted against the harsh common law rule which trammelled them and began to pass from hand to hand by assignment or negotiation, until, by 1878, a Lord Justice was able to say: " ... anyone who enters into a contract with A. must do so with the understanding that B. may be the person with whom he will have to reckon."' 18 These two qual- ities of definiteness and transferability bear a strong resemblance to the characteristics of choses in possession, and have led to a pardon- able transference of ideas, but they should not blind us to the essen- tial unthingly nature of the chose in action. Except when our courts have to deal with foreign systems, not much importance attaches, in English law, to the distinction between movable and immovable things-indeed, the distinction has been described by high authority as "unknown to our law."' 9 The reason, so surprising to most foreign jurists, is that those things which, in common speech and conception, are most obviously immovable are not things at all, but realty, according to English doctrine. Strictly speaking, there is only one truly immovable thing on earth, and that is the earth itself, with the buildings upon it, and nowadays not even buildings are entirely immovable, for they may be, and frequently are, transported bodily or in sections.' Things growing upon the land are part of it and are not separate corporeal things, but are "inter- ests in land," though, as every student of the Statute of Frauds is aware, when they are separated from the soil as fructus industriales they cease to be interests in land and become chattels. Except a few movables, like heirlooms, which are deemed immovable "by institu- tion," to use Austin's phrase-so that, "the thing, though physically

17Not invariably, however, for there is some authority for regarding a right of action for unliquidated damages for breach of contract as a chose in action, and even, according to some, a right of action in tort. See Brodhurst, Is Copyright a Chose in Action? (1895) 11 L. Q. Rxv. 64; Elphinstone, What is a Chose in Action? (1893) 9 ibid. 311; Sweet, Choses in Action (1894) 10 ibid. 303; Williams, Is a Right of Action in Tort a Chose in Action? (1894) 9 ibid. 143; Williams, Property, Things in Action and Copyright (1895) 11 ibid. 223. 18 Bramwell, L. J., in Brice v. Bannister (1878) 3 Q. B. D. 569, 581. 19 Farwell, L. J., in In re Hoyles [19111 1 Ch. 179, 185. 20 It is hardly necessary to observe that a great deal of case law and statutory in- terpretation surround the definition of the word "building." In the broadest terms, it seems to be any structure with walls and a roof, erected on (though not necessarily CALIFORNIA LAW REVIEW [Vol. 28 movable, is arbitrarily annexed to an immovable thing, so as to be considered as a part of it, and to be comprised in its name" 21-all material objects, capable of ownership, other than land and its appur- tenances, are chattels personal, or, more simply, chattels, or, more simply still, things. This is only another way of saying that all mov- ables, and only movables, are things in English law; for everything that is not realty is movable. It does not matter how huge or how un- wieldy the thing is, it is still a movable if it is not "planted to the soil." A great ship is probably the largest single object produced by man, and nothing will move it but mechanical power, but it is certainly a movable and a chattel. The only difference between wieldy and un- wieldy objects in law is one of practical convenience; handy things are easily transferred by simple delivery, and he who has them in his control has manifest de facto possession, whereas the possession of unhandy things must often be transferred notionally, by agreement or what the Romans called traditiolonga manu; and then the posses- sion, though no less firmly grounded in law, is less manifest and, in some circumstances, less easy of proof. But this is mere matter of machinery, and once a thing is in the class of chattels it is of little relevance in English law whether we call it, in the popular sense, movable or immovable. In this respect we are peculiar, and conse- quently we have to revise all our ideas when we come to deal with foreign systems of law. In private international law, the distinction between movables and immovables, though here again the terms are used in highly artificial senses, is fundamental throughout the whole law of property; but since the distinction is governed by the lex situs of the property in question, and thus involves the variations of innu- merable different legal systems, the consideration of it would carry us far beyond the limits of the present discussion.

