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Hohfeld, Wesley Newcomb 

Fundamental legal 
conceptions 







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FUNDAMENTAL 
LEGAL CONCEPTIONS 

AS APPLIED IX .JTDIC L\L REASONING. 

AND OTHER LEGAL ESSAYS 

BY 

WESLEY NEWCOMIJ llOHEELD 

LATE SOUTHMAYD PROFESSOR OF LAW IN 
YALE UNIVERSITY 

EDITED BY 
WALTER WHEELER COOK 

FORMERLY PROFESSOR OF LAW IN YALE UNIVERSITY 
PROFESSOR OF LAW IN COLUMBIA UNIVERSITY 





NEW HAVEN 
YALE UNIVERSITY PRESS 

LONDON • HLMPHREY MILFORD • OXFORD UNIVFRSFrV PRESS 

MDCCCCXX * 



COPYRIGHT, 1919, BY 
YALE UNIVERSITY PRESS 



FIRST PDBLISHED, 1919 
SECOND PRINTING, 1920 



IXTKODLCTIOX 

HOHFELD'S COXTKIBUTIOXS TO THE 
SCIEXCK OF LAW 

It is a commonplace that the vast majority of the members of the 
legal profession in English-speaking countries still regard "juris- 
prudence" in all its manifestations, and especially that branch of it 
commonly knoA\Ti as "analytical jurisprudence," as something aca- 
demic and without practical value. It is believed that the chief reason, 
or at least one of the reasons, for this view is not hard to discover. 
Almost Avithout exception the writers who have dealt with the subject 
seem to have proceeded upon the theory that their task was finished 
when they had set forth in ortlerly and logical array their own analysis 
of the nature of law, of legal rights and duties, and similar things. 
That the making of this analysis — aside from the mere intellectual 
joy of it — is not an end in itself l)ut merely a means to an end, these 
writers perceive only dimly or not at all; that the analysis presented 
has any utility for the lawyer and the judge in solving the problems 
which confront them, they do not as a rule attempt to demonstrate; 
much less do they show that utility by practical application of the 
analysis to the solution of concrete legal problems. 

In the opinion of the present writer one of the greatest messages 
which the late Wesley Newcomb Ilohfeld during his all too short life 
gave to the legal profession was this, that an adetjuate analytical 
jurisprudence is an absolutely indispensa])le tool in the etiuipment of 
the properly trained lawyer or judge — indispensable, that is. for the 
highest efficiency in the discharge of the daily duties of his profes- 
sion. It was Hohfeld's great merit that he saw that, interesting as 
analytical jurisprudence is when pursued for its own sakf. its chief 
value lies in the fact that by its aid the correct solution of legal 
problems becomes not only easier but more certain. In this respect 
it does not differ from any other l)ranch of ]nire science. "We must 
hasten to add. lest we do an injustice to Hohfeld's memory by thus 
emphasizing his work along the line of analytical jurisprudence, that 
no one saw more clearlv than he that while the analvtical matter 



1 Eeprinted, by permission, from (1919) 28 Yale Law Journal, 721. 



4 FUNDAMENTAL LEGAL CONCEPTIONS 

is au indispensable tool, it is not an all-sufficient one for the lawyer. 
On the contrary, he emphasized over and over again — especially in 
his notable address before the Association of American Law Schools 
npon A Vital School of Jurisprudence — that analytical work merely 
paves the way for other branches of jurisprudence, and that without 
the aid of the latter satisfactory solutions of legal problems cannot 
be reached. Thus legal analysis to him was primarily a means to an 
end, a necessary aid both in discovering just what the problems are 
which confront courts and lawyers and in finding helpful analogies 
which might otherwise be hidden. If attention is here directed chiefly 
to Hohf eld's work in the analytical field, it is by reason of the fact 
that the larger portion of his published writings is devoted to that 
subject, in which he excelled because of his great analytical powers 
and severely logical mind. 

Hohf eld's writings consist entirely of articles in legal periodicals 
and are scattered through the pages of several of these, as the following 
list will show : 

The Nature of Stockholders' Individual Liability for Corporation 

Debts (1909) 9 Columbia Law Review, 285. 
The Individual Liability of Stockholders and the Conflict of Laws 

(1909) 9 Columbia Law Review, 492; (1910) 10 ibid., 283; 10 

ibid., 520. 
The Relations Between Equity and Law (1913) 11 Michigan Law 

Review, 537. 
Some Fundamental Legal Conceptions as Applied in Judicial Reason- 
ing (1913) 23 Yale Law Journal, 16; (1917) 26 ibid., 710. 
The Need of Remedial Legislation in the California Law of Trusts and 

Perpetuities (1913) 1 California Law Review, 305. 
A Vital School of Jurisprudence and Law (1914) Proceedings of 

Association of American Law Schools. 
The Conflict of Equity and Law (1917) 26 Yale Law Journal, 767. 
Faulty Analysis in Easement and License Cases (1917) 27 Yale Law 

Journal, 66. 

At the time of his illness and death Hohfeld was planning the comple- 
tion and publication in the immediate future of the analytical work 
so well begun in the three articles which must be regarded as the most 
important contributions which he made to the fundamentals of legal 
theory, viz., the two upon Fundamental Legal Conceptions as Applied 
in Judicial Reasoning, and the one upon The Relations Between Equity 
and Law. These three essays contain in broad outline what are 
perhaps the most important portions of the contemplated treatise. 



IXTRODUCTIOX 5 

Buried away in tht* pages of the magazines in which they were pub- 
lished they are, like so many oilier important discussions in the legal 
periodicals, ])ut little known evt'n to the more intelligent and better 
educated of the practicing lawyers and judges, or indeed of the law 
teachers of the country. If the present number of the Journal suc- 
ceeds in bringing these discussions to thf attention of a larger number 
of the legal i)rofession it will have accomplished its purpose. 

"' Finulanu ntal Lcfjal Conceptions as Applied in Judiiinl Beacon- 
ing" — the very title reveals the true character of Iloliffld's interest 
in the analytical field. ''As applied in judicial reasoning" — that is 
the important thing; fundamental legal conceptions not in the 
abstract, but used concretely in the solving of the practical problems 
which arise in the everyday work of lawyer and judge. 

Before we examine the main outlines of the structure which 
Hohfeld had planned and started to build, let one thing be clearly 
said. Xo one realized more clearly than did he that none of us can 
claim to have been the originator of any very large portion of any 
science, be it legal or physical. It is all that can be expected if each 
one of us succeeds in adding a few stones, or even one, to the ever- 
growing edifice which science is rearing. It follows that anything 
which one writes must largely be made up of a restatement of what 
has already been said by othei*s in another form. Each one of us 
may congratulate himself if he has added something of value, even 
if that consists only in so rearranging the data which others have 
accumulated as to throw new light upon the subject — a light which 
will serve to illuminate the pathway of those who come after us and 
so enable them to make still further progress. 

In the first of the two essays upon Fundamental Legal Concep- 
tions Hohfeld sets forth the eight fundamental conceptions in terms 
of which he believed all legal problems could be stated. He arranges 
them in the following scheme : 

Jural Opposites 

Jural Correlatives 

One thing which at once impresses itself upon one who is familiar 
with law, and especially with the work of writers uj)on jurisjunnlence 
who preceded Hohfeld. is that the terms found in this scheme are with 
one exception not new. l)Ut have always been more or less frei|uently 
used. To be sure, they have not ordinarily l)een used with precision 
of meaning as in the taltle we are considering; on the contrary, they 



fright 


privilege 


power 


immunity 


) no-right 


duty 


disability 


liability 


(right 


privilege 


power 


immunity 


jduty 


no-right 


liability 


disability 



6 FUNDAMENTAL LEGAL CONCEPTIONS 

have been given one meaning by one person, another by another, or 
indeed, different meanings by the same person upon different occa- 
sions. It is also true that nearly all the concepts which these terms 
represent in Hohf eld's system have been recognized and discussed by 
more than one writer upon jurisprudence.^'' A brief consideration 
serves to show, however, that the concepts and terras which are new 
are needed to logically complete the scheme and make of it a useful 
tool in the analysis of problems. "When so completed, these legal 
concepts become the "lowest common denominators" in terms of 
which all legal problems can be stated, and stated so as to bring out 
with greater distinctness than would otherwise be possible the real 
questions involved. Moreover, as previously suggested, the writers 
who did recognize many of these concepts failed to make any real 
use of them in other portions of their work.' 

That the word right is often used broadly to cover legal relations 
in general has probably been at least vaguely realized by all thought- 
ful students of law. Thus, to take a concrete example, nearly all of us 
have probably noted at some time or other that the "right" (privilege) 
of self-defense is a different kind of "right" from the "right" not 
to be assaulted by another ; but that legal thinking can never be truly 
accurate unless we constantly discriminate carefully between these 
different kinds of rights, few of us have sufficiently realized. We 
constantly speak of the right to make a will; the right of a legis- 
lative body to enact a given statute; of the right not to have one's 
property taken without due process of law, etc. In these and innumer- 
able other instances it turns out upon examination that the one word 
"right" is being used to denote first one concept and then another, 
often with resulting confusion of thought. 

With the clear recognition of the fact that the same term is being 
used to represent four distinct legal conceptions comes the conviction 
that if we are to be sure of our logic we must adopt and consistently 
use a terminology adequate to express the distinctions involved. The 
great merit of the four terms selected by Hohfeld for this purpose — 
right, privilege, power and immunity — is that they are already 
familiar to lawyers and judges and are indeed at times used with 
accuracy to express precisely the concepts for which he wished always 
to use them. 

Right in the narrow sense — as the correlative of duty — is too well 

la Terry, Leading Principles of Anglo-American Law, eh. YI, 84-138; Salmond, 
Jurisprudence (4th ed.), ch. X, 179-196. 

2 Terry seems to the present writer the only one who even glimpsed the impor- 
tance of these concepts in the actual analysis and settlement of legal problems. 



INTRODUCTION 7 

known to require extended discussion at this point. It signifies one's 
aftirniative claim against another, as distinguished from "privilege," 
one 's freedom from the right or claim of another. Privilege is a terra 
of good repute in the law of defamation and in that relating to the 
duty of witnesses to testify. In defamation we say that under certain 
circumstances defamatory matter is "privileged," that is, that the 
person publishing the same has a privilege to do so. By this state- 
ment we are not asserting that the person having the privilege has 
an affirmative claim against another, i.e., that that other is under a 
duty to refrain from publishing the defamatory matter, as we are 
when we use ''right" in the strict sense, but just the opposite. The 
assertion is merely that under the circumstances there is an absence 
of duty on the part of the one pu])lishing the defamatory matter to 
refrain from doing so under the circumstances. So in reference to 
the duty of a witness to testify : upon some occasions we say the 
witness is privileged, i.e., that under the circumstances there is an 
absence of duty to testify, as in the case of the privilege against self- 
incrimination.^ "Privilege" therefore denotes absence of duty, and 
its correlative must denote absence of right. Unfortunately there is 
no term in general use which can be used to express this correlative 
of privilege, and the coining of a new term was necessary. The terra 
devised by Hohfeld was "no-right," obviously fashioned upon an 
analogy to our common words nobody and nothing. The exact term 
to be used is, of course, of far less importance than the recognition 
of the concept for which a name is sought. The terms "privilege" 
and "no-right," therefore, denote respectively absence of duty on 
the part of the one having the privilege and absence of right on the 
part of the one having the "no-right."* 

All lawyers are familiar with the word "power" as used in refer- 
ence to "powers of appointment." A person holding such a "power" 
has the legal ability by doing certain acts to alter legal relations, viz., 
to transfer the ownership of property from one person to another. 
Now the lawyer's woi-ld is full of such legal "powers," and in Tloh- 
f eld's terminology any human being who can by his acts produce 
changes in legal relations has a legal power or powers. Whenever a 



3 Here the statement that tlnic :^ a "right" agajnst self-crimination does 
indeed carry, in addition to the idea of privilege, that of a right stricto smsu, and 
also, when the general ''right" in question is given by the constitution, of legal 
immunity, with correlative lack of constitutional power, i.e., disability, on the part 
of the legislative body to abolish the privilege and the right. 

* Doubtless some will deny that these conceptions — privilege and no-right — are 
significant as representing legal relations. See the brief discussion of this point 
by the present writer in (1918) 28 Yale Law Journal, 391. 



8 FUNDAMENTAL LEGAL CONCEPTIONS 

» 

power exists, there is at least one other human being whose legal 
relations will be altered if the power is exercised. This situation 
Hohfeld described by saying that the one whose legal relations will 
be altered if the power is exercised is under a "liability." Care 
must be taken to guard against misapprehension. "Liability" as 
commonly used is a vague term and usually suggests something dis- 
advantageous or burdensome. Not so in Hohfeld 's system, for a 
"liability" may be a desirable thing. For example, one who owns a 
chattel may "abandon" it. By doing so he confers upon each person 
in the community a legal power to acquire ownership of the chattel by 
taking possession of it with the requisite state of mind.^ Before the 
chattel is abandoned, therefore, every person other than the owner is 
under a legal "liability" to have suddenly conferred upon him a new 
legal power which previously he did not have. So also any person can 
by offering to enter into a contract with another person confer upon 
the latter — without his consent, be it noted — a power by ' ' accepting ' ' 
the offer to bring into existence new legal relations.® It follows that 
every person in the community who is legally capable of contracting 
is under a liability to have such a power conferred upon him at any 
moment. 

Another use of the term "right," possibly less usual but by no 
means unknown, is to denote that one person is not subject to the 
power of another person to alter the legal relations of the person 
said to have the ' ' right. ' ' For example, often when we speak of the 
"right" of a person not to be deprived of his liberty or property 
without due process of law, the idea sought to be conveyed is of the 
exemption of the person concerned from a legal power on the part of 
the persons composing the government to alter his legal relations 
in a certain Avay. In such cases the real concept is one of exemption 
from legal power, i.e., "immunity." At times, indeed, the word 
"immunity" is used in exactly this sense in constitutional law.*^'' In 

5 That is, Tvith the intention of appropriating it. If the possession were taken 
merely vrith the intention of keeping it for its owner, the interest acquired would 
be merely that of any other person lawfully in possession, with an added power 
to acquire ownership by the formation of an intention to appropriate the article 
in question. In either case the other members of the community would simul- 
taneously with the assumption of possession by the finder, lose their powers to 
acquire ownership of the article. 

