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BOOK I.-OF PERSONS.

PART I.-OF NATURAL AND ARTIFICIAL PERSONS.

136. Persons are divided into natural and artificial. These will be considered separately.

TITLE I.—OF NATURAL PERSONS.

CHAPTER I.-WHO IS A PERSON.

137. Men, women and children are called natural persons; but, in another sense, by person is meant the part which a man plays in society. In law, man and person are not exactly synonymous terms.(a) Any human being is a man,(b) whether he be a member of society or not, and whatever may be the rank he holds, whatever may be his age, his sex, etc. A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. (c) A slave, though a man, is in general con

(a) Toullier has given us the derivation of the word person, which will render sufficiently clear its true meaning. He says,

"The word person, in its primitive and natural sense, signifies the mask with which actors, who played dramatic pieces in Rome and Greece, covered their heads. These pieces were played in public places, and afterward in such vast amphitheatres, that it was impossible for a man to make himself heard by all the spectators. Recourse was had to art; the head of each actor was enveloped with a mask, the figure of which represented the part he was to play, and it was so contrived that the opening for the emission of his voice, made the sounds clearer, and more resounding, vox personabat: whence the name persona was given to the instrument or mask which facilitated the resounding of his voice. The name persona was afterward applied to the part itself, which the actor had undertaken to play, because the face of the mask was adapted to the age, and to the character of him who was considered as speaking, and sometimes it was his own portrait. It is in this last sense of personage, or of the part which an individual plays, that the word persona is employed in jurisprudence, in opposition to the word man, homo. When we speak of a person, we only consider the state of the man, the part he plays in society, abstractedly, without considering the individual."-Toull. Dr. Civ. Français, liv. 1, n. 168.

(b) Bouv. L. D. Man.

(c) Toull. Dr. Civ. Fr. liv. 1, n. 168.

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sidered not as a person, but a thing. For some purposes he is considered a person. (a)

CHAPTER II.-OF THE STATE OR CONDITION OF A PERSON.

138. The word state or condition of persons, has various acceptations. When we speak of a person, we consider only the part a man plays in society, without taking into view the individual. State and person are then correlative terms.

If we inquire into its origin, the word state will be found to come from the Latin status, which is derived from the verb stare, sto, whence has been made statio, which signifies the place where a person is located, stat, to fulfil the obligations which are imposed upon him.(b)

State, then, is that quality which belongs to a person in society, and which secures to, and imposes upon him, different rights and duties, in consequenc of the differences of that quality.

139. Although all men come from the hands of nature upon an equality, yet there are among them marked natural differences. The distinctions of sex, parentage, age, youth, etc., all come from nature.

To these natural qualities, the civil or municipal laws have added distinctions which are purely civil and arbitrary, founded on the manners of the people, or the will of the legislature. Such are the differences which these laws have established between citizens and aliens, between magistrates and private

(a) State v. Thackam, 1 Bay, R. 358. In the fourth article of the constitution of the United States, the word person is used in the sense of man; "no person held to labor," evidently refers to slaves.

(b) At Rome, by state was understood the inscription of the name of an individual on the registers, or census. The state was the same as caput, head; by capite censi was meant those who had declared to the censors that they had nothing of their own, neither property nor posterity. They could then be numbered only by their heads. None were inscribed on the list or census except freemen, citizens, and heads of families. And thus the word head, caput, signified simply a state of liberty, of citizenship, and of family. The slave, who was deprived of all state, was said to have no head: caput non habere.

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citizens or subjects; and between freemen and

slaves.

140. Although these latter distinctions are more particularly subject to the civil and municipal law, because to it they owe their origin, it nevertheless extends its authority over the natural qualities, not to destroy or weaken them, but to confirm them, and to render them more inviolable by positive rules and by

certain maxims.

141. This union of the civil or municipal law with the law of nature, form among men a third species of differences which may be called mixed, because they participate of both, and derive their principle from nature and the perfection of the law; for example, infancy, or the privileges which belong to it, have their foundation in the law of nature; but the age, and the term of these prerogatives, are determined by the civil or municipal law.

142. From these premises, it is easy to perceive that three sorts of different qualities, which form the state or condition of men, may be distinguished: those which are purely natural, those which are purely civil, and those which are composed of natural and civil or municipal law.

143. If we analyze what are the qualities which compose the state of a person, we will find they have a necessary or essential connection with public or political, or private right, and that they are either qualities of state or distinctions of state, because they render the party either able or unable to participate in the public state or the private state.

144.-1. Let us commence, for example, with public or political right. It is a question as to his state, which settles whether a man is a freeman or a slave, a citizen or an alien; because if he is free and a citizen, he is qualified to render service to his country in all public stations or offices; if, on the contrary, he is a slave or an alien, he is excluded by both of these

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qualities from filling any functions which are connected with public or political right, and from all advantages which the law grants only to those who are entitled to participate in them.

145.-2. The rule is the same with regard to private rights. The state of a person is confined to the regulation of contracts or engagements and descents. It is used to determine what connections the private state of an individual, and his contracts or engagements, or his rights to inherit by descent, have with each other, and what renders men capable or incapable of making contracts or taking by descent.

Thus, the state of majority renders a man capable of entering into all sorts of obligations; that of infancy prevents him from forming many: these qualities must be classed among those which determine the state of a person.

The quality of a legitimate or an illegitimate child, renders him capable or incapable of taking by descent; it is, therefore, the quality of the person, in this case, which constitutes his state.

146. The public state consists in a capacity founded in nature, or the law, or arising from both, to participate in all offices, honors, and all other prerogatives, which are the right of those who are considered members of the nation.

147. The private state is a quality, which no agreement can alone establish, but which is the effect of natural or civil law, or of both of them, and which renders those who possess it capable or incapable of certain kinds of conventions or agreements; or even of all agreements, and by which they are capable or incapable of taking by descent.

CHAPTER III.-OF THE LOSS OF ONE'S STATE OR CONDITION.

148. Many changes take place in the state of a person; the principal of which are the following:

1. Civil death. By which a man loses his political and civil rights.

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Book 1, part 1, tit. 1, chap. 4, sec. 1, 2, § 1.

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2. Interdiction. By this is meant a legal restraint, by the sentence of a competent tribunal, upon a person incapable of managing his estate, because of mental incapacity.

3. When a single woman marries she experiences a change in her state; she falls into the power of another, and becomes incapable of making a contract without the consent of her husband; but when the marriage is dissolved there is another change, by which she is freed from the marital restraint.

CHAPTER IV.-OF THE CLASSIFICATON OF PERSONS.

SECTION 1.-OF PUBLIC PERSONS.

149. In the United States public persons have but few privileges more than private citizens; these are granted to them, not for their own advantage, but for the public good: as for example, a congressman cannot be arrested nor sued, in a civil case, while attending to his duty in congress, because the public interest requires his undivided attention there. Public persons are magistrates of various grades, from the President of the United States down to the constable.

SECTION 2.-OF PRIVATE PERSONS.

150. All persons who do not fill official stations are private persons. These will be considered in separate classes.

§ 1. With regard to the sexes.

The

151. The physical difference between male and female animals is called sex. In the human species the male is called man, and the female woman. first difference which nature has established among persons is that of the sexes: inter masculos et feminas.

Some human beings, whose sexual organs are somewhat imperfect, have acquired the name of hermaphrodites. They are adjudged to belong to that sex which prevails.(a)

(a) Co. Litt. 2, 7; Domat., Lois Civ. liv. 1. t. 2, s. 1, n. 9; Dig. 1, 5, 10.