attached to) land, and possessing some quility of permanence or durability. See Byles, J., in Stevens v. Gourley (1859) 7 C. B. N. S. 99, 112. Any structure on land not amounting to a building is, of course, a chattel. What is the legal classification of a building in the course of transfer, in its entirety, from one site to another? I do not know of any English decision on this point, though it may have arisen in the United States. [Where the problem has arisen in the United States, it has been generally held that removal of the building from the land converted it into personalty, although con- flict arises on the necessity of an intention that the removal be permanent. See 2 TnANY, REAL PRoPRT"r (3d ed. 1939) § 623. In California, it is well settled that actual removal of a building, even though accidental or wrongful, changes its status from realty to personalty. Buckout v. Swift (1865) 27 Cal. 433; Stowell v. Waddingham (1893) 100 Cal. 7, 34 Pac. 436.-Ed.] 212 AusnTi, op. cit. supra note 2, Lect. XLVI, p. 805. 19401 THINGS

Our law knows corporeal and incorporeal, but not corporate things; and perhaps that is a blessing, for it saves us from the mys- teries and controversies which surround the corporateness of persons. Fortunately for jurisprudence, things cannot possess a will, and we are relieved of problems about the Separate-will and the Together-will of objective things. Nevertheless, totalities of things do possess a sort of corporate identity, as the Romans clearly recognized in their useful distinction between the res singulae and the universitas rerum. Just as the corporate person is distinct from the individual persons who compose it, so the collective thing is distinct from the separate things which go to make it up. It is obvious that there are a great many more collective things than collective persons-indeed, there are few things which are not, in one aspect of them, collective things. A human person cannot be divided into parts each possessing a separate personality; but almost any thing which one can think of, whether a natural object or artificially made, can be reduced to a number of component parts, each possession a separate identity as a thing. The number of compo- nent elements may be enormous. Each brick of a house is a separate chattel. To revert to the example of a ship, it is a gigantic universitas rerum; if there is an inventory of all the res singulae contained in the Queen Mary, it must run to many volumes. Yet the Queen Mary is as definitely a thing, in contemplation and in reality, as the smallest rivet which it contains. At what point does a plurality of things become a collective thing? When does the potter's clay become a pot? Or the paints and canvas become a picture? Or the bricks and mortar become a house, a question relevant to claims of quantum meruit on building contracts? Or the boat-builder's materials become a ship-a question which may be decisive on a claim for salvage? 2 I do not think that the law troubles itself greatly with refinements upon questions like these. Common sense and common experience usually decide when a number of separate things, notionally incorporated together, assume a collective identity. Nevertheless, the conception of a totality of things is of constant importance in the law, since the identity of the totality remains, as the subject-matter of many rights, whatever changes may have taken place in the component parts. The familiar Roman example was that of a flock of sheep, which still remains a flock even if reduced by vis major to one animal, and the sole survivor is all that the vendor is bound to deliver, if he has sold the flock as a flock; whereas if he has contracted to sell a hundred sheep, no uncon- trollable losses excuse him from delivering a hundred sheep, or paying 22 See The Gas Float Whitton No. 2 [18961 P. 42. CALIFORNIA LAW REVIEW [Vol. 28 damages in lieu. The same principle is familiar in the sale of crops, not being "specific goods" intended to be grown on specified land.' Perhaps the most important type of thing-plurality in English law, or possibly in any system of law, is the notion of a man's estate. This is a universitas, if ever anything was; the very word, suggesting a proprietary status or condition, seems to indicate something more than a mere congeries of objects. It is needless to say that the estate, until it is transmitted into the property of another or of others, retains very strictly its character of a totality, whatever changes may take place in the value of its component ingredients. The difference between the singular and plural of things suggests the Roman distinction (followed by some modern