6 For an application of the above analysis to the formation of contracts, see 
Corbin, Offer and Acceptance, and Some of the EesuUing Legal Relations, (1917) 
26 Yale Law Journal, 169. 

6a One has, to be sure, a right (in the strict sense) not to be deprived of his 
physical liberty or tangible ' ' property ' ' except by due process of law, and doubt- 



INTRODUCTION 9 

Holifeld's system it is the generic term to (k'seribe any legal situa- 
tion in Avhieh a given legal relation vested in one person can not be 
changed by the acts of another person." Correlatively, the one who 
lacks the power to alter the first pei-son's legal relations is said to be 
under a ^'disability," that is, he lacks the legal power to accomplish 
the change in (juestion. This concept of legal "immunity" is not 
unimportant, as Salmond in his Jurisprudence seems to indicate 
by placing it in a l)rief footnote. For example, the thing which dis- 
tinguishes a "spendthrift trust" from ordinary trusts is not merely 
the lack of power on the part of the cestui cjue trust to make a con- 
veyance of his interest, but also the immunities of the cestui from 
having his equitable interest divested without his consent in order to 
satisfy the claims of creditors.^ Ordinary exemption laws, homestead 
laws, etc., also furnish striking illustrations of immunities." 

A power, therefore, "bears the same general contrast to an im- 
munity that a right does to a privilege. A right is one's affirmative 
claim against another, and a privilege is one 's freedom from the right 
or claim of another. Similarly, a power is one's affirmative 'control' 
over a given legal relation a.s against another; whereas an immunity 
is one's freedom fi-om the legal power or 'control' of anotlier as 
regards some legal relation. "^*^ 

The conceptions for which the terms "liability" and "disability" 
stand have been criticized by Dean Pound of the Harvard Law School 
as being "quite without independent jural significance.'"^ He also 
regards the terms themselves as open to objection on the ground that 

less this is what is frequently meant when it is said that one has the "right'' in 
question. At other times, however, the idea meant to be conveyed is not this, 
but rather, as stated in the text, legal exemption from power on the part of 
the legislature of the state to alter one's legjxl relations in a <>ertain way. In 
such cases the word "right" really stands for iminunitii. 

T One may, of course, with reference t<i any given legal relation or set of rela- 
tions, have an immunity against one person and not against another, against 
people generally and not against "everybody." 

8 C/. the situation under the federal TTomestcad Exemption Law. discussed in 
(1919) 28 Yale Law Journal, 2S3. 

9 Usually a person having an immunity is also vested with other legal relations 
which accompany it, but this is true of legal relations generally; nearly every 
situation upon analysis turns out to involve a more or less conijdex aggregate of 
all the different kinds of legal relations. The vital point in many cases, however, 
involves primarily the presence or absence of an immunity rather than some other 
legal relation. 

10 Hohfeld, in the article in 23 Yale Law Journal; see p. 60. infra. 

11 In his discussion of Legal Eights in (1916) 26 International Journal of Ethics, 
92, 97. 



10 FUNDAMENTAL LEGAL CONCEPTIONS 

''each name is available and in use for other and important legal 
conceptions." The latter point while important is after all a ques- 
tion of phraseology. Upon the first point, it is difficult to follow 
Dean Pound's argument. The eight concepts of Hohf eld's classifi- 
cation are the means by which we describe generically the legal 
relations of persons. Any given single relation necessarily involves 
two persons. Correlatives in Hohf eld's scheme merely describe the 
situation viewed first from the point of view of one person and then 
from that of the other. Each concept nnist therefore, as a matter of 
logic, have a correlative. If A has a legal ' ' power, ' ' he must by defini- 
tion have the legal ability by his acts to alter some other person 's legal 
relations.^' If so, then — as Dean Pound himself recognizes later on 
in the same discussion — that other person "is subject to have" his 
legal relations "controlled (altered) by another." Certainly, call it 
what you will, we have here a perfectly definite legal concept, the 
correlative of "power." So of "disability": If A is legally exempt 
from having one or more of his legal relations changed by B's acts, 
the situation as seen from B 's point of view is that B can not so alter 
A's relation, i.e., B is under a legal "disability." Again the par- 
ticular term may be open to criticism; the conception involved is as 
clearly the correlative of ' ' immunity " as " no-right ' ' is the correlative 
of "privilege"; nevertheless. Dean Pound seems to recognize the 
"independent jural significance" of the latter^^ while denying that of 
the former. 

Rights, privileges, powers, immunities — these four seem fairly to 
constitute a comprehensive general classification of legal "rights" in 
the generic sense. The four correlative terms — duty, no-right, lia- 
bility and disability — likewise sufficiently classify the legal burdens 
which correspond to the legal benefits.^"'^ It is interesting in passing 
to note that of the two writers who preceded Hohfeld, neither Terry 

12 His own also, or those of still another person, as where an agent makes a 
contract for a principal; but in each case he can not act so as to alter his own 
or this other person's legal relations without altering at the same time the first 
person's relations, since the concept involved is of the legal relation of one person 
to another person. A lead pencil must have two ends; so must a legal relation. 

13 Dean Pound does not even mention immunity, but that of course disappears 
as a fundamental legal conception if we deny the jural significance of its cor- 
relative, disability. Note that in dealing with the correlatives, we are looking 
at the same situation from the point of view of first one and then the other of 
the two persons involved, but that when dealing with the jural opposites we are 
looking at two different situations from the point of view of the same person, i.e. 
in one situation he has, for example, a right, in the other, ' ' no-right. ' ' 

13a ' ' Burden ' ' is here used loosely. A liability, as previously pointed out, may 
be a beneficial thing. 



iNTi^onrcTiox 11 

nor Salniond had cotnplet od llic scIumir". In Tt-rrys Principles of 
Anglo-American Law, rights slricto scnsu appear as "correspondent 
rights/' privileges as "permissive rights," powers as "faculative 
rights"; but immunities not at all. Moreover the correlatives are 
not worked out. In Salmond's Jurisprudence privileges are called 
*' liberties" — mere question of phraseology, — innnunities are treated 
as relatively unimportant, and liability is treated as the correlative of 
both liberty (privilege) and power. This assignment of a single 
correlative for two independent conceptions must result sooner or 
later in confusion of thought, for if the distinction between privilege 
and power be valid — as it clearly is — then the distinction between the 
correlatives, no-right and lialiility. must be e(jually valid. 

The credit for the logical completion of the scheme of classifica- 
tion and the recognition of the importance of each element in it may 
thus fairly be given to Hohfeld. It is believed also that his i)r('senta- 
tion of it in the form of a table of "jural correlativt^s" and "jural 
opposites" has done much to clarify and explain it. A still more 
important thing, as has been suggested above, is that he demonstrated 
how these fundamental legal concepts were of the utmost utility and 
importance in bringing about a correct solution of concrete legal 
problems. Here also credit to some extent nnist in all fairness be 
given to Terry, as above indicated, but Ilohfeld seems to the present 
writer to be the first one who appreciated to the full the real sig- 
nificance of the analysis. In the first of the articles upon F'undanu ntal 
Legal Conceptions he demonstrated its utility by many examples 
from the law of contracts, torts, agency, property, etc.. showing how 
the courts are constantly contVonted by the necessity of distinguish- 
ing between the eight concepts and are all too often confused by the 
lack of clear concepts and precise terminology. On the other hand, 
so clear a thinker as Salmond has shown himself to be in his Juris- 
prudence fails to make any substantial use of the analysis in his book 
on Torts. Indeed, so far as the present writer has been able to dis- 
cover, one might read his Torts through and never realize that any 
such analysis as that found in the Jurisprud< ncc had ever been made. 
Yet the problems involved in such subjects as easements, privilege 
in defamation, and other portions of the law of torts too numerous to 
mention, re(iuire for their accurate solution careful discrimination 
between these diflPerent concepts. 

Even in the work on Jurisprudcncr itself Salmond completely fails 
in certain chapters to show an appreciation of the meaning of these 
fundamental conceptions. Consider, for example, the following pas- 
sage from the chapter on ' ' Ownership ' ' : 



12 FUNDAMENTAL LEGAL CONCEPTIONS 

** Ownership, in its most comprehensive signification, denotes the 
relation between a person and any right that is vested in him. That 
which a man oivns is in all cases a right. When, as is often the case, 
we speak of the o\\Tiership of a material object, this is merely a con- 
venient figure of speech. To own a piece of land means in truth to 
oivn a particular kind of right in the land, namely the fee simple 
ofit."^* 

From the point of view of one who understands the meaning of the 
eight fundamental legal concepts, it would be difficult to pen a more 
erroneous passage. To say that A owns a piece of land is really 
to assert that he is vested by the law with a complex — exceedingly 
complex, be it noted — aggregate of legal rights, privileges, powers 
and immunities — all relating of course to the land in question. He 
does not own the rights, etc., he has them;^*^ because he has them, 
he "owns" in very truth the material object concerned; there is no 
"convenient figure of speech" about it. To say that A has the "fee 
simple" of a piece of land is, therefore, to say not that he "owns a 
particular kind of right in the land" but simply that he has a very 
complex aggregate of rights, privileges, powers and immunities, avail- 
ing against a large and indefinite number of people, all of which 
rights, etc., naturally have to do with the land in question. 

The full significance and great practical utility of this conception 
of ' ' ownership ' ' would require a volume for its demonstration. When 
one has fully grasped it he begins to realize how superficial has been 
the conventional treatment of many legal problems and to see how 
little many commonly accepted arguments prove. He discovers, for 
example, that ^'a right of way" is a complex aggregate of rights, 
privileges, powers and immunities ; is able to point out precisely which 
one of these is involved in the case before him, and so to demonstrate 
that decisions supposed to be in point really dealt with one of the 
other kinds of "rights" (in the generic sense) and so are not appli- 
cable to the case under discussion. He soon comes to look upon this 
newer analysis as an extraordinary aid to clearness of thought, as a 
tool as valuable to a lawyer as up-to-date instruments are to a surgeon. 

In the second of the articles ui)on Fundamental Legal Conceptions 

11 Salmond, Jurisprudence, 220. 

14a When used with discrimination, the word own seems best used to denote the 
legal consequences attached by law to certain operative facts. So used, it of 
course connotes that these facts are true of the one said to own the article in 
question. If we confine ow?) to this meaning, obviously we can not say that one 
owns a right or other legal relation, for the latter is itself one of the legal 
consequences denoted by the word oivn. On the other hand, we commonly do say 
that one has a right, a power, etc., and this usage does not seem undesirable or 
likely to lead to any confusion, even though we also say one has a physical object. 



INTRODUCTION 13 

Hohfeld outlined in l)rief the remainder of the work as lie planned it, 
as follows: 

"In the following pages it irs proposed to begin thf discussion of 
certain iinj)ortant classifications which are applicable to each of the 
eight individual jural conceptions repn-sented in the above scheme. 
Some of such overspreading classitications consist of the following: 
relations in pirson(n)i ('paucital' relations), and relations in rim 
('multital' relations) ; common (or general) relations and special (or 
particular) relations; consensual relations and constructive relations; 
primary relations and secondary relations; substantive relations and 
adjective relations; perfect relations and imperfect relations; con- 
current relations (i.e., relations concurrently legal and efiuitable) and 
exclusive relations (i.e., relations exclusively efpiitable). As the bulk 
of our statute and case law becomes greater and greater, these cla.ssi- 
fications are constantly increasing in their practical^ importance : not 
only because of their intrinsic value as mental tools for the compre- 
hending and systematizing of our complex legal materials, but also 
because of the fact that the opposing ideas and terms involved are 
at the present time, more than ever before, constituting part of the 
normal foundation of judicial reasoning and decision."*"' 

Of this comprehensive programme, only two parts were even par- 
tially finished at the time of Hohfeld 's untimely death, viz., that 
devoted to a discussion of the classification of legal relations as in 
rem (''multitar") and in personam ("paucital") and that dealing 
with the division of legal relations into those which are "concurrent" 
and those which are "exclusive." 

The division of "rights" into rights in rem and rights in personam 
is a common one and is frequently thought to be of great importance. 
It is. however, a matter upon which there is still much confusion even 
on the part of those who are as a rule somewhat careful in their 
choice of terms. As the present writer has elsewhere pointed out, 
as able a thinker as the late Dean Ames at times used the phrase 
"right in rem" in a sense different from that given to it in the usual 
definitions, apparently without being conscious of the fact that he 
was doing so.**' In the second of the articles upon Funelamental 
Legal Conceptions, Hohfeld sought by careful discussion and analysis 
to dispel the existing confusion. In doing so he necessarily went over 
much ground that is not new. The greatest merit of his discussion 
seems to the present writer to consist in bringing out clearly the fact 
that legal relations in rem ("multital" legal relations) differ from 
those in personam ("paucital") merely in the fact that in the case 
of the former there exists an indefinite number of legal relations, all 

15 (1917) 2fi Yale Law .Journal. 712; p. 67, infra. 
i« (1915) 15 Columbia Law Review, 43. 



34 FUNDAMENTAL LEGAL CONCEPTIONS 

similar, whereas in the case of the latter the number of similar rela- 
tions is always definitely limited. For this reason he suggested the 
name "multital" for those which are in rem and "paucital" for those 
in personam. These new terms have, to be sure, other things to 
commend them: (1) they are free from all suggestion that legal 
relations in rem relate necessarily to a physical res or thing or are 
"rights against a thing" ;^' (2) they do not lead to the usual confusion 
with reference to the relation of rights in rem and in personam, to 
actions and procedure in rem and in personam}^ 

Even a slight consideration of the application of this portion of 
Holif eld's analysis to "ownership" of property will show the extent 
of his contribution at this point. It is frequently said that an owner 
of property has "a right in rem" as distinguished from "a mere right 
in personam." As has already been pointed out above, what the o\\'ner 
of property has is a very complex aggregate of rights, privileges, 
powers and immunities. These legal relations prove on examination 
to be chiefly in rem, i.e., "multital." Looking first at the owner's 
rights in the strict sense — these clearly include a large number that 
are in rem. Note the plural form — "rights." As Hohfeld very 
properly insisted, instead of having a single right in rem, the "owner" 
of property has an indefinite number of such rights — as many, that is, 
as there are persons under correlative duties to him. A single right 
is always a legal relation between a person who has the right and some 
one other person who is under the correlative duty.^^ Each single 
right ought therefore to be called "a right in rem," or a "multital" 
right. The "ownership" includes the whole group of rights in rem 
or ' ' multital ' ' rights, as well as other groups of ' ' multital ' ' privileges, 
"multital" powers, and "multital" immunities.^** 

Familiarity with an adequate analysis of this kind reveals the hope- 
less inadequacy of a question which has frequently been asked and 
to which varying answers have been given, viz., whether a cestui 
que trust has "a right in rem" or "a right in personam. "^^ The 

17 " A cestui que trust has an equitable right in rem against the land and not 
merely a right in personam against the holder of the legal title." Professor 
Zechariah Chafee, Jr., in (1918) 31 Harvard Law Eeview, 1104. 

