we readily understand that while some things are objects of the sense, and capable of being seen and touched, others have but a legal or ideal existence. Spain, Holland, Scotland, and certain other European countries whose jurisprudence is based upon the civil law, have recognized such an elementary division quite distinctly; and the same is true of Louisiana, and perhaps other American States. Lands and houses, under this system, are to be regarded as corporeal species of property, for they may be seen or touched; so are cattle, jewels, and household furniture. But a right of way in lands is incorporeal; so is the right to recover an unpaid debt. The civil law, in the time of Justinian, classified into immovables and movables, which together constituted corporeal property, and to these added incorporeal property or rights.2 The old common law applied no such system of classification, in so many words, to personal property; and yet the distinction of corporeal and incorporeal was employed with reference to things real from the earliest period. Thus, the elementary writers laid it down that commons, ways, and franchises all rights appertaining to real estate - were incorporeal hereditaments, because they were rights existing only in the mind, whatever might be said of their effects or profits; while, on the other hand, land and water were corporeal hereditaments, because they could be seen and handled by the body. More than this: the very word" hereditament," though practically restricted at the English law in its application, has a theoretical significance, ample enough, apparently, to justify its extension to our present subject; for, to use Coke's own language, it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. And Blackstone defines the incorporeal hereditament as "a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same;" and one of the examples given is that of an office relating to jewels. 1 See 2 Burge Col. and For. Laws, 3. 2 Colquhoun Rom. Civil Law, § 932; 1 Dom. Civil Law, § 130. 8 2 Bl. Com. 18-21; Co. Lit. 19, 20. This shows that the idea was entertained of incorporeal rights annexed to corporeal chattels, as well as of those rights which savored only of real estate.1 § 12 The Same Subject: Better Classification would be into Corporeal and Incorporeal Chattels. Whether the better plan is not to put corporeal immovables and movables by themselves, and then to add incorporeal rights as another and distinct class of property, following the Roman rule of the time of Justinian, we need not now discuss. Suffice it to say, that the apportionment of rights between the two great systems of property, real and personal, is a feature too deeply woven into the texture of our law to be separated without damaging the whole fabric. To take, then, the hint thrown out in the definitions of Coke and Blackstone, we might say, that rights issuing out of lands, such as a right of way, and privilege of fishing or pasture, should be referred to the topic of real property, while rights issuing out of or reducible to the personal corporeal thing we call money, such as debts, demands, and claims arising from contracts or a wrong, or issuing out of, or concerning, or annexed to any other personal corporeal thing, should be referred to the topic of personal property; or, to be more logical (since a house-rent might, perhaps, be referred to both topics on such a principle of classification), that under the latter head are to be included all such rights or incorporeal hereditaments as are not specially annexed to lands or immovable property, and do not issue out of or immediately concern the same. Then, whether the student were analyzing the law of real or of personal property, he would find this leading distinction before him, of things which can be seen or touched and things which are not the objects of the bodily senses. The one great property system would correspond with the other, and both would conform to universal law. He would see why we separate a debt from an animal in classification; why, too, a different principle applies to general balances due from our banker and to a sealed bag of money left in his custody on special deposit. Proceeding a step further, he would learn that bills and 1 See 2 Bl. Com. 20. notes, certificates of stock, registered securities, and the like species of personal property, so common in these days, are but the evidence of incorporeal rights, and not, in strictness, corporeal property, a truth not, perhaps, self-evident, yet capable of demonstration, and upon which are founded some of the most important general doctrines of the law touching things personal. A better style, therefore, than choses or things in action would be rights in action. If this plan of classification, into things corporeal and things incorporeal, be so desirable, some one may ask, why was it not originally applied, at the common law, as well to personal as to real property? We reply: because, in all probability, of the comparative unimportance of the topic of personal property in the days of Blackstone and his predecessors. It is not to be supposed that the early teachers of the common law, many of them wise and learned for their age, were without ideas on such subjects. Yet while they gradually worked out a real-estate system of jurisprudence, refining upon subtile refinements, they did not treat the subject of chattels as it deserved. In the first place, they took no