jurists, e.g., Aus- tin) between specific and generic things. It is trite learning that it may be of importance in various legal transactions-for example, in sale, in bequests and in remedies for specific delivery-whether things are identified specifically or described as a class. But I would submit that no real quality of difference in the nature of things is denoted by these contrasted terms. Indeed, thus used, they seem to involve a certain inaccuracy of language. I apprehend that there can be no such thing as a "generic" thing, though there may be generic descrip- tions of things; and every so-called generic thing is, in the eye of jurisprudence, merely a specific thing belonging to a named class of things. The classes of things which may be called into existence in this way are infinite, since they depend solely on individual language and choice; they possess, in themselves, no juristic significance. A very important distinction, which still has a value in modern systems, was drawn in between res in patrimonio and res extra patrimonium, or, owned and non-owned things. Owned or ownable things explain themselves, being all actual objects of property or possession (excepting realty in English law, though not, of course, in Roman law and its derivative systems). Setting aside some minor classes which need not detain us, things extra patrimonium were "things common to all" (res omnium communes); that is, things, so-called, like the atmosphere and the sea, which were nobody's because they were everybody's, and "nobody's things" (res nullius) which comprised only certain things (sacrae, religiosae and sanctae) of religious significance, including things associated with the dead- these were considered to be divini iuris and therefore incapable of

2SHowell v. Coupland (1874) L. R. 9 Q. B. 462. 19401 THINGS human property. This, at all events, is Justinian's classification,2 and it is somewhat curious, because it does not include a class of things which are commonly thought of as res nullius--all those things which, though not actually owned, are capable of being reduced into ownership by adverse possession, or . These are of a different nature from res communes, which cannot be reduced into ownership. Everybody's thing (say, the sea) cannot become any- body's thing, but nobody's thing (say, a wild animal) may become somebody's thing. I have suggested already that a res communis is not really a thing in law at all, and that a res nullius only begins to be a thing when it is taken into possession. But it is a very easy process by which nobody's thing becomes somebody's thing, for most systems of law-certainly the Roman and the English-abhor a vacuum in ownership. The reason is economic; useful things should be turned to the service of man; and the Romans carried this principle so far that in the early period a vacant inheritance could be acquired by adverse possession (usucapio) for so short a period as a year. Black- stones¢ writes, in his sonorous way: "And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to everything capable of ownership a legal and determinate owner." As befits a people addicted to field sports, the English, since the days of the forest , have accumu- lated a huge amount of statutory and case law concerning the com- monest of ownerless things, wild animals and game. Formerly there were certain other kinds of ownerless things-waifs (stolen goods thrown away by the thief in his flight), estrays, wrecks, and flotsam, jetsam and lagan in tidal waters2 8 -which were claimed by the Crown as part of its prerogatives; they are not now of any great impor- tance,' but the Crown's right of claiming treasure-trove which has been hidden animo revocandi is far from obsolete, and may still give

2I.2.1.7. Gaius, in the corresponding passage (2.2) does not use the term res nullius, but mentions only the distinction between res divini iuris and res humani iuris. 25 See, however, 1.2.1.12, and G.2.67. 26See Ho u-xs, THE Com1m-ox LAW (1881) 237. 27 2 BL. COMi . *15. 28 See Sir Henry Constables Case (1601) 5 Co. 106a, and 2 Co. INsT. *167. A wreck lying on the bed of the open sea appears to be a res nullius capable of occupatio by acts of salvage. The Tubantia [1924] P. 78. 2 9 Much curious lore about royal and other fowl is assembled by Coke in The Case of Swans (1592) 7 Co. 15b. The "royal fish," whale, and sturgeon, when cast ashore or caught near the coast, belong to the Crown by prerogative. 