18 See the present writer's discussion of this point in (1915) 15 Columbia Law 
Eeview, 37-54. 

19 In (1917) 26 Yale Law Journal, 710, 742, Hohfeld seems to recognize that 
there may be a single ' ' joint right " or " joint duty. ' ' See p. 72, n. 17, and p. 93, 
infra. It is believed that as a matter of substantive law this concept can not be 
justified, although it is entirely correct so far as procedural law is concerned. 

20 Illustrations will be found in the article under discussion. 

21 "Is it [trust] jus in rem or jus in personam.^" Walter G. Hart in (1912) 28 



IXTRODICTIOX 15 

so-called "eciuitable title" of the cestui proves upon analysis to con- 
sist of an exceedingly complex aggregate of legal relations — rights, 
privileges, powers and immunities. These in turn upon examination 
are found to include groups of rights in rem or "multital" rights — 
differing perhaps in .some details from common-law rights in rem 
but nevertheless true rights in rrm according to any accurate analysis. 
So of the privileges, the powers, the immunities, of the ''efjuitable 
owner " * — groups of ' ' multital ' ' relations are found." In other words, 
the usual analysis to which we have been accustomed has treated a 
very complex aggregate of legal relations as though it wen* a simple 
thing, a unit. The result is no more enlightening than would it be 
were a chemist to treat an extraoi-dinarily complex chemical compound 
as if it Avere an element. 

This reference to the true nature of the legal relations vested in a 
cestui que trust leads to a consideration of the only other portion of 
Hohf eld's contemplated treatise which was in any sense completed, 
viz., his classification of legal relations as "concurrent" and "exclu- 
sive." This is found in the [Michigan Law Review article entitled 
The Relations between Equity and Law. This essay was written after 
a generation of law students in this country had been trained under 
the influence of what might perhaps be called the "Langdell-Ames- 
Maitland" school of thought as to the relation of equity to common 
law. Perhaps the plainest statement of the point of view of this 
school is found in the following quotation from Maitland : 

"Then as to substantive law the Judicature Act of 1873 took occa- 
sion to make certain changes. In its twenty-fifth section it laid down 
certain rules about the administration of insolvent estates, about the 
application of statutes of limitation, al)Out waste, about merger, about 
mortgages, about the assignment of choses in action, and so forth, and 
it ended with these words : 

" 'Generally in all matters not hereinbefore particularly mentioned, 
in which there is any conflict or variance between the rules of e(|uity 
and the rules of the common law with reference to the same matter, 
the rules of equity shall prevail. ' 

"Now it may well seem to you that those are very important words, 
for perhaps you may have fancied that at all manner of points there 
was a conflict between the rules of equity and the rules of the com- 
mon law, or at all events a variance. But the clause that I have just 

Law Quarterly Review, 290. Cf. also the discussion of The Nature of the Bights of 
the Cestui Que Trust, by Professor Scott in (1917) 17 Columbia Law Review, 269, 
and that on the same subject by Dean Stone in (1917) 17 Hid., 467. 

22 There are also "paucital" relations of various kinds. In other words, an 
"equitable interest" is an extremely complex aggregate of multital and paucital 
rights, privileges, powers and immunities. 



16 FUNDAMENTAL LEGAL CONCEPTIONS 

read has been in force now for over thirty years, and if you will look 
at any good commentary upon it you will find that it has done very 
little — it has been practically without effect. You may indeed find 
many cases in which some advocate, at a loss for other arguments, 
has appealed to the words of this clause as a last hope; but you will 
find very few cases indeed in which that appeal has been successful. 
I shall speak of this more at large at another time, but it is important 
that even at the very outset of our career we should form some notion 
of the relation which existed between law and equity in the year 1875, 
And the first thing that we have to observe is that this relation was 
not one of conflict. Equity had come not to destroy the law, but to 
fulfil it. Every jot and every tittle of the law was to be obeyed, but 
when all this had been done something might yet be needful, some- 
thing that equity would require. Of course now and again there had 
been conflicts : there was an open conflict, for example, when Coke 
was for indicting a man who sued for an injunction. But such con- 
flicts as this belong to old days, and for two centuries before the year 
1875 the two systems had been working together harmoniously. 

"Let me take an instance or two in which something that may for a 
moment look like a conflict becomes no conflict at all when it is exam- 
ined. Take the case of a trust. An examiner will sometimes be 
told that whereas the common law said that the trustee was the owner 
of the land, equity said that the cestui que trust was the owner. Well 
here in all conscience there seems to be conflict enough. Think what 
this would mean were it really true. There are two courts of co- 
ordinate jurisdiction — one says that A is the owner, the other says 
that B is the owner of Blackacre. That means civil war and utter 
anarchy. Of course the statement is an extremely crude one, it is a 
misleading and a dangerous statement — how misleading, how dan- 
gerous, we shall see when we come to examine the nature of equitable 
estates. Equity did not say that the cestui que trust was the owner of 
the land, it said that the trustee was the owner of the land, but added 
that he was bound to hold the land for the benefit of the cestui que 
trust. There was no conflict here. Had there been a conflict here 
the clause of the Judicature Act which I have lately read would have 
abolished the whole law of trusts. Common laAv says that A is the 
owner, equity says that B is the owner, but equity is to prevail, there- 
fore B is the owner and A has no right or duty of any sort or kind 
in or about the land. Of course the Judicature Act has not acted in 
this way; it has left the law of trusts just where it stood, because it 
found no conflict, no variance even, between the rules of the common 
law and the rules of equity. ' '-^ 

To Hohf eld's logical and analytical mind this was not; only not a 
truthful description but about as complete a misdescription of the 
true relations of equity and common law as could be devised. He 
believed, moreover, that it was heresy in the sense that it departed 
from the traditional view as found in classic writers upon equity, 

23 Maitland, Equity, 16-18. 



INTKODrCTloX 17 

such as Spence and others, and emhodicd in Uiu English Judicature 
Act in the well-known clause which is criticized by Maitland in the 
passage quoted. As the latter himself seems to recognize in other 
passages in his writings,-^ e(|uity came, not to "fulfill every jot and 
tittle" of the common law, ])ut to reform those portions of it which 
to the chancellor seemed unjust and out of date. Just how law can 
at the same time be fulfilled and yet reformed is certainly difficult 
to see. 

A demonstration of the "conflict" between equity and law, i.e., 
of the fact that in many respects ecjuity is a system of law paramount 
to and repealing pro tanto the common-law rules upon the same point, 
can be made fully clear only by one and to one who first of all inidcr- 
stands the eight fundamental legal conceptions. Such a one need not 
use the precise terminology adopted by Hohfeld, but the concepts 
themselves he must clearly have in mind. What Hohfeld here did, 
therefore, was to take the orthodox and sound theory of ecjuity as a 
system which had effectually repealed pro tanto large portions of the 
common law and conclusively to demonstrate its truth by more 
scientific analysis. 

Rights in the general sense (legal relations in general) are commonly 
divided into those which are "legal" and those Avhich are "equitable," 
the usual meaning given to these terms being that the former are 
recognized and sanctioned by courts of common law and the latter 
by courts of equity. If we examine these so-called "legal" rights, 
etc., more carefully than is usually done, we find that they clearly fall 
into two classes, viz., (1) those which a court of equity will in one way 
or another render of no avail; (2) those with the assertion of which 
a court of equity will not interfere. Compare, for example, the 
so-called "legal (common-law) title" of a constructive trustee with 
the "legal title" of an owner who is free from any trust. Clearly 
the "legal ownership" of the former is largely illusory, while that 
of the latter is quite the opposite. The truth of the situation appears 
when, calling to our aid the eight fundamental conceptions, we exam- 
ine the situation in detail. We then discover, for example, that while 
the common-law court recognizes that the constructive trustee is privi- 
leged to do certain things — e.g., destroy the property in (|uestion, 
or sell it, etc. — in equity he is under a duty not to do so. In other 
words, there is an "exclusively e<|uitabk'" diify which conflicts with 
and so nullifles each one of the "Icj^'al" (coimiion-law) jirivileges of 
the constructive trustee.-'' 

-* Especially in his essay upon The Vniucorporalc Bod;i, 3 Collected Papers, 271, 
25 And so of the major portion of the other legal relations supposed to be vested 



18 FUNDAMENTAL LEGAL CONCEPTIONS 

Careful consideration leads, therefore, to the conclusion that an 
"exclusively common-law" relation, i.e., one which only the courts 
of common law \nll recognize as valid, is as a matter of genuine 
substantive law a legal nullity, for there will always be found some 
other "exclusively equitable" relation which prevents its enforce- 
ment. Thus, to take another concrete example, a tenant for life 
without impeachment of waste has a common-law privilege to denude 
the estate of ornamental and shade trees, but in equity is under a diity 
not to do so. As privilege and duty are "jural opposites," the 
"equity law" turns out to be exactly contrary to the "common-law 
law." As equity has the last word, it follows that the "common-law 
privilege" is purely illusory as a matter of genuine substantive law.-^ 
The reader who wishes to pursue the analysis through a large number 
of concrete examples will find ample material in the essay under 
discussion. Limitations of space forbid more detailed treatment here. 

All genuine substantive-law relations therefore fall into two classes : 
(1) those recognized as valid by both courts of common law and 
courts of equity; (2) those recognized as valid exclusively by equity. 
The former we may call "concurrent," the latter, "exclusive." The 
word "concurrent" is perhaps open to criticism. When Hohfeld 
called a legal relation "concurrent" he did not mean to assert that 
it will as such necessarily receive direct "enforcement" in equity as 
well as at law. Equity may "concur" in recognizing the validity of a 
given relation either actively or passively — actively, by giving equi- 
table remedies to vindicate it ; passively, by refusing to prevent its 
enforcement in a court of common law. Consider, for example, the 
right of an owner and possessor of land that others shall not trespass 
upon it. So long as the common-law action for damages is adequate, 
equity gives no direct aid; but, on the other hand, equity does not 
prevent the recovery of damages at law for the trespass. Just as 
soon as damages are inadequate, however, equitable remedies may be 
invoked. A right of this kind may fairly be called ' ' concurrent ' ' and 
not merely "legal" (common-law). 

The matter may perhaps be put shortly as follows : what are 

in the ' ' constructive trustee. ' ' Some of the relations are, however, ' ' concurrent, ' ' 
for example, the power to convey a ' ' title ' ' free from the trust to a bona fide 
purchaser for value. 

26 But not as a matter of procedural law. The ' ' common-law courts ' ' will treat 
the "exclusively common-law" legal relations as though they were valid. In a 
code state this means at most that the facts giving rise to the paramount ' ' exclu- 
sive, ' ' i.e., exclusively equitable, relations must be pleaded affirmatively as 
"equitable counterclaims" and not as mere "defences." 



INTRODUCTION 19 

commonly called "legal" or common-law rights (and other legal 
relations) really consist of two classes: (1) those which are in con- 
flict with paramount exclusively e<iuital)le relations, and so are really 
illusory; (2) those which do not so conflict and arc therefore valid. 
The latter are "concurrent." 

Legal relations which are recognized as valid by e(|uity but not 
by common law are connnon enough in our system and are, of course, 
valid. They may properly be called "exclusive," i.e., exclusively 
ecjuitable. It may here be noted that it has happened over and over 
again that given legal relations were at first "exclusive"' but that 
after a time, because of changes in the common law, they became 
"concurrent." This, for example, is true of the rights, etc., of the 
assignee of an ordinary common-law chose in action.-' While 
originally the assignee's interest was "exclusive," he ac<|uires to-day 
not the "legal title" to the chose in action, but an aggregate of legal 
relations which are "concurrent," just as were those of the assignor 
before the assignment.-^ 

Be it noted that this classification of really valid legal relations into 
those which are "concurrent" and those which are "exclusive," 
applies e(|ually to all the fundamental relations — rights, privileges, 
powers and immunities and their correlatives. To take a simple con- 
crete example : At one period of our legal development the assignor 
of a chose in action seems to have had an "exclusively common-law" 
(and therefore, as a matter of substantive law, invalid) power to 
release the debtor, even after notice from the assignee. In equity, 
however, at the same period, such a release was not recognized as 
valid, i.e., the assignee had, after notice to the debtor of the assign- 
ment, an "exclusive" (exclusively e(|uitable) iinmiinifif from having 
the legal relations which the assignment vested in him divested by 
acts of the assignor. The assignor was at the same time under an 
"exclusive" duty not to execute such a "release." although he had 
an "exclusively common-law" (but really invalid "i privilrgc to do 
so. At a later period these relations became "concurrent"; for 
example, the "exclusive" immunity became "concurrent," so that 

2" See the present writer's disenssion of The AlienahUitu of Choses in Aciion 
in (1916) 29 Harvard Law Eeview. S16, and (1917) ."iO Harvard Law Review. 419, 
in which the history of the assignee's "rights" is set forth. 

28 In his criticisms of my discussion of the "rights'' of an assignee of a chose 
in aciion, Professor Williston — partly, it is believed, because of .a failure to 
appreciate fully the significance of the concept of "concurrent" legal relations — 
has misapprehended and so unconsciously misstated my position. This is true 
even in his final article. Ilis discussions will be found in (1916) 30 Harvard Law 
Review, 97, and (1918) 31 Harvard Law Review, 822. 