pains to set off the two systems of property, real and personal, side by side, and to see how far their principles could be harmonized. In the second place, they had got hold of this distinction between choses in possession and choses in action, which answered their purpose sufficiently for the time being; although, while not seemingly aware of it, they meant about the same as to distinguish between corporeal things personal and incorporeal things personal. The choses in possession consisted of things which could be seen and touched, like animals, corn, and jewels. The choses in action were, as we understand it, mere rights; and as the enforcement of these rights is by suit or action, we may suppose that while simple debts or claims for damages constituted almost the only incorporeal personal rights in the community, the term chose in action fitted. Title. § 13. The Same Subject; Rights of Dominion affected by Upon the one or the other method of distinction rests much of the law of personal property in force at the present day in England and America, as we shall have occasion to notice in the course of this treatise. And the reader should always keep in mind that the ownership of property- that is, the exclusive right to possess, enjoy, and dispose of a certain thing—or its dominion, may be very greatly affected by its situation in the hands of parties, whatever may be its inherent qualities. One may be the buyer, another the seller, with reference to the same thing; one the assignor, another the assignee; one may bequeath, another may inherit; and so on. Such questions properly come up in considering the subject of title to property; and the rules of title will be found to differ according to the inherent attributes of the property; whether it be an immovable or a movable, whether it be a thing corporeal or a thing incorporeal. § 14. The Same Subject; How Things Incorporeal become Corporeal, etc. Another truth should be borne in mind by the reader, to come more closely to the subject we are now considering; namely, that the thing incorporeal, or the money right, or chose in action, may be converted into a thing corporeal, or a chose in possession, and thus become in fact the latter, or be extinguished altogether. Thus, a legacy, which is an incorporeal right, may be paid up; and in this case there is no longer the legacy, as such, but there is money or the other specific personal property in its place. And so with any kind of a debt. The reduction into possession, as it is called, of the wife's choses, is an important element for consideration at the common law, in determining the rights which the husband acquires by marriage in his wife's personal property. And yet, in order to change a thing incorporeal into a thing corporeal, an action may or may not be brought, according to circumstances. What we call the personal property of one may be what another owes. § 15. The Same Subject; General Conclusion as to Corporeal and Incorporeal Personal Property. With the growth of mod 1 See Schouler Dom. Rel. 3d ed. § 84. The writer is not to be understood as meaning to assert that the technical "reduction into possession" of the wife's choses in action is necessarily the same thing as the conversion or extinguishment above stated. ern stocks, bonds, and negotiable instruments, has come a disposition to find some broader basis to rest a system of property classification upon; and this we conceive can best be found in the simple, natural, and comprehensive divisions which the Roman law preserved: first of things immovable and movable, next of things corporeal and incorporeal. And towards these divisions there seems to be a decided tendency in our law at the present day. Burge, who, in his extensive work on Colonial and Foreign Laws, handles the civil and common law systems together, making one mode of classification serve for both, divides property into real and personal, or immovable and movable property, and treats first of real and personal corporeal property, next of real and personal incorporeal property.1 Our own great jurist, Kent, has avoided, in his Commentaries, the logical confusion manifested by Blackstone in respect of the meaning of the word “property." He considers the topic of absolute and qualified property (that is, ownership) by itself, and apart from that of things in possession and things in action. And upon the distinction of choses he does not strongly attempt to found a difference; on the contrary, one may see that, while he refrained from disputing the older authorities, there lurked in the author's mind the idea of a better classification into corporeal and incorporeal things. Moreover, he defines things in action as "personal rights not reduced to possession, but recoverable by suit at law."3 And he confidently asserts that the civil law was much more natural and much less complicated in the discrimination of things than the common law; dividing them, as it did, "into the obvious and universal distinction of things movable and immovable, or things tangible and intangible."4 And, finally, our latest writer, Mr. Williams, the only person of repute who has hitherto undertaken to prepare an elementary work on Personal Property, stumbles over this ancient classification of choses in posses 1 2 Burge Col. and For. Law, 6-46. 22 Kent Com. 340, 347, 351. Cf. 340, note, probably written by the Chancellor himself, to the effect that personal property may include not |