1 BL. Coans. *290. CALIFORNIA LAW REVIEW [Vol. 28 rise to substantial claims.30 Probably the most important and valuable type of ownerless things in any community are the bona vacantia which accrue to the State in the absence of any heir or next-of-kin entitled. These are among the rare examples of things which, being by origin and nature objects of property, suffer a gap in ownership, but are speedily rescued from it;"' whereas the naturally ownerless thing, like the wild animal, may be submitted, so to speak, to a parenthesis of quasi-ownership, but, on being lost from possession, reverts to its natural condition of ownerlessness. With regard to things other than treasure or waifs, which have been abandoned by their possessors, some doubt exists. There is respectable authority for saying that a man cannot divest himself of possession by mere abandonment,32 and it is at least certain that the possessor of a thing which causes damage cannot get rid of his liability by abandoning the cause of the injury; 3 but without entering upon this difficult question, we can say with confidence that a corporeal thing aban- doned by its owner or possessor does not lose its essential character as a thing in law during the interregnum. The Roman classification of res sacae, religiosae and sanctae- artificial and somewhat obscure even in the Roman system-has no relevance to English law, except in so far as res religiosae remind us that things associated with death are of a peculiar nature even in modern law. Since burial-grounds and churchyards are realty, we are-not here concerned with them or with the curious law of prop- erty which has grown up around them;" ' but what of the dead them- selves? A dead person is not a person; is he or she a thing? A corpse, as everybody knows, is not a subject of property nor of larceny; a man has no property in his own body, alive or dead, and certainly not in anybody else's body, alive or dead. Yet corpses are the sub- ject of much special legislation; an injury to a corpse may give rise to a claim for damages by a relative who is nervously shocked by the contretemps;a5 and executors have possession of the remains of their testator. But it seems that nobody else may have possession, and a 20 See, e.g., Attorney-General v. Trustees of The British Museum [1903] 2 Ch. 598. 81 Itis even suggested that the possession of bona vacantia may never be lost, but may reside in "a person who cannot be ascertained." PoLrocx and WhIGHT, PossEssIoN iN = CoammoN LAW (1888) 124. 821bid. 83 Dee Conservancy Board v. McConnell [1928] 2 K. B. 159. 84See, e.g., Hosklns-Abrahall v. Paignton Urban Dist. Council [1929] 1 Ch. 375. 85 Owens v. Liverpool Corp. [1939] 1 K. B. 394. 19401 THINGS

ghoulish attempt by a creditor to retain a lien on a dead body as security for a debt has, ere now, been defeated on the ground that no possession vested in him.36 In Williams v. Williams,37 an unseemly wrangle arose over the Patroclean body of an eccentric testator. He directed his executors to deliver his corpse to his friend Miss W., to be disposed of as he had directed her. In a private letter he instructed Miss W. to burn his body and place the ashes in a certain vase. The executors disregarded the direction in the will and buried the de- ceased in unconsecrated ground. Miss W. obtained from the Home Secretary a licence to disinter the body and remove it to consecrated ground. Having thus possessed herself of the remains, she, in gross fraud upon the licence, removed the body to Italy and there cre- mated it. The will had given directions for the executors to reim- burse Miss W. the expenses of cremation, and for these expenses she, being evidently a very determined woman, now sued. Kay, J., felt no difficulty in holding that Miss W. had never had lawful pos- session of the body and therefore could sustain no claim. What sort of a thing is this which cannot be owned, but can be possessed, though possessed only by executors? Could executors maintain an action for trespass to a corpse? The counsel of prudence is to say that a dead body is, in English law, a thing or an object sui generis. In Coke, it is called "but a lump of earth."3 It is certain that the dead can have no rights against the quick; even the trappings of death, such as shroud and coffin, belong not to the deceased, but to the living person to whom they previously belonged;3 9 and not even the reputation of the dead is protected by the law of defamation. The things "common to all" are air, running water (including the sea), and light;40 and I would repeat that it is only by analogy that they can be regarded as things-in-law. Blackstone' has a curious passage in which he assimilates them to wild animals and speaks of them as things "which a man may occupy by means of his windows, his gardens, his mills, and other conveniences.... ." But this is figura- tive only, or, if it is intended to be literal, it is not a correct state- ment of the present law of England. At one time there was in our