20 FUNDAMENTAL LEGAL CONCEPTIONS 

a release by the assignor after notice to the debtor of the assignment 
was inoperative both at law and in ecjuity.-" 

The present writer has been teaching equity to law students for 
some eighteen years. During the past few years he has made greater 
and greater use of Plohfeld's analysis of the relations of law and 
equity, as well as of the more fundamental legal conceptions, and has 
found it of the greatest utility in classroom discussion and state- 
ment of the actual system of law under which we live. The terms 
"concurrent" and "exclusive" may possibly be open to criticism. 
It may, for example, be thought that "concurrent" savors too much 
of activity and does not sufficiently suggest passive concurrence in 
the validity of a given relation. Thus far, however, no better terms 
have suggested themselves, or have been suggested by others, and as 
it isdifficult to use concepts without names, those suggested by Hohfeld 
have been used with success. The important thing, after all, is to 
enable the student and the lawyer to formulate general statements 
which enable us to give an accurate picture of our legal system and to 
discuss" our legal problems intelligently. In the doing of these things 
the conceptions denoted respectively by the terms "concurrent" and 
"exclusive" seem to the present writer an indispensable aid. 

In the space i.t hand it is not possible even to summarize the con- 
tents of the other essays enumerated in the list of Hohfeld 's writings. 
Of those which have not been discussed, the most important are the 
articles upon the Individual Liability of Stockholders in the ninth 
and tenth volumes of the Columbia Law Review. In the first of 
these will be found first of all an intelligible, theory of what a cor- 
poration really is — intelligible, that is, to those readers who vnll take 
the trouble to think the matter through with Hohfeld in the terms 
of the fundamental legal conceptions which he uses, hut absolutely 
unintelligible to those who will not. The current theory of a corpora- 
tion as a "juristic person" disappears under the relentless logic of 
Hohfeld 's analysis, and we see how the recognition of the fact that 
the only "persons" are human beings does not prevent us from ade- 
quately describing all the legal phenomena which accompany so-called 
"corporate existence." In the second of the two essays in question 
will be found a valuable contribution to the theory of the conflict of 
laws — a field in which Hohfeld had planned and hoped to write 
extensively. Undoubtedly, too, his studies in the conflict of laws led 
him to see more clearly than ever the necessity for a careful analysis 
of fundamental conceptions, and the confusion which exists in that 
field, especially as to the nature of law and its territorial operation, 

29 For citation of cases, see the articles cited in note 27, supra. 



INTRODUCTION 21 

furnished him with an aijuudanee of material whic-li stimuhited a 
naturally keen interest along analytical lines. 

The address upon a Vital ScJiool of Jiirispni(hnrr and Law, deliv- 
ered before the Association of American Law Schools in 1914, was 
a summons to the law schools of the country to awake and do their 
full duty in the way of training men, not merely for the business of 
earning a living by "practicing law," but also for the larger duties 
of the profession, so that they may play their part as judges, as legis- 
lators, as members of administrative commissions, and finally as citi- 
zens, in so shaping and adjusting our law that it will be a living, vital 
thing, growing with society and adjusting itself to the mores of 
the times. The programme thus outlined he lived to see adopted 
substantially as that of the school with which he was connected but, 
alas ! he was not spared to see it carried out in any large measure. 
That it may become the ideal of every university law school worthy of 
the name, is devoutly to lie wished. Granted that it is an ideal — a 
"counsel of perfection." as the dean of one large law school was 
heard to remark upon the occasion of its delivery — is that a reason 
why we of the law schools should not come as near to reaching it as 
we can? If to-day it is still a substance of things hoped for rather 
than of things attained, shall we not labor the harder, that in tlic days 
to come achievement may not fall so far short of aspiration ? 

"Ilohfeld is an idealist." "a theorist" — these and similar remarks 
the present writer has heard all too often from the lips of supposedly 
"practical" men. Granted: but after all ideals are what move the 
world; and no one recognized more clearly than did Ilohft'ld that 
"theory" which will not work in practice is not sound theory. "It is 
theoretically correct but will not work in practice" is a common but 
erroneous statement. If a theory is "theoretically correct" it will 
work; if it will not work, it is "theoretically incorrect." Upon these 
propositions Ilohfeld 's work was based : by these he would have it 
tested. "Theory," to which he devoted his life, was to him a means 
to an end — the solution of legal problems and the development of our 
law so as to meet the hunuin needs which art^ the .sole reasons for its 
existence. In the opinion of the present wi-iter. no more "practical" 
legal work was ever done than that wliit-h is found in the pages of 
ITolifeld's writings, and it is as such that the attempt has here been 
nuide to outline the more fundamental portions of it. in the hope that 
it may thus be brought to the attention of a wider eirdc of readers. 

W.vLTF.u AViir.ixKR Cook. 



22 FUNDAMENTAL LEGAL CONCEPTIONS 

Concrete illustrations of the utility of the method of legal analysis 
set forth in Hohfeld's essays on Fundamental Legal Conceptions will 
be found in the essays, reprinted below, entitled: Faulty Analysis in 
Easement and License Cases; The Nature of StockJiolders' Individual 
Liability for Corporation Dehts; The Individual Liability of Stock- 
holders and the Conflict of Laws. Other practical applications of the 
method are to be found in the following discussions by other writers : 

The Declaratory Judgment, by E. M. Borchard, (1918) 28 Yale Law 

Journal, 1, 105. 
The Alienability of Choses in Action, by Walter Wheeler Cook, (1916) 

29 Harvard Law Review, 816, and (1917) 30 Harvard Law 

Review, 450. 
The Privileges of Labor Unions in the Struggle for Life, by Walter 

Wheeler Cook, (1918) 27 Yale Law Journal, 779. 
Offer and Acceptance, and. Some of the Resulting Legal Relations, by 

Arthur L. Corbin, (1917) 28 Yale Law Journal, 169 (also in the 

editorial work of the same author in the third American edition 

of Anson on Contracts). 
Conditions in the Law of Contracts, by Arthur L. Corbin, (1919) 28 

Yale Law Journal, 739. 

The analysis is also used in a large number of comments upon recent 
cases in volumes 26, 27 and 28 of the Yale Law Journal. 



SOME FUXDAMEXTAL LEGAL CONCEPTIOXS 
AS APPLIED IX JUDICIAL REASOXIXG* 



From very early days down to the present time the essential nature 
of trusts and other equita))le interests has formed a favorite subject 
for analysis and disputation. The classical discussions of Bacon^ and 
Coke are familiar to all students of equity, and the famous definition 
of the great chief justice (however inadequate it may really be) is 
quoted even in the latest text-books on trusts.- That the subject has 
had a peculiar fascination for modern legal thinkers is abundantly 
evidenced by the well-known articles of Langdell^ and Ames,* by the 

* Reprinted by permission from (1913) 23 Yale Law Journal, 16, with manu- 
script changes by the author. 

1 Bacon on Uses (circa 1602; Rowe's ed., 1806), pp. 5-6: "The nature of an 
use is best discerned by considering what it is not, and then what it is. . . . First, 
an use is no right, title, or interest in law; and therefore master attorney, who 
read upon this statute, said well, that there are but two rights: Jns in re: Jus ad 
rem. 

"The one is an estate, which is jus in re; the other a demand, which is jus ad 
rem, but an use is neither. . . . So as now we are come by negatives to the 
affirmative, what an use is. . . . Usus est dor)iinvum fduciarium: Use is an owner- 
ship in trust. 

"So tliat usxis ^- status, sive possessio, potius differunt secundum rationem fori, 
quam secundum naturam rei, for that one of them is in court of law. the other in 
court of conscience. .'. ." 

2 Co. Lit. (1628) 272 b: "Nota, an use is a trust or confidence reposed in some 
other, which is not issuing out of the land, but as a thing collaterall, annexed in 
privitie to the estate of the land, and to the person touching the land, scilicet, that 
cesty que use shall take the profit, and that the terre-tenant shall make an estate 
according to his direction. So as cesty que use had neither jus in re, nor jus ad 
rem, but only a confidence and trust for which he had no remedie by the com- 
mon law, but for the breach of trust, his remedie was only by subpoena in 
chancerie. . . . " 

This definition is quoted and discussed approvingly in Lewin, Trusts (12th ed., 
1911), p. 1. It is also noticed in Maitland, Lectures on Equity (1909), pp. 43, 
116. 

3 See Langdell, Classification of Fights and Wrongs, (1900) 13 Harvard Law 
Review, 659, 673: "Can equity then create such rights as it finds to be necessary 
for the purposes of .instice? As equity wields only physical power, it seems to be 
impossible that it should actually create anything. ... It seems, therefore, that 



24 FUNDAMENTAL LEGAL CONCEPTIONS 

oft-repeated observations of Maitland in his Lectures on Equity,^ by 
the very divergent treatment of Austin in his Lectures on Juris- 
prudence,^ by the still bolder thesis of Salmond in his volume on 
Jurisprudence,'' and by the discordant utterances of Mr. Hart® and 

equitable rights exist only in contemplation of equity, i.e., that they are a fiction 
invented by equity for the promotion of justice. . . . 

"Shutting our eyes, then, to the fact that equitable rights are a fiction, and 
assuming them to have an actual existence, Avhat is their nature, what their extent, 
and what is the field which they occupy? . . . They must not violate the law. . , . 
Legal and equitable rights must, therefore, exist side by side, and the latter cannot 
interfere with, or in any manner affect, the former. ' ' 

See also (1887) 1 Harvard Law Review, 55, 60: "Upon the whole, it may be 
said that equity could not create rights in rem if it would, and that it would not 
if it could." Compare ibid., 58; and Summary of Equity Plead. (2d ed., 1883), 
sees. 45, 182-184. 

* See Ames, Purchase for Value Without Notice, (1887) 1 Harvard Law 
Eeview, 1, 9: "The trustee is the owner of the land, and, of course, two persons 
with adverse interests cannot be owners of the same thing. What the cestui que 
trust really oavus is the obligation of the trustee; for an obligation is as truly the 
subject-matter of property as any ph3'sieal res. The most striking difference 
between property in a thing and property in an obligation is in the mode of 
enjojTiient. The owner of a house or a horse enjoys the fruits of ownership 
without the aid of any other person. The only way in which the owner of an 
obligation can realize his ownership is by compelling its performance by the 
obligor. Hence, in the one case, the owner is said to have a right in rem, and in 
the other, a right in personam. In other respects the common rules of property 
apply equally to oT\Tiership of things and ownership of obligations. For example, 
what may be called the passive rights of ownership are the same in both cases. 
The general duty resting on all mankind not to destroy the property of another, 
is as cogent in favor of an obligee as it is in favor of the owner of a horse. And 
the violation of this duty is as pure a tort in the one case as in the other. ' ' 

^Lectures on Equity (1909), 17, 18, 112: "The thesis that I have to maintain 
is this, that equitable estates and interests are not jxira in rem. For reasons that 
we shall perceive by and by, they have come to look very like jura in rem; but 
just for this very reason it is the more necessary for us to observe that they are 
essentially jura in personam-, not rights against the world at large, but rights 
against certain persons.." 

See also Maitland, Trust and Corporation (1904), reprinted in 3 Collected 
Papers, 321, 325. 

6 (5th ed.) Vol. I, p. 378: "By the proAisions of that part of the English law 
which is called equity, a contract to sell at once vests jus in rem or ownership in the 
buyer, and the seller has only jus in re aliena. ... To complete the transaction 
the legal interest of the seller must be passed to the buj'er, in legal form. To this 
purpose the buyer has only jus in personam: a right to compel the seller to pass 
his legal interest; but speaking generally, he has dominium or jus in rem, and the 
instrument is a conveyance. ' ' 

" (2d ed., 1907) p. 230: "If we have regard to the essence of the matter rather 
than to the form of it, a trustee is not an owner at all, but a mere agent, upon 
whom the law has conferred the power and imposed the duty of administering the 



AH APPLIKl) IN .irOKIAL REASONING 25 

Mr. AVliitloek" in their voiy recent eontrilmtioiis to our periodical 
literature. 

It is believed that all of tiie discussions and analyses referred to 
are inadecjuate. Perhaps, however, it would liave to he admitted that 
even the great intrinsic interest of the subject itself and the note- 
worthy divergence of opinion existing among thought f»il lawyers of 
all times would fail to afford more than a comparatively slight excuse 
for any further discussion considered as a mere end in itself. But, 
<|uite apart from the presumal)ly practical consideration of endeavor- 
ing to "think straight" in relation to all legal problems, it is apparent 
that the true analysis of trusts and other e(juitable interests is a matter 
that should appeal to even the most extreme pragmatists of the law. 
It may well be that one's view as to the correct analysis of such 
interests would control the decision of a mimber of specific (piestions. 
This is obviously tnie as regards the solution of many difficult and 
delicate problems in constitutional law and in the conflict of laws.'" 
So, too, in certain questions in the law of perpetuities, the intrinsic 
nature of equitable interests is of great significance, as attested by 
the well-known Gomm case'^ and others more or less similar. The 

property of another person. In legal theory, however, he is not a mere agent, but 
an owner. He is a person to whom the property of someone else is fictitionsly 
attributed by the law, to the intent that the rights and powers thus vested in a 
nominal owner shall be used by him on behalf of the real owner." 

8 See Walter G. Hart (author of Difiest of Law of Tnuits), The Place of 
Trust in Jurisprudence, (1912) 28 Law Quarterly Review, 290, 296. His position 
is substantially that of Ames and Maitland. 

At the end of this article Sir Frederick Pollock, the editor, puts the query: 
"Why is Trust not entitled to rank as a head .s«i fiincri^?" 

9 See A. N. Whitlock, Classification of the Law of TruMs, (191.T) 1 California 
Law Review, 215, 218: "It is submitted," says the writer, "that the cestui has in 
fact something more than a right in personam, that such a right might be more 
properly described as a right in personam ad rem, or, possibly, a right in rem per 
personam." 

Surely such nebulous an<l ruiiibrotis cxi)rcssions as those could hardly fail to 
make "confusion worse confounded." 

10 See Beale, Eqititahle Interests in Foreifin Vropertij, (1907) 20 Harvard Law 
Review, 382; and compare the important cases, Fall r. Easiin (1905). "5 Neb., 
104; s. 0. (1909), 215 U. S., 1, 14-15 (especially concurring opinion of Holmes, 
J.) ; fielover, Bates rf- Co. v. Walsh (1912), 226 U. S., 112; Bank of Africa LiviUed 
V. Cohen [1909] 2 Ch. 129, 143. 

n (1882) 20 Ch. D. 562, 580, per Sir George .Tessel. M. R. : "If then the rule 
as to remoteness applies to a covenant of this nattire, this covenant clearly is bad 
as extending beyond the period allowed by the rule. Whether the rule applies or 
not depends upon this, as it ap]iears to me, does or does not the covenant give 
an interest in the land? ... If it is a mere i)ersonal contract it cannot be 
enforced against the assignee. Therefore the company must admit that somehow 



26 FUNDAMENTAL LEGAL CONCEPTIONS 

same thing is apt to be true of a number of special questions relating 
to the subject of bona fide purchase for value. So on indefinitely." 

But all this may seem like misplaced emphasis ; for the suggestions 
last made are not peculiarly applicable to equitable interests: the 
same points and the same examples seem valid in relation to all pos- 
sible kinds of jural interests, legal as well as equitable, — and that too, 
Avhether we are concerned with ' ' property, " " contracts, " " torts, ' ' or 
any other title of the law. Special reference has therefore been made 
to the subject of trusts and other equitable interests only for the 
reason that the striking divergence of opinion relating thereto con- 
spicuously exemplifies the need for dealing somewhat more inten- 
sively and systematically than is usual with the nature and analysis 
of all types of jural interests. Indeed, it would be virtually impos- 
sible to consider the subject of trusts at all adequately without, at the 
very threshold, analyzing and discriminating the various fundamental 
conceptions that are involved in practically every legal problem. In 
this connection the suggestion may be ventured that the usual dis- 
cussions of trusts and other jural interests seem inadequate (and at 
times misleading) for the very reason that they are not founded on 
a sufficiently comprehensive and discriminating analysis of jural 
relations in general. Putting the matter in another way, the ten- 
dency — and the fallacy — has been to treat the specific problem as 
if it were far less complex than it really is; and this commendable 
effort to treat as simple that which is really complex has, it is 
believed, furnished a serious obstacle to. the clear understanding, the 
orderly statement, and the correct solution of legal problems. In 
short, it is submitted that the right kind of simplicity can result only 
from more searching and more discriminating analysis. 

If, therefore, the title of this article suggests a merely philo- 
sophical inquiry as to the nature of law and legal relations, — a dis- 
cussion regarded more or less as an end in itself. — the writer may 
be pardoned for repudiating such a connotation in advance. On 
the contrary, in response to the invitation of the editor of this 
journal, the main purpose of the writer is to emphasize certain oft- 
neglected matters that may aid in the understanding and in the 
solution of practical, everyday problems of the law. With this end 

it hinds the land. But if it binds the land, it creates an equitable interest in the 
land." 

12 Compare Ball v. MUlilcen (1910), 31 E. L, 36; 76 Atl., 789, 793, involving a 
point other than perpetuities, but quoting in support of the decision reached 
Sir George Jessel's language as to "equitable interests in land." See preceding 
note. 



A;^ APPLIED IX JUDICIAL RLASONING 27 

in view, the present article and another soon to follow will diseuss, 
as of chief concern, the basic conceptions of the law, — the legal 
elements that enter into all types of jnral interests. A later article 
will deal specially with the analysis of certain typical and important 
interests of a complex character, — more particularly trusts and other 
ecpiitable interests. In passing, it seems necessary to state that both 
of these articles are intended more for law school students than for 
any other class of readers. For that reason, it is hojicd that the 
more learned reader may pardon certain parts of the discussion that 
might otherwise seem unnecessarily elementary and detailed. On the 
other hand, the limits of spape inherent in a periodical article must 
furnish the excuse for as great a brevity of treatment as is con- 
sistent with clearness, and for a comparatively meager discussion — or 
even a total neglect — of certain matters the intrinsic importance of 
which might otherwise merit greater attention. In short, the 
emphasis is to be placed on those points believed to have the greatest 
practical value. 

LEGAL CONX'EPTIOXS CONTRASTED AVITII N()X- 
LEGAL CONCEPTIONS 

At the very outset it seems necessary to emphasize the importance 
of differentiating purely legal relations from tiie physical and mental 
facts that call such relations into being. Obvious as this initial sug- 
gestion may seein to be, the arguments that one may hear in court 
almost any day, and likewise a consideralile number of judicial 
opinions, afford ample evidence of the inveterate and ini fortunate 
tendency to confuse and blend the legal and the non-legal quantities 
in a given problem. There are at least two special reasons for this. 

For one thing, the association of ideas involved in the two sets of 
relations — the physical and the mental on the one hand, and tiie purely 
legal on the other — is, in the very nature of the case, extremely close. 
This fact has necessarily had a marked influence upon the general 
doctrines and the specific rules of early systems of law. Thus, we are 
told by Pollock and ^Maitland : 

''Ancient German law. like ancient Roman law. sees great diffi- 
culties in the way of an assignment of a debt or other benefit of a 
contract . . . men do not see how there can be a transfer of a right 
unless that right is embodied in .some coqioreal thing.'-' The history 
of th(^ incorporeal things has shown us this: they are not completely 
transferred until the transferee has obtained seisin, has turned his 
beasts onto the pasture, presented a clerk to the church or hanged a 

12a Compare, to the same effect, Holmes, The Common Law (1S81). 400. 



28 FUNDAMENTAL LEGAL CONCEPTIONS 

thief upon the gallows. A covenant or a warranty of title may be so 
bound up with land that the assignee of the land will be able to sue 
the covenantor or warrantor. "^^ 

In another connection, the same learned authors observe : 

' ' The realm of medieval law is rich with incorporeal things. Any 
permanent right which is of a transferable nature, at all events if it 
has what we may call a territorial ambit, is thought of as a thing that 
is very like a piece of land. Just because it is a thing it is transfer- 
able. This is no fiction invented by the speculative jurists. For the 
popular mind these things are things. The lawyer's business is not 
to make them things but to point out that they are incorporeal. The 
layman who wishes to convey the advowson of a church will say that 
he conveys the church ; it is for Bracton to explain to him that what 
he means to transfer is not that structure of wood and stone which 
belongs to God and the saints^ but a thing incorporeal, as incorporeal 
as his own soul or the anima mundi."^^ 

A second reason for the tendency to confuse or blend non-legal and 
legal conceptions consists in the ambiguity and looseness of our legal 
terminology. The word "property" furnishes a striking example. 
Both with lawyers and wdth laymen this term has no definite or stable 
connotation. Sometimes it is employed to indicate the physical object 
to which various legal rights, privileges, etc., relate; then again — 
with far greater discrimination and accuracy — the word is used to 
denote the legal interest (or aggregate of legal relations) appertaining 
to such physical object. Frequently there is a rapid and fallacious 
shift from the one meaning to the other. At times, also, the term is 
used in such a "blended" sense as to convey no definite meaning 
whatever. 

For the purpose of exemplifying the looser usage just referred to, 
we may quote from ^Vilson v. Ward Lumder Co.:^^ 

"The term 'property,' as commonly used, denotes any external 
object over ivhich the right of property is exercised. In this sense it 
is a very wide term, and includes every class of acquisitions which a 
man can own or have an interest in." 

Perhaps the ablest statement to exemplify the opposite and more 
accurate usage is that of Professor Jeremiah Smith (then Mr. Justice 
Smith) in the leading case of Eaton v. B. C. & M. R. R. Co.-^^ 

"In a strict legal sense, land is not 'property,' but the subject of 

13 2 Hist. Eng. Law (2d ed., 1905), 226. 
.■i-ilUd., 124. 

15 (1895) 67 Fed. Eep., 674, 677. For a somewhat similar, and even more eon- 
fusing, form of statement, see Iv re Fixen (1900), 102 Fed. Rep., 295, 296. 

ifi 51 N. H., 504, 511. See also the excellent similar statements of Comstoek, 
J., in Wynehamer v. People (1856), 13 N. Y., 378, 396; Selden, J., s. c, 13 N. Y., 



AS APPLIED IN JUDICIAL REASONING 29 

property. The term 'property,' altliough in common parlance fre- 
quently applied to a tract of land or a chattel, in its U'gul signification 
'means only the riufhts of the owner in relation to it.' 'It denotes a 
right over a determinate thing.' 'Property is the right of any person 
to possess, use, enjoy, and dispose of a thing.' Selden, J., in Wyne- 
ham(r v. People, 13 X. Y., 378, p. 433; 1 Blackstone's Com.. 138; 2 
Austin's Jurisprudence, 3d ed., 817, 818. . . . The right of indefinite 
user (or of using indefinitely) is an essential (piality of absolute prop- 
erty, without which al)solute property can have no existence. . . . 
This right of user necessarily includes the right and power of exclud- 
ing others from usinsf the land. See 2 Austin on Jurispruthncc, 3d 
ed., 836; Wells, J., m ^Valher v. 0. C. ir. h'. /.'.. 103 Mass.. 10, 
p. 14. "i«^ 

Another useful passage is to be found in the opinion of Sherwood, 
J., in St. Louis v. Hall:^' 

"Sometimes the term is applied to the thing itself, as a horse, or a 
tract of land ; these things, however, though the subjects of projjfrty. 
are, when coupled with possession, l)ut the indicia, tiie visible mani- 
festation of invisible rights, 'the evidence of things not seen.' 

"Property, then, in a determinate object, is composed of certain 
constituent elements, to wit : The unrestricted right of use, enjoyment, 
and disposal, of that object." 

In connection with the ambiguities latent in the term "property" 
it seems well to observe that similar looseness of thought and expres- 
sion lurks in the supposed (Imt false) contrast between "corporeal" 
and "incoi'poreal" property. The second passage above quoted from 
Pollock and IMaitland exhibits one phase of this matter. For further 
striking illustration, reference may be made to Blackstone's well- 
known discussion of corporeal and incorporeal hereditaments. Thus, 
the great commentator tells us : 

"But an hereditament, says Sir Edward Coke, is by much the 
largest and most comprehensive expression ; for it includes not only 



378, 433-434; Ryan, C, in Law v. Bees Printwg Co. (1894). 41 Neb.. 127, 146; 
Magruder, J., in Dixon v. People (1897), 168 111., 179, 190. 

16a Compare the remarks by Gray, J., dissenting in Eoberson v. Bochester Fold- 
ing Box Co. (1902), 171 N. Y., .538. 64 N. E.. 442: "Property is not, necessarily, 
the thing itself, which is owned; it is the right of the owner in relation to it. The 
right to be protected in one's possession of a thing, or in one's privileges, belong- 
ing to him as an individual, or secured to him as a member of the commonwealth, 
is property, and as such entitled to the protection of the law. ' ' 

1' (1893) 116 Mo., 527, 533 -.534. That the last sentence quoted is not alto- 
together adequate as an analysis of property will appear, it is hoped, from the 
latter part of the present discussion. 

See also, as regards the term, "property." the opinion of Doe. C. .1., in Smith 
V. Fairloh (1894), 68 N. H., 123. 144-145. ("By considering the property dw- 
solved into the legal rights of which it consists," etc.) 



30 . FUNDAMENTAL LEGAL CONCEPTIONS 

lands and tenements, but whatsoever may he inherited, be it corporeal 
or incorporeal, real, personal, or mixed. ""^^ 

It is clear that only legal interests as such can be inherited ; yet in 
the foregoing quotation there is inextricable confusion between the 
physical or "corporeal" objects and the corresponding legal interests^ 
all of which latter must necessarily be ' ' incorporeal, " or " invisible, ' ' 
to use the expression of Mr. Justice Sherwood. This ambiguity of 
thought and language continues throughout Blackstone's discussion; 
for a little later he says : 

"Hereditaments, then, to use the largest expression, are of two 
kinds, corporeal and incorporeal. Corporeal consist of such as affect 
the senses, such as may be seen and handled by the body ; incorporeal 
are not the objects of sensation, can neither be seen nor handled ; are 
creatures of the mind, and exist only in contemplation." 

Still further on he says: 

" ' An incorporeal hereditament is a right issuing out of a thing cor- 
porate (Avhether real or personal), or concerning, or annexed to, or 
exercisable within, the same. . . . 

' ' Incorporeal hereditaments are principally of ten sorts : advowsons, 
tithes, commons, ways, offices, dignities, franchises, corodies or pen- 
sions, annuities, and rents. ' ' 

Since all legal interests are "incorporeal" — consisting, as they do,, 
of more or less limited aggregates of abstract legal relations — such a 
supposed contrast as that sought to be drawn by Blackstone can but 
serve to mislead the unwary. The legal interest of the fee simple 
owner of land and the comparatively limited interest of the owner of 
a "right of way" over such land are alike so far as " incorporeality " 
is concerned; the true contrast consists, of course, primarily in the 
fact that the fee simple owner 's aggregate of legal relations is far more 
extensive than the aggregate of the easement owner. 

Much of the difficulty, as regards legal terminology, arises from the 
fact that many of our words were originally applicable only to physi- 
cal things ;^^ so that their use in connection with legal relations is, 
strictly speaking, figurative or fictional. The term "transfer" is a 

IS 2 Black. Com. (1765), 16-43. 

19 Compare Pollock & Maitland, History of English Law (2d ed., 1905), Vol. 
II, p. 31 : "Few, if any, of the terms in our legal vocabulary have always been 
technical terms. The license that the man of science can allow himself of coining 
new words is one which by the nature of the case is denied to lawyers. They have 
to take their terms out of the popular speech; gradually the words so taken are 
defined ; sometimes a word continues to have both a technical meaning for lawyers 
and a different and vaguer meaning for laymen; sometimes the word that lawyers 
have adopted is abandoned by the laity. ' ' Compare also ibid., p. 33. [Compare 
also the discussion of Lord Kinnear in Banh cf Scotland v. Macleod [1914] 
A. C, 311, 324.] 



AS APPLIED rx JUDICIAL REASONING 31 

good example. If X says that ho lias transferred his watch to Y, he 
may conceivably mean, quite literally, that he has physically handed 
over the watch to Y; or, more likely, that he has "transferred" his 
legal interest, without any delivery of possession, — the latter, of 
course, being a relatively figurative use of the term. This point will 
be reached again, when we come to treat of the "transfer" of legal 
interests. As another instance of this essentially metapiiorical u.se of 
a term borrowed from the physical world, the word "power" may be 
mentioned. In legal discourse, as in daily life, it may frequently be 
used in the sense of physical or mental capacity to do a thing; but, 
more usually and aptly, it is used to indicate a "legal power," the 
connotation of which latter term is fundamentally different. The 
same observations apply, mutatis mutandis, to the term "liberty." 