3 6 The Queen v. Fox (1841) 2 Q. B. 246. 87 (1882) 20 Ch. D. 659. 3 8 Haynes's Case (1614) 12 Co. 113. 89 Ibid. 40 The Romans added the seashore, which is, of course, realty, and certainly not "common to all" in English law. 41 2 BL. Comm. *14. (Italics added.) CALIFORNIA LAW REVIEW [Vol. 28

law a theory, or the germ of a theory, that a man might acquire by ancient lights a right to a definite "pencil of light"; but the false doctrine was disposed of in Colls v. Home & Colonial Stores, Ltd.,' and there appears to be no such thing ownable or possessable in our law. The most that can be claimed is the right not to be subjected to a nuisance. The same, it is believed, is true of the air. There can be no right, attached to property, to a general passage of air not flow- ing in any definite channel,3 in other words, to the completely free circulation of the atmosphere over one's premises, for this is a nat- ural right subject to the same natural right of neighbours;4 4 but there can be an easement of air to a definite aperture or through a definite channel' though it has never been suggested, so far as I know, that a definite quantity of air can be acquired by "occupation," and the law concerning easements of air seems to be based on the same prin- 4 ciples as easements of light. 1 If we include the oceans of the world, water in its natural state is the largest tangible res communis on earth. So far as I know, no rights of any kind can be established over salt water, as such; it is not a thing in law. Apart from the international law concerning ter- ritorial waters, international fishing conventions, and municipal fish- ery laws, it does not seem possible for any person to establish do- minion or possession over any particular area of sea-water, 7 though there is power within admiralty jurisdiction to restrain "injurious acts" on the high seas which are very similar to acts of trespass to a particular portion of open water. Thus in The Tubantia," interlopers were restrained from committing acts of interference "at or near" a sunken wreck over which the plaintiffs were held to have established possession by incipient acts of salvage. I know of no reason why a quantity of sea-water confined in a receptacle, for purposes of scien- tific experiment, should not be a larcenable thing in law, unless it were held to have no value in the eye of the law. Fresh water, run- ning or standing, in its natural condition, is not a subject of prop-

42 [1904] A. C. 179, 193. 4 8 Bryant v. Lefever (1879) 4 C. P. D. 172. 44 Per Bramwell, L. J., ibid. at 176. 45 Aldin v. Latimer Clark, Muirhead & Co. [1894] 2 Ch. 437; Bass v. Gregory (1890) 25 Q.B.D. 481; Cable v. Bryant [1908] 1 Ch. 259. 46 Cable v. Bryant, supra note 45. 47There does not seem to be any direct decision, but see Young v. Hichens (1844) 6 Q. B. 606. 48 Supra note 28. 19401 THINGS

erty, though it is, of course, subject to numerous rules of law con- cerning use and enjoyment. There seems to be a certain reluctance in English law to regard water as a thing, for a right to take water from another man's land is, curiously enough, not a profit a prendre, but an easement.49 Nevertheless, water confined in a receptacle is certainly a thing in law;5° it is, indeed, the father of all "Rylands v. Fletcher objects." Is it a thing of sufficient value in law to be the subject of trespass or larceny? It can certainly be protected from pollution,"- and it is settled, though on the authority of one case only,52 that water supplied by a company to a consumer, and stand- ing in his pipes, may be the subject of larceny at common law. With regard to larceny of water which has been taken from a natural source and kept in a receptacle, our law is silent, though Stephen stateS53 tentatively that if "it is stored in pipes or reservoirs for the purpose of sale or use," it is "capable of being stolen." In a country like England, where water abounds-almost excessively, in the opin- ion of many of its inhabitants-it might be difficult to attach any monetary value to a quantity of ordinary water taken from natural sources; 54 but in certain countries, where water-supply is scanty and droughts prevail, water in tanks, dams, and similar receptacles may have a very definite value. If, in such circumstances, A steals a barrel- full of water from B's tank, presumably he has committed larceny. A more difficult situation might arise if A, having no spring on his own land, abstracted a barrel-full of water from a precious spring on B's land. The water in the barrel is now, it would seem, a larcenable thing, but it was not a larcenable thing while it was flowing from the spring. Can B prosecute A for larceny? English law, it would seem, has never had to deal with this question, but it may well have arisen in systems of law which are beyond the present writer's ken. There is one kind of water of which we hear very little in English law, and yet it is the commonest of all-rain-water. It is stated on high au- thority that a man has a natural right to the descent of rain-water upon his land,55 and any undue interference with that right may 49 Race v. Ward (1855) 4 E. & B. 702. 