Passing to the field of contracts, we soon discover a similar in- 
veterate tendency to confuse and blur legal discussions by failing to 
discriminate between the mental and physical facts involved in the 
so-called "agreement" of the parties, and the legal "contractual 
obligation" to which those facts give rise. Such ambiguity and con- 
fusion are peculiarly incident to the use of the term "contract." One 
moment the word may mean the agreement of the parties; and then, 
with a rapid and unexpected shift, the writer or speaker may use the 
term to indicate the contractual obligation created by law as a result 
of the agreement. 

The distinction between the agreement of the parties on the one 
hand, and, on the other, the legal obligation (or aggregate of present 
and potential legal rights, privileges, powers and immunities, etc.) 
is clearly recognized and forcefully stated in Aijcoch v. Martin (1867), 
37 Ga., 124, 128 and 143 (per Harris, J.) : 

"The obligation then is not the contract,^^'' is not in the contract, 
nor does it constitute any one of its terms, nor is it e(|uivalent to all 
the terms united. . . . When the contract is made, the existing, bind- 
ing law, whatever it may be, being the obligation on promisor to per- 
form his undertaking, co instanti attaches. . . . The terms of the 
contract are made alone by the parties to the agreement. 

"The obligation is the creature of law, — is the law existing when 
the contract is made, binding to the performance of the promi.se, and 
is furnished solely by society." 

Further instances of this sort of ambiguity will be noticed as the 
discussion proceeds. . 

19a "A contract is an obligation attached hy the mere force of law to certain 
acts of the parties, usually words, which ordinarily accompany and represent known 
intent." Hand, J., in Hotrldiss v. Natiiwal CU)! Bank (1911), 200 Fed. 2S7. 
Compare also Baldwin, J., in McCracken v. Howard (1844), 3 How. 608. 612. 



32 FUNDAMENTAL LEGAL CONCEPTIONS 

OPERATIVE FACTS CONTRASTED WITH EVIDENTIAL 

FACTS 

For the purpose of subsequent convenient reference, it seems neces- 
sary at this point to lay emphasis upon another important distinction 
inherent in the very nature of things. The facts important in rela- 
tion to a given jural transaction may be either operative facts or 
evidential facts. Operative, constitutive, causal, or dispositive facts 
are those which, under the general legal rules that are applicable, 
suffice to change legal relations, that is, either to create a new relation, 
or to extinguish an old one, or to perform both of these functions 
simultaneously.^" For example, in the creation of a contractual obli- 
gation between A and B, the affirmative operative facts are, inter alia, 
that each of the parties is a human being, that each of them has lived 
for not less than a certain period of time (is not "under age"), that 
A has made an "offer," that B has "accepted" it, etc. It is some- 
times necessary to consider, also, what may, from the particular point 
of view, be regarded as negative operative facts. Thus, e.g., the fact 
that A did not wilfully misrepresent an important matter to B, and 
the fact that A had not "revoked" his offer, must really be included 
as parts of the totality of operative facts in the case already put. 

Taking another example, — this time from the general field of torts — 
if X commits an assault on Y by putting the latter in fear of bodily 
harm, this particular group of facts immediately creates in Y the 

20 Compare Waldo, C. J., in Wliite v. Mvltonomah Co. (1886), 13 Ore., 317, 323: 
" A ' right ' has been defined by Mr. Justice Holmes to be the legal consequence 
which attaches to certain facts. (The Common Law, 214.) Every fact which 
forms one of the group of facts of which the right is the legal consequence apper- 
tains to the substance of the right." 

The present writer's choice of the term "operative" has been suggested by 
the following passage from Thayer, Preliminary Treatise on Evidence (1898), 
p. 393: "Another discrimination to be observed is that between documents which 
constitute a contract, fact, or transaction, and those which merely certify and 
evidence something outside of themselves, — a something valid and operative, 
independent of the writing. ' ' 

Compare also Holland, Jurisprudence (10th ed., 1906), 151: "A fact giving rise 
to a right has long been described as a 'title'; but no such well-worn equivalent 
can be found for a fact through which a right is transferred, or for one by which a 
right is extinguished. A new nomenclature was accordingly invented by Bentham, 
which is convenient for scientific use, although it has not found its way into ordi- 
nary language. He describes this whole class of facts as 'Dispositive'; distin- 
guishing as 'Investitive' those by means of which a right comes into existence, as 
' Divestitive ' those through which it terminates, and as ' Translative ' those through 
which it passes from one person to another. ' ' 

The word "ultimate," sometimes used in this connection, does not seem to be so 
pointed and useful a term as either ' ' operative " or ' ' constitutive. ' ' 



AS APPLIKD IX JIDICIAL KKASoNINC 33 

privilege of self-defense, — tliat is, the privilege of using sufficient 
force to repel X's attack; or, correlatively, the otherwise existing 
duty of Y to refrain from the application of force to the person of 
X is, by virtue of the special operative facts, iiiiiiKMliatcly tfriiiinated 
or extinguished. 

In passing, it may not he amiss to notice that the term, "facts in 
issue," is sometimes used in the present connection. If, as is usual, 
the term means "facts put in issue by the pleadings," the expression 
is an unfortunate one. The operative facts alleged by the pleadings are 
more or less generic in character; and if the pleadings be sufficient, 
only such generic operative facts are "put in issue." The operative 
facts of real life are, on the other hand, very specitic. That being so, 
it is clear that the real and specific facts finally relied on are com- 
paratively seldom put in issue by the pleadings. Thus. if. in an 
action of tort, the declaration of A alleges that he was. through the 
carelessness, etc., of 15, bitten by the latter 's dog. the fact alleged is 
generic in character, and it matters not whether it was dog Jim or 
dog Dick that did the biting. Even assuming, therefore, that the 
biting was done by Jim (rather than by Dick), it could not be .said 
that this specific fact was put in issue by the pleadings. Similarly, 
and more obviously, the pleading in an ordinary action involving 
so-called negligence, is usually very generic in character,-^ so that 
any one of various possible groups of specific operative facts would 
suffice, so far as the defendant's obligation ex elelicto is concerned. 
It therefore could not be said that any one of such groups had b<>en 
put in issue by the pleadings. A common fallacy in this connection is 
to regard the specific operative facts established in a given ease as 
being but "evidence" of the generic (or "ultimate") operative facts 
alleged in the pleadings.^- 



21 Compare, however, Illi>ioi.-< Si,,l Co. v. Ostrouski (1902), 194 111., 376, 384, 
correctly sustaining a declaration alicginf; the operative facts .tpccificallij instead 
of gcnerically, as required by the more ajiprovcd fnmis of pleading. [See also the 
discussion in Nagel v. United lx}is, Co. (1913), 169 Mo. Apj>.. 284; 152 S. W.. 621 ; 
Erdman v. United Ei/s. Co. (1913), 173 Mo. App., 98; 155 S. W., 1081; Israel v. 
United Bi/s. Co. (1913), 172 Mo. App., 656; 1.55 R. W., 1092.] 

The rules of pleading determining whether allegations must be generic or spe- 
cific — and if the latter, to what degree — arc, like other rules of law, based on con- 
siderations of policy and convenience. TIuis the facts constituting fraud are fre- 
quently required to be alleged in comparatively specific form; and similarly as 
regards crueUi/ in a suit for divorce based on that ground. The rea.sons of policy 
are obvious in each case. [For a vali:able explanation as regards specific pleading 
of fraud, see Mnir v. Fio Grande Euhher Estates, Lim. [1913] A. C, 853, 863, 
864.] 

22 Compare McCaujhey v. Schucttc (1S97), 117 Cal., 223. While the decision in 



34 FUNDAMENTAL LEGAL CONCEPTIONS 

An evidential fact is one which, on being ascertained, affords some 
logical basis — not conclusive — for inferring some other fact. The 
latter may be either a constitutive fact or an intermediate evidential 
fact. Of all the facts to be ascertained by the tribunal, the operative 
are, of course, of primary importance ; the evidential are subsidiary in 
their functions.-^ As a rule there is little danger of confusing evi- 
dential facts with operative facts. But there is one type of case that 
not infrequently gives rise to this sort of error. Suppose that in Janu- 
ary last a contractual obligation was created by written agreement 
passing between A and B. In an action now pending between these 
parties, the physical instrument is offered for inspection by the 
tribunal. If one were thoughtless, he would be apt to say that this 
is a case where part of the operative facts creating the original obliga- 
tion are directly presented to the senses of the tribunal. Yet a 
moment's reflection will show that such is not the case. The document, 
in its then existing shape, had, as regards its operative effect, spent its 
force as soon as it w^as delivered in January last. If, therefore, the 
unaltered document is produced for inspection, the facts thus ascer- 
tained must, as regards the alleged contractual agreement, be purely 
evidential in character. That is to say, the present existence of the 
piece of paper, its specific tenor, etc., may, along with other evidential 
facts (relating to absence of change) tend to prove the various opera- 
tive facts of last January, — to wit, that such paper existed at that 
time; that its tenor was then the same as it now is; that it was 
delivered by A to B, and so forth. 

It now remains to observe that in many situations a single con- 
venient term is employed to designate (generically) certain mis- 
cellaneous groups of operative facts which, though differing widely 
as to their individual ''ingredients," have, as regards a given matter, 
the same net force and effect. When employed with discrimination, 
the term "possession" is a word of this character; so also the term 

this case can be supported, the statement that the specific facts pleaded were ' ' evi- 
dentiary" seems inaccurate and misleading. 

There are, of course, genuine instances of the fatally erroneous pleading of 
strictly evidential facts instead of either generic or specific operative facts. See 
Eogers v. Milicaukee (1861), 13 Wis., 610; and contrast Illinois Steel Co. v. 
Ostrowski, supra, note 21. 

23 Both operative and evidential facts must, under the law, be ascertained in 
some one or more of four possible modes: 1. By judicial admissions (what is not 
disputed) ; 2. By judicial notice, or knowledge (what is known or easily knowable) ; 
3. By judicial perception (what is ascertained directly through the seases; cf. 
"real evidence") ; 4. By judicial inference (what is ascertained by reasoning from 
facts already ascertained by one or more of the four methods here outlined). 



AS APPLIED IN JUDICIAL REASONING 35 

'capacity," the term ''domicile," etc. But the general tendency to 
confuse legal and non-legal (juantities is manitVst here as elsewhere ; 
so that only too frequently these words are used rather nebulously to 
indicate legal relations as such.-* 

FUNDAMENTAL JURAL RELATIONS CONTRASTED 
WITH ONE ANOTHER 

One of the greatest hindrances to the clear understanding, the 
incisive statement, and the true solution of li'gal ])rol)l»Mns fre<|ut'ntly 
arises from the express or tacit assumption tliat all legal relations 
jnay be reduced to "rights" and "duties," and that these latter 
categories are therefore adecjuate for the purpose of analyzing even 
the most complex legal interests, such as trusts, options, escrows, 
"future" interests, corporate interests, etc. Even if the difficulty 
related merely to inade(iuacy and ambiguity of terminology, its seri- 
ousness would nevertheless be worthy of definite recognition and 
persistent effort toward improvement ; for in any closely reasoned 
problem, whether legal or non-legal, chameleon-hued words are a peril 
both to clear thought and to lucid expression.-' As a matter of fact, 
however, the above mentioned inadeciuacy and ambiguity of terms 

24 As an example of this, compare Lord "Westbiiry, in B(U r. Krnvcih/ (1868), 
L. E. 1 H. L. (Sc), 307: "Domicile, therefore, is an idea of the law. It is the 
relation which the law creates between an individual and a particular locality or 
country." [Compare the confusion in the discussion of the same subject by Far- 
well, J., in In re Johnson [1903] 1 Ch., 821, 824-825.] 

Contrast the far more accurate language of Chief Justice Shaw, in Ahiu<j1on v. 
Bridgcxi-ater (1840), 23 Pick., 170: "The fact of domicile is often one of the 
highest importance to a person; it determines his civil and political rights and 
privileges, duties and obligations. ..." 

25 In this connection, the words of one of the great masters of the common law 
are significant. In his notable Preliminary Treatise on Evidence (1S98), p. 100. 
Professor James Bradley Thayer said: 

"As our law develops it becomes more and more important to give definiteness 
to its phraseology; discriminations multiply, new situations and complications of 
fact arise, and the old outfit of ideas, discriminations, and phrases has to be care- 
fully revised. Law is not so unlike all other subjects of human contemplation that 
clearness of thought will not help us powerfully in graspinc it. If terms in com- 
mon legal use are used exactly, it is well to know it; if thev are used inexactly, it 
is well to know that, and to remark just how they are used. ' ' 

Perhaps the most characteristic feature of this author's groat constructive con- 
tribution to the law of evidence is his constant insistence on the need for clarifying 
our legal terminology, and making careful "discriminations" between concep- 
tions and terms that are constantly beinjr treated as if they were one and the 
same. See e.g., ihid., pp. vii, 183, 189-190, 278, 306, 351, 355, 390-393. How 



;^6 FITXDAMENTAL LEGAL CONCEPTIONS 

unfortunately rei^oet, all too often, corresponding pancity and con- 
fusion as regards actual legal conceptions. That this is so may appear 
in some measure from the discussion to follow. 

The strictly fundamental legal relations are, after all, s;ui generic; 
and thus it is that attempts at formal definition are always unsatis- 
factory, if not altogether useless. Accordingly, the most promising 
line of procedure seems to consist in exhibiting all of the various 
relations in a scheme of "opposites" and "correlatives," and then 
proceeding to exemplify their individual scope and application in 
concrete cases. An effort will be made to pursue this method : 

C right privilege power immunity 

) no-right duty disability liability 

Jural Correlatives ^"^^'* privilege power immunity 

/duty no-right liability disability 

Rights and Duties. As already intimated, the term "rights" tends 
to be used indiscriminately to cover what in a given case may be a 
privilege, a power, or an immunity, rather than a right in the strictest 
sense; and this looseness of usage is occasionally recognized by the 
authorities. As said by Mr. Justice Strong in People v. Dil-emanr^ 

"The word 'right' is defined by lexicographers to denote, among 
other things, property, interest, power, prerogative, immunity, privi- 
lege (Walker's Diet, word 'Right'). In law it is most frequently 

great the influence of those discriminations has been is well known to all students 
of the law of evidence. 