5 Embrey v. Owen (1851) 6 Ex. 353. 5 lHolker v. Porritt (1875) L. R. 10 Ex. 59. 52 Ferens v. O'Brien (1883) 11 Q.B.D. 21. 53A DIGEST oF ra= Ca nmnAL LAw (6th ed. 1904) art. 315. 64 In Ferens v. O'Brien, supra note 52, the value of one penny was attached to two buckets of stolen water; but presumably this could be calculated from the water rate paid by the owners. 55 Per Bramwell, L. J., in Bryant v. Lefever, supra note 43, at 176. CALIFORNIA LAW REVIEW [Vol. 28 amount to a nuisance (or possibly a trespass?); and the unjustifia- ble diversion of accumulated rain-water from one's own land to an- other's may be actionable.5 And there may be easements connected with rain-water. How many people realize, when they use the com- mon word "eavesdrop," that they are borrowing a metaphor from the easement of discharging water from one's-roof upon the land of another, a right which the Romans called stillicidium? But, like all other forms of natural water, rain, it would seem, cannot become a thing in law and a subject of property until it is confined in a re- ceptacle, when there seems to be no reason why it should not be lar- cenable, if it has any assessable value. By far the most difficult of the many terms applied to things-in- law is the distinction between corporeal and incorporeal things. It is said,5 7 1 believe rightly, that the legal term "thing" may be applied not only to material objects, but to "every subject-matter of a right, whether a material object or not." But the use of the term in this sense at once involves us in a confusing and logically unsatisfac- tory identification of a right with the object of a right. Let us con- sider a common Roman example of an incorporeal thing-a servitude. A. Agerius has a right of way over the land of his neighbour, N. Negi- dius. By its very name, this is a right-apower to do a thing which, without special privilege, would be a trespass. It is in conception to- tally different from a specific, material thing round which all the fortifications of possession and property may be erected. Assuredly it is incorporeal, because all rights are incorporeal, but in what sense is it a thing? It cannot be stolen; it cannot be converted to the use of another; it cannot be the subject of trespass corpore corpori. It exists entirely in the abstract; it has not and cannot have any bodily identity. What is true of a servitude we shall find is true of all so- called incorporeal things. Consequently, jurists are almost unanimous in the view that the distinction between corporeal and incorporeal things is, in strict logic, unsustainable. To Austin,5 it is merely "jargon"; incorporeal here- ditaments in English law, "That is to say, rights of a certain species, or rather of numerous and very different species, are absurdly op- posed to things (strictly so-called) which are the subjects or matter of rights of another species." Again: "The distinction is utterly use-

5 6Hurdman v. North Eastern Ry. (1878) 3 C.P.D. 168. 57See, e.g., SALMOND, JURISPRUDENCE (9th ed. 1937) 346. 58 1 Austin, op. cit. supra note 2, at 372. 194] THINGS less; inasmuch as rights, and duties, having names of their own,. need not be styled 'incorporeal things.' "" Holland, accepting Roman and German distinctions, does not deal with the logical objection. Salmond' ° says tersely that the distinction, if taken literally, is "il- logical and absurd." Markby 6' expresses uncompromisingly the con- fusion of terminology which Austin censures when he says flatly that "Rights are incorporeal things." This was the Roman view. Res in- corporales are simply things which cannot be touched; in iure con- sistunt, that is, they have only a notional legal existence. All rights fall within this class, and Gaius62 includes even obligationes quoquo modo contractae; Justinian, 63 in the corresponding passage of the Institutes, repeats this; and both go on to explain that an obligation is properly described as incorporeal, though the actual subject-mat- ter of the obligation may be corporeal. This hotchpot of conceptions so dissimilar as res, , and obligatio is to us bewildering, and the confusion is not diminished by further elaborate classifications of res incorporalesand iura in rem and iura in personam. Most remark- able of all is the fact that the right of greatest value and extent, own- ership, was not regarded either as pure ius, or even as res incorporalis, but actually as res corporalis.Here we see at its maximum the trans- ference of ideas by which the right was identified with the subject- matter; the widest power over a corporeal thing is so bound up with the "piece of matter" which it controls that it becomes itself a "piece of matter." It is to be remembered that these intricacies resulted from the Roman division of the law into that of persons and that of things. The law of persons was, in essence, the law of status; the vast law of things, comprising as it did the whole field of property and obliga- tions, was obviously concerned with something of very much wider acceptation than "thing" in the material sense. English terminology in this matter is much narrower than that of Roman law. No doubt in a purely metaphysical sense, a right or an obligation is a "thing"; but as a term of art, "incorporeal thing," or, more properly, incorporealhereditament, denotes a form of prop- erty of a very peculiar kind. Blackstone,6 with considerable ingenu-

59 2 Ausnm, op. cit. supra note 2, Lect. XLVI, p. 804. 60 Op. cit. supra note 57, at 347. 61 ELTEISNTS OF LAW (6th ed. 1905) 79. 62 G.2.14. 631.2.2. 64 2 BL. Comms. *20. CALIFORNIA LAW REVIEW [Vol. 28 ity of language, for it is not easily reduced to intelligible terms, thus describes it: "An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisible with- in, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely an idea and abstracted contemplation; though their ef- fects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profit produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incor- poreal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be com- pletely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense: that casual share of the annual in- crease is not, till severed, capable of being shown to the eye, nor of being delivered into bodily possession." All this, however, seems to be true of any right whatever; indeed, it is exactly what Gaius and Justinian say when classing obligations as res incorporales; namely, that while the thing obtained by the right may be corporeal, the obligation itself is incorporeal. Thus while Roman law included under the same description of incorporeality things of such different natures as rights, obligations, servitudes, inheritances, we limit it, technically, to the following kinds of property: reversions, remainders, executory interests and conditions affecting land; certain rights in land the common char- acteristic of which is that they are not accompanied by exclusive possession of the land-seignories, franchises, advowsons, rent- charges, rights of common and profits & prendre; and certain herit- able rights not necessarily connected with land, such as offices, and personal annuities which pass to the heir. The uncertainty of our terminology is best illustrated by the easement. We are not as clear as the Romans were that this is an incorporeal thing. We say that 19401 THINGS it differs from other incorporeal hereditaments in that it is subject to a certain local limitation-it exists only in relation to the enjoy- ment of the dominant tenement, not "in gross." And we think we escape the difficulty by saying that it is an "incorporeal right," though different in this respect from other incorporeal rights. Clearly the term "incorporeal right" can mean nothing more nor less than a right to an incorporeal thing, and, juristically considered, an ease- ment is just as much, and just as little, an incorporeal hereditament as any of the interests usually comprised within that class. The truth is that the incorporeal thing in law involves a notion quite distinct from that of the thing conceived as a locally limited part of matter. It stands for the interest embodied in the thing rather than the body of the thing itself. The Roman conception of the incor- poreal thing has thus been expressed by Professor Buckland: 65 "In the institutional scheme a res is an element in wealth, an asset, an economic conception, essentially different from the Austinian thing, a permanent external object of sensation, which is a physical con- ception." Now this economic principle really underlies--or rather, it lies just beyond-the whole English conception of a thing in law. It is very lucidly discussed by Sir Frederick Pollock.' He defines a thing as "some possible matter of rights and duties conceived as a whole and apart from all others, just as, in the world of common experience, whatever can be separately perceived is a thing." 7 Things are "ele- ments of wealth," 6 "all objects of exchange and commerce which are recognized by the usage of mankind," I "potentialities of rights." 70 A thing exists in law only "as an occasion of use or enjoyment to man, or as an instrument in human acts."'71 Pollock holds, therefore -and this view has already been suggested here-that the Roman res omnium communis, or indeed any part of physical nature which cannot be brought within the scope of legal relationships, has no real existence in contemplation of law, or, at all events, of English law. In other words, things, for purposes of law, are phenomena which

6 5 A TExT-Boox oF RomAx LAW (2d ed. 1932) 182. 66A FiRsT Boox oF JURiSPRUDENCE (4th ed. 1918) c. 6. 6 7 Ibid. at 130. 6 s Ibid. at 132. 69 Ibid. at 133. 70 Ibid. at 138. 71 Ibid. at 135. CALIFORNIA LAW REVIEW [Vol. 28 can be brought within the power of man, or, as Korkunov 72 expresses it, portions of matter which are "subject to human influence." They are such parts of the whole constitution of matter as man can dis- engage and"turn to his own advantage. Philology suggests the same view. I have already referred to the significant word "chattels." We speak also of innumerable things, from a man's whole estate to common objects of merchandise, as "goods"; and in French legal terminology the word "biens" covers almost the whole field which is represented by our term "things." Now, as the most authoritative commentators on the French Civil Code observe,73 the notion of a "good" is itself an abstraction: it denotes "the utility which a person may derive from objects over which he has rights, and consequently a simple quality of these objects, or, if you will, the result of the rights of which these objects are the subject-matter." This, I think, sums up the nature of an "incorporeal thing": it is a quantitative identification of the economic value of a specific right. The value of the right may be, in economic terms, small and even scarcely measurable; but a value of some kind, it is believed, must be attributable to it if it is to possess the character of a thing in law. Thus, it is still part of our law that an entirely valueless thing cannot be the object of theft. The conception of things as means for the realization of interests extends far beyond the range of purely corporeal things in Austin's sense. Hence arises a difficulty of terminology which it seems im- possible to escape. It is certainly inconvenient that by "things" we should mean at one time a merely physical object of perception and at another time the intangible subject-matter of a right. If we confine the term to material objects, as Austin would have us do, then there is no resisting his argument that the distinction between corporeal and incorporeal things is unreal and illogical. But if we use the word also in the second and wider sense which has been discussed-and it seems difficult to avoid this without summarily rejecting a great deal of the traditional terminology of law-then the distinction is not without meaning or value. By a corporeal thing we shall mean a right-object, or interest, which is apprehended in concrete substance by the senses. By an incorporeal thing we shall mean a right-object, an interest-not the same thing as the right itself-which does not

72 GENERAI THEORY OF LAW (1909) 221. 78 2 AuBRY and RAu, DROIT Civm FAhcAIs (1869) 3, n. 4, translated,. 19401 THINGS thus embody itself in physical substance, but has to be apprehended notionally. In short, that which we have in mind in the first case is a tangible, "locally limited" substance over which the right is exercised. That which we have in mind in the second case is an intangible subject- matter of interest, not sensibly embodied, which defines the scope and value of the right, but is not the same thing as the right itself. This, it must be remembered, is true of the distinction as it is drawn in general jurisprudence based on the Roman system. In English law, I do not think the word "thing" has ever had the general meaning simply of any object of a right. It is true that our incorporeal heredita- ments fall within the Roman conception of res incorporales,but the converse does not hold good; a great many Roman res incorporales would not be considered by our law as incorporeal hereditaments. It cannot be pretended that these widely different and in some respects arbitrary meanings of the word "thing" are free from em- barrassment, but the difficulty really arises from the inadequacy of language to define those metaphysical enigmas, the objects of con- ception and perception.