The comparatively recent remarks of Professor John Chipman Gray, in his 
Nature and Sources of the Law (1909), Pref. p. viii, are also to the point: 

' ' The student of Jurisprudence is at time^ troubled by the thought that he is 
dealing not with things, but with words, that he is busy with the shape and size 
of counters in a game of logomachy, but when he fully realizes how these words 
have been passed and are still being passed as money, not only by fools and on 
fools, but by and on some of the acutest minds, he feels that there is work worthy 
of being done, if only it can be done worthily. ' ' 

No less significant and suggestive is the recent and characteristic utterance of 
one of the greatest jurists of our time, Mr. Justice Holmes. In Hyde v. United 
States (1911), 225 U. S., 347, 391, the learned judge very aptly remarked: "It is 
one of the misfortunes of the law that ideas become encysted in phrases and there- 
after for a long time cease to provoke further analysis. ' ' 

See also Field, J., in Morgan v. Louisiana (1876), 93 U. S., 217, 223, and Peck- 
ham, J., in Phoenix Ins. Co. v. Tennessee (1895), 161 U. S., 174, 177, 178. 

["Every student of logic knows, but seldom realizes, the power and the actual 
historic influence of terms in moulding thought and in affecting the result of 
controversy." Professor John Henry Wigmore, in (1914) 28 Harvard Law Review, 
1. See also Beck, J., in Citif of Buhuque v. III. Central E. B. Co. (1874), 39 la., 
56, 64.] 

26 (1852) 7 How. Pr., 124, 130. 



AS AI'PLIED IN .ITDICIAL REASONING 37 

applied to property in its restricted sense, but it is ol'teii ust-d to desig- 
nate power, prerogative, and privilege, ..." 

Recognition of this anihiguity is also found in the language of ]\rr. 
Justice Jackson, in United States v. Patrick:'-' 

"The words 'right' or 'privilege' have, of course, a variety of 
meanings, according to the conneetion oi- context in which they are 
u^S(J? Their definition, as given by standard lexicograpln'i-s. inelude 
'that which one has a legal claim to >lii,' 'hgal poiar,' 'axfhority.' 
'immunity granted by authority.' 'the investiture with special or 
peculiar rights. ' ' ' 

And, similarly, in the language of ^Ir. Justice Sneed. in Lonaa r. 

Stater' 

'"The state, then, is forbidden from making and enforcing an\' law 
which shall abridge the privileges and immunities of citizens of the 
United States. It is said that the words rights, privilege s and immuni- 
ties, are abusively used, as if they were synonymous. The word rights 
is generic, common, embracing whatever may be lawfully claimed."-* 

It is interesting to observe, also, that a tendency toward discrimina- 
tion may be found in a nund)er of important constitutional and 
statutory provisions. Just how accurate the distinctions in the mind 
of the draftsman may have been it is, of course, impossil)le to say.""' 

27 (1893) 54 Fed. Rep., 338, 34S. 

2S (1871) 3 Heisk. (Tenn.), 2S7. 306-307. 

20 See also, for similar jndic^ial observations. Atchifon cf Neb. B. Co. r. Baty 
(1877), 6 Neb., 37, 40 ("The term rifiht in civil society is defined to mean that 
which a man is entitled to have, or /o do. or to receive from others within the limits 
prescribed by law.") ; San Franci.seo v. S. V. Water Co. (1874), 48 Cal.. r)31 ("We 
are to ascertain the rights, privilei/es, power.'i, duties and ohUiiatioiis of the Spring 
Valley Water Co., by reference to the general law.") [Sh^nr v. Profit (1910), 57 
Or., 192, 201 ; 109 Pac, 584, 587, per Slater, J. : " The word ' right ' denotes, among 
other things, 'property,' 'interest,' 'power,' 'prerogative,' 'immunity,' and 'privi- 
lege,' and in law is most frequently applied to i)roperty in its restricted sense. "J 

Compare also Gilbert, Evi-denee (4th ed.. 1777), 126: "The men of one county, 
city, hundred, town, corporation, or parish are evidence in relation to the riijhts. 
privileges, immunities and affairs of such town, city, etc. "■' 

30 See Reams v. Cordirainers' Co. (1S;19). 6 C. B. N. S.. 388, 409 (construing 
The Thames Conservancy Act, 1857, 20 and 21 Vict. c. cxlvii., .s. 179: "None of the 
powers by this act conferred . . . shall extend to, take away, alter or abridge any 
right, claim, privilege, franchise, exemption, or immunity to which any owTiers . . . 
of any lands . . . are now by law entitled."); Fearon v. Mitchrll (1S72), L. R. 
7 Q. B., 690, 695 ("The other question remains to be dispo.sed of, as to whether the 
ease comes within the proviso of s. .lO of 21 and 22 Vict. c. 98. that 'no market shall 
be established in pursuance of this section so as to interfere with any rights, 
powers, or privileges enjoyed within the district by any jierson without his con- 
sent.'"); Cal. Civ. Code. sec. 64"^a: "Building and loan associations may be 
formed under this title with or without guarantee or other capital stock, with all 



38 FUNDAMENTAL LEGAL CONCEPTIONS 

Recognizing, as we must, the very broad and indiscriminate use of 
the term "right," what clue do we find, in ordinary legal discourse, 
toward limiting the w^ord in question to a definite and appropriate 
meaning ? That clue lies in the correlative ' ' duty, ' ' for it is certain 
that even those who use the word and the conception "right" in the 
broadest possible way are accustomed to thinking of "duty" as the 
invariable correlative. As said in Lake Shore & M. S. R. Co. v. 
Kurtz :^^ 

"A duty or a legal obligation is that which one ought or ought 
not to do. 'Duty' and 'right' are correlative terms. When a right 
is invaded, a duty is violated. ' '^- 

In other words, if X has a right against Y that he shall stay off 
tlie former's land, the correlative (and equivalent) is that Y is under 
a duty toward X to stay off the place. If, as seems desirable, we should 
seek a synonym for the term "right" in this limited and proper 
meaning, perhaps the word ' ' claim ' ' would prove the best. The latter 
has the advantage of being a monosyllable.^-* In this connection, the 
language of Lord Watson in Studd v. Cook^^ is instructive : 

"Any w^ords which in a settlement of moveables would be recog- 
nized by the law of Scotland as sufficient to create a right or claim in 
favor of an executor . . , must receive effect if used with reference 
to lands in Scotland." 

Privileges and ^'No-Rights." As indicated in the above scheme of 
jural relations, a privilege is the opposite of a duty, and the correlative 

the rights, powers, and privileges, and subject to all the restrictions and liabilities 
set forth in this title."); Tenn. Const, of 1834, Art. 9, sec. 7: "The legislature 
shall have no power to pass any law granting to any individual or individuals, 
rights, privileges and immunities or exemptions, other than . . ."). [See also 
State V. Conlon (1895), 65 Conn., 478, 490, 491.] 

31 (1894) 10 Ind. App., 60; 37 N. E., 303, 304. 

32 See also Eoivleij Parle Coal, etc., Co. v. L. 4- N. W. By. [1913] A. C, 11, 25, 
27 (per Viscount Haldane, L. C. : "There is an obligation (of lateral support) on 
the neighbor, and in that sense there is a correlative right on the part of the owner 
of the first piece of land ; ' ' per Lord Shaw : ' ' There is a reciprocal right to lateral 
support for their respective lands and a reciprocal obligation upon the part of 
each owner. . . . No diminution of the right on the one hand or of the obligation 
on the other can be effected except as the result of a plain contract. . . ."). 

Compare, to similar effect, Galveston, etc.. By. Co. v. Harrigan (1903), 76 S. W., 
452, 453 (Tex. Civ. App.). [See also Gray, Natttre and Sources of Law, sec. 25: 
"Eight is correlative to duty; where there is no duty there can be no right."] 

32aStayton, J., in MeUinger v. City of Houston (1887), 68 Tex., 45, 3 S. W., 
249, 253: "A right has been well defined to be a well-founded claim, and a well- 
founded claim means nothing more nor less than a claim recognized or secured by 
law. ' ' 

33 (1883) 8 App. Cas., at p. 597. 



AS APPLIED IX JUDICIAL REASOXINO 39 

of a "no-right." In the exaiui)l(' last put, whcn-as X lias a rif/ht or 
claim that Y, the other man, should stay off the land, he himself has 
the privilege of entering on the laud ; or, in e(iuivalent words, X does 
not have a duty to stay off. The privilege of entering is the negation 
of a duty to stay off. As indicated by this case, some caution is 
necessary at this point ; for, always, when it is said that a given 
privilege is the mere negation of a duty, what is meant, of course, is a 
duty having a content or tenor precisely opposite to that of the 
privilege in question. Thus, if, for some special rca.son, X has con- 
tracted with Y to go on the former's own land, it is obvious that X 
has, as regards Y, both the privilege of entering and the fluty of enter- 
ing. The privilege is perfectly consistent with this sort of duty, — 
for the latter is of the same content or tenor as the privilege; — but 
it still holds good that, as regards Y. X's privilege of entering is the 
precise negation of a duty to stay off. Similarly, if A has not con- 
tracted with B to perform certain work for the latter. A's privilege 
of not doing so is the very negation of a duty of doing so. Here 
again the duty contrasted is of a content or tenor exactly opposite to 
that of the privilege. 

Passing now to the question of "correlatives." it will l>e remem- 
bered, of course, that a duty is the invariable correlative of that legal 
relation which is most properly called a right or claim. That Ix'ing 
so, if further evidence be needed as to the fundamental and impor- 
tant difference between a right (or claim) and a privilege, surely it is 
found in the fact that the correlative of the latter relation is a "no- 
right," there being no single term available to express the latter con- 
ception. Thus, the correlative of X's right that Y shall not enter on 
the land is Y's duty not to enter; but the correlative of X's privilege 
of entering himself is manifestly Y's "no-right" that X shall not 
enter. 

In view of the considerations thus far emphasized, the importance 
of keeping the conception of a right (or claim) and the conception 
of a privilege quite distinct from each other seems evident ; and, 
more than that, it is equally clear that there should be a separate term 
to represent the latter relation. No doul)t. as already indicated, it is 
very common to use the term "right" indiscriminately, even when 
the relation designated is really that of privilege \^* and only too often 

34 For merely a few out of mimberlcss .iiuiicial instances of this loose usage, 
see Pearce v. Scotcher (1882), L. R. 9 Q. B.. ]r>2. 167; Quinn v. Lcathfm [1901] 
A. C, 495 (passim); JUen v. Flood [1898] A. C, 1 (passim) ; LindU-tj v. Sat. 
Carbonic Acid Gas Co. (1910), 220 U. S., 61, 75; Smith v. Cornell Univ. (1894), 
45 N. Y. Supp., 640, 643; Fannnn v. Kcn\ Valley Bk. (1910), 107 Pac, 568. [For 



40 FUNDAMENTAL LEGAL CONCEPTIONS 

this identity of terms has involved for the particular speaker or writer 
a confusion or blurring of ideas. Good instances of this may be 
found even in unexpected places. Thus Professor Holland, in his 
Avork on Jurisprudence, referring to a different and well-known sort 
of ambiguity inherent in the Latin "I us," the German "Recht," the 
Italian "Diritto," and the French "Droit," — terms used to express 
"not only 'a right,' but also 'Law' in the abstract," — very aptly 
observes : 

"If the expression of widely different ideas by one and the same 
term resulted only in the necessity for . . . clumsy paraphrases, or 
obviously inaccurate paraphrases, no great harm would be done; but 
unfortunately the identity of terms seems irresistibly to suggest an 
identity between the ideas expressed by them."^^ 

Curiously enough, however, in the very chapter where this appears, 
— the chapter on ' ' Rights, ' ' — the notions of right, privilege and power 
seem to be blended, and that, too, although the learned author states 
that "the correlative of . . . legal right is legal duty," and that 
"these pairs of terms express ... in each case the same state of 
facts viewed from opposite sides." While the whole chapter must be 
read in order to appreciate the seriousness of this lack of discrimina- 
tion, a single passage must suffice by way of example : 

" If . . . the power of the State will protect him in so carrying out 
his wishes, and will compel such acts or forbearances on the part of 
other people as may be necessary in order that his wishes may be so 
carried out, then he has a 'legal right' so to carry out his wishes."'^ 

The first part of this passage suggests privileges, the middle part 
rights (or claims), and the last part privileges.^*"^ 

Similar difficulties seem to exist in Professor Gray's able and enter- 
taining work on The Nature and Sources of Law. In his chapter on 
"Legal Rights and Duties" the distinguished author takes the position 
that a right always has a duty as its correlative;^^ and he seems to 

a striking instance of this blurring of ideas, see Avery, J., in State v. Austin 
(1894), 114 N. C, 855, 862: "An individual right is that which a person is entitled 
to have or receive from others, or to do under the protection of law." See also 
Channel, J., in Starey v. Graham [1899] 1 Q. B., 406, 411.] See also vost, n. 38. 
s^ Elements of Jurisprudence (10th ed.), 83. 

36 md., 82. 

36aCompare also Holland, Jurisprudence (10th ed.), 139: "The owner of a 
garden has a right to its exclusive enjoyment available against no individual more 
than another, but against everybody"; also (page 163): "Eights to personal 
safety and freedom, . . . limited ... by the right of parents and guardian^ to 
chastise and keep in custody persons of tender age." The confusion continues 
throughout the discussion. See pp. 185, 200, 316, and n. 30, page 200. 

37 See Nature and Sources of Law (1909), sees. 25, 45, 184. 



AS Al'I'LIKI) IN .iriUCIAL REAS(>NlNr, 41 

define the former ftliition sul)st;iiiti;illy accordiii^r I" tlie iiiori- limited 
meaning of "claim." Lef;al privilej^es. powers, and immunities are 
prima fac'u ignored, and the impression conveyed that all legal nda- 
tions can be comprehended under the conceptions "right" and 
"duty." But, with the greatest hesitation and deference, the sug- 
gestion may be ventured that a nund)er of his examples seem to show 
the inade(iuacy of such mode of treatment. Thus, e.g., he says : 

"The eating of shrimp salad is an interest of mine, and. if I can 
pay for it, the law will protect that interest, and it is therefore a 
right of mine to eat shrimp salad which I have paid for, although I 
know that shrimp salad always gives me the colic."-"* 

This passage seems to suggest primarily two classes of relations: 
frst, the party's respective privileges, as against A, H, (\ 1) an<l others 
in relation to eating the salad, or, correlatively, the res[)ective "no- 
rights" of A, B, C, I) and others that the party should not eat the 
salad; second, the party's respective rights (or claims) as against 
A, B, C, 1) and others that they should not interfere with the physical 
act of eating the salad, or, correlatively, the respective duties of A, B, 
C, D and others that they should not interfere. 

These two groups of relations seem perfectly distinct ; and the 
privileges could, in a given case, exist even though the rights men- 
tioned did not. A, B, C and D. being the owners of the salad, might 
say to X: "Eat the salad, if you can: you have our license to do so, 
hut we don't agree not to interfere with you." In such a ca.se the 
privileges exist, so that if X succeeds in eating the salad, he has 
violated no rights of any of the parties. But it is ecpially clear that 
if A had succeeded in holding so fast to the dish tiiat X couldn't eat 
the contents, no right of X would have been violated.^" 

3s Nature and Sources of Law (1909), sec. 48. 

smother instances in Professor Gray's work may be noteil. In sec. 5.'l he says: 
"So again, a householder has the right to eject by force a trespasser from his 
'castle.' That is, if sued by the trespasser for an assault, he can call upon the 
court to refuse the plaintiff its help. In other words, a man 's legal rights include 
not only the jtower effectually to call for aid from an organized society against 
another, but also the [lower to call offe<'tually upon the society to abstain fron> 
aiding others. " 

This, it is respectfully submitted, seems to confuse the householder's privilege 
of ejecting the trespasser (and the "no-right" of the latter) with a complex of 
potential rights, privileges, powers and iiiununities relating to the supposed action 
at law. 

In sec. 10:2 the sanie Icarnetl author says: "If there is an ordinance that the 
town constable may kill all dogs without collars, the constable may have a legiil 
right to kill such dogs, but the dogs are not under a legal duty to wear collars." 

It would seem, however, that what the ordinance did was to create a privilege — 



42 FUNDAMENTAL LEGAL CONCEPTIONS 

Perhaps the essential character and importance of the distinction 
can be showTi by a slight variation of the facts. Suppose that X, being 
already the legal owner of the salad, contracts with Y that he (X) 
will never eat this particular food. With A, B, C, D and others no 
such contract has been made. One of the relations now existing 
between X and Y is, as a consequence, fundamentally different from 
the relation between X and A. As regards Y, X has no privilege of 
eating the salad ; but as regards either A or any of the others, X has 
such a privilege. It is to be observed incidentally that X's right that 
Y should not eat the food persists even though X's own privilege of 
doing so has been extinguished.*" 

On grounds already emphasized, it would seem that the line of 
reasoning pursued by Lord Lindley in the great case of Quinn v. 
Leathem^'^ is deserving of comment : 

"The plaintiff had the ordinary rights of the British subject. He 
was at liberty to earn his living in his own w^ay, provided he did not 
violate some special law prohibiting him from so doing, and provided 
he did not infringe the rights of other people. This liberty involved 
the liberty to deal with other persons who were willing to deal with 
him. This liberty is a right recognized by law; its correlative is the 
general duty of every one not to prevent the free exercise of this 
liberty except so far as his own liberty of action may justify him in 
so doing. But a person's liberty or right to deal with others is nuga- 
tory unless they are at liberty to deal with him if they choose to do so. 
Any interference with their liberty to deal with him affects him." 

A "liberty" considered as a legal relation (or "right" in the loose 
and generic sense of that term) must mean, if it have any definite 
content at all, precisely the same thing as privilege;*^ and certainly 

the absence of the duty not to kill which otherwise would have existed in favor of 
the owner of the dog. Moreover, that appears to be the most natural connotation 
of the passage. The latter doesn't, except very remotely, call up the idea of the 
constable 's accompanying rights against all others that they shouldn 't interfere 
with his actual killing of the dog. 

See also sees. 145, 186. 

[Compare the following passage from Holmes, The Common Laiv, 214: "A 
legal right is nothing but a permission to exercise certain natural powers, and upon 
certain conditions to obtain protection, restitution, or compensation by the aid of 
the public force."] 

40 It may be noted incidentally that a statute depriving a party of privileges as 
such may raise serious constitutional questions under the Fourteenth Amendment. 
Compare, e.g., Lindley v. Nat. Carbonic Gas Co. (1910), 220 U. S., 61. [See also 
Bideout v. Knox (1889), 148 Mass., 368 (holding constitutional a statute limiting 
a landowner's privilege of erecting "spite-fences").] 

41 [1901] A. C, 495, 534. 

42 See post, pp. 44-50. 



AS AI'I'LIKI) IN .iri)l(IAL IJKASi )NI NC 43 

that is the fair coiinotatinii of tlif tcnii as used tin- lirsl three times 
in the passage quoted. It is ciually ele;ir. as iili-eiidy iiidicated. that 
such a privilege or liberty to deal with others at will inight very eon- 
ceivably exist without any peeuliar eoneoniitaiit rights against "third 
parties" as regards certain kinds of interference.*' ^Vhether there 
should be such concomitant rights (or elaims) is ultimately a (jues- 
tion of justice and policy; and it should be considered, as such, on its 
merits. The only correlative logically implied by the privileges or 
liberties in question are the "no-rights" of '•third parties." It would 
therefore be a non sequifur to conclude from the mere existenee of 
such liberties that "third parties" an- umler a '/(//// not to interfere, 
etc. Yet in the middle of the above i)assage from Lord Lindley's 
opinion there is a sudden and <|uestion-begging shift in the use of 
terms. First, tlie "liberty" in question is transnnited into a "right"; 
and then, possibly under the seductive influence of the latter word, 
it is assumed that the "correlative" nuist be "the general duty of 
every one not to prevent," etc.*'"' 

Another interesting and instructive example may be taken from 
Lord Bowen's oft-cjuoted opinion in Mfxjul Sf(<nuship Cn. v. 
McGregor.'^* 

"We are presented in this case with an apparent conflict or antin- 
omy between two rights that are ecpially regarded by the law — the 
right of the plaintiffs to be protected in the legitimate exercise of 
their trade, and the right of the defendants to carry on their business 
as seems best to them, provided they commit no wrong to others."*" 

As the learned judge states, the conflict or antinomy is only appar- 
ent; ])ut this fact seems to be obscured by the very indefinite and 
rapidly shifting meanings with which the term "i-iglit" is used in 
the above quoted language. Construing the passage as a whole, it 
seems plain enough that by "the right of the plaintiffs" in relation 
to the defendants a legal right or claim in the strict sense nnist be 
meant; whereas by "the right of the defendants" in relation to the 
plaintiffs a legal privilege must be intended. That being so. the "two 
rights" mentioned in the beginning of the passage, being respectively 
claim and privilege, could not be in conflict with each other. To the 
extent that the defendants have privileges the plaintiffs have no 
rights; and, conversely, to the extent that the plaintiffs have rights 

"Compare Allen v. Flood [1898] A. C, 1. 

43a For a more accurate treatment of the conception of "liberty" and "right," 
see the discussion by Cave, .T., quoted infra, jip. -JT^H. 

^4 (18S9) 23 Q. B. P.. T)!!. 

^■'a Compare the similar (inaccurate) use of the exjirossion. "ponfltctinR righta," 
by Holmes, .1., in Bo.ston Ferrule Co. v. llUh (18M), 159 Maw., 147, 149-1.50, 



44 FUNDAMENTAL LEGAL CONCEPTIONS 

the defendants have no privileges ("no-privilege" equals dnty of 
opposite tenor). •'^ 

Thus far it has been assumed that the term "privilege" is the most 
appropriate and satisfactory to designate the mere negation of duty. 
Is there good warrant for this? 

In Mackeldey 's Roman Law^*^ it is said : 

"Positive laws either contain general principles embodied in the 
rules of law ... or for especial reasons they establish something that 
differs from those general principles. In the first case they contain 
a common law {jus commune), in the second a special law {jus singu- 
lare s. exorhitans). The latter is either favorable or unfavorable . . . 
according as it enlarges or restricts, in opposition to the common rule, 
the rights of those for whom it is established. The favorable special 
law {jus singulare) as also the right created by it . . . in the Roman 
law is termed benefit of the law {heneficium juris) or privilege {privi- 
legium) . . . "" 

First a special law, and then by association of ideas, a special ad- 
vantage conferred by such a law. With such antecedents, it is not 
surprising that the English word "privilege" is not infrequently 
used, even at the present time, in the sense of a special or peculiar 
legal advantage (whether right, privilege, power or immunity) belong- 

45 Cases almost without number might be cited to exemplify similar blending 
of fundamental conceptions and rapid shifting in the use of terms; — and that, 
too, even when the problems involved have been such as to invite close and care- 
ful reasoning. For a few important cases of this character, see Allen v. Flood 
[1898] A. C, 1 (Hawkins, J., p. 16: "I know it may be asked, 'What is the 
legal right of the plaintiffs which is said to have been invaded?' My answer is, 
that right which should never be lost sight of, and which I have already stated — 
the right freely to pursue their lawful calling;" Lord Halsbury, p. 84: "To dig 
into one's own land under the circumstances stated requires no cause or excuse. 
He may act from mere caprice, but his right on his own land is absolute, so long 
as he does not interfere with the rights of others;" Lord Ashbourne, p. 112: 
"The plaintiffs had, in my opinion, a clear right to pursue their lawful calling. 
... It would be, I think, an unsatisfactory state of the law that allowed the wilful 
invader of such a right without lawful leave or justification to escape from the 
consequences of his action."); Quinn v. Leathern [1901] A. C, 495, 533: Lindsley 
V. Natural Carbonic Gas Co. (1910), 220 U. S., 61, 74; Boberson v. Bochester 
Folding Box Co. (1902), 171 N. Y., 538 (Parker, C. J., p. 544: "The so-called 
right of privacy is, as the phrase suggests, founded upon the claim that a man has 
the right to pass through this world, if he wills, without having his picture pub- 
lished.") ; Wabash, St. L. 4~ P. B. Co. v. ShacMet (1883), 105 111., 364, 389. [In 
his opinion in Attorney General v. Adelaide Steamship Co. [1913] A. C, 781, 
793, Lord Parker of Waddington is guilty of the fallacy of supposing that duty 
is the correlative of privilege. He says: "At common law every member of the 
community is entitled to carry on any trade or business as he chooses and in such 
manner as he thinks most desirable in his own interests, and inasmuch as every 
right connotes an obligation no one can lawfully interfere with another in the 



AS APPLIED IX JUDICIAL REASOXIXG 45 

ing either to some individual or to some particular class of persons.*' 
There are, indeed, a nuniher of judicial opinions recognizing this as 
one of the meanings of the term in «|U('Stion.'^'-' That the word has a 
wider signification even in ordinary non-technical usage is sufficiently 
indicated, however, by the fact that the term "special privileges" is 
so often used to indicate a contrast to ordinai-y or general privileges. 
jMore than this, the dominant specific connotation of the term as u.sed 
in popular speech seems to be mere negation of duty. This is manifest 
in tlie terse and oft-repeated expression, ''That is your privilege," — 
meaning, of course, "You are under no duty to do otherwi.se." 

Such being the case, it is not surprising to find, from a wide survey 
of judicial precedents, that the dominant technical meaning of the 
term is, similarly, negation of legal dnt}i.'" Tliere .-ire two very 



free exercise of his trade or Inisiness unless there ex!.«t smiie just cause or excuse 
for such interference."] 

In Furdy v. Staie (1901), 4.3 Fla., 5.3s, 540, the anomalous expression "right 
of privilege" is employed. 

« (Dropsie Tr.) sees. 196-197. 

••'The same matter is put somewhat less clearly in Sohm 's Itistitutcs (Ledlie's 
Tr., 3d ed.), 28. 

See also Hector, etc., of Christ Church v. Philadelphia (1860), 24 TIow.. 300, 
301, 302. 

48 According to an older usage, the term "privilege" was frequently employed 
to indicate a "franchise," the latter being really a miscellaneous complex of 
special rights, privileges, powers, or immunities, etc. Thus, in an early book, 
Termes de la Lei/, there is the following definition: " 'Privileges' are liberties 
and franchises granted to an office, place, towne, or manor by the King's great 
charter, letters patent, or Act of Parliament, as toll, sake, socke, infangstheefe, 
outfangstheefe, turne, or delfe, and divers such like. ' ' 

Compare Blades v. Higgs (1865), 11 H. L. Cas., 621, 631, per Lord Westbury: 
"Property ratione privilegii is the right which by a peculiar franchise anciently 
granted by the Crown, by virtue of prerogative, one may have of talking animals 
ferae naturae on the land of another; and in like manner the game when taken 
by virtue of the privilege liecomes the al»solute i)roperty of the owner of the 
franchise. ' ' 

49 See Humphren v. Pegues (1872), 16 Wall., 244, 247. per Hunt. .T.: "All the 
'privileges' as well as powers and rights of the prior <'ompany were granted to the 
latter. A more important or more comprehensive privilege than a per|>etual 
immunity from taxation can scarcely be imagined. It contains the e».''ential idea 
of a peculiar benefit or advantage, of a special exemption from a burden falling 
upon others. ' ' 

See also Smith v. Floyd (1893), 140 N. Y.. 3.*'.7. 342; Lonas v. State (1871). 
3 Heisk., 287, 306, 307; Territory v. Stohcx (1S81), 2 X. M.. 161. 169. 170; Ripley 
V. Knight (1878), 123 Mass., 515, 519; Dike v. State (1888), 38 Minn., 366; Re 
Miller [1893] 1 Q. B., 327. 

Compare WtJieiier v. Burrell (1911), 28 Okla., 546. 

50 Compare Louisville rf- N. E. Co. v. Gaines (1880), 3 Fed, Rep., 266. 278, per 



46 FUNDAMENTAL LEGAL CONCEPTIONS 

common examples of this, relating respectively to "privileged com- 
munications" in the laAv of libel and to "privileges against self- 
crimination" in the law of evidence. As regards the first case, it is 
elementary that if a certain gronp of operative facts are present, a 
privilege exists which, without such facts, would not be recognized.^^ 
It is, of course, equally clear that even though all such facts be present 
as last supposed, the superadded fact of malice will, in cases of so- 
called "conditional privilege," negative the privilege that otherwise 
would exist. It must be evident also, that whenever the privilege 
does exist, it is not special in the sense of arising from a special law, 
or of being conferred as a special favor on a particular individual. 
The same privilege would exist, by virtue of general rules, for any 
person whatever under similar circumstances. So. also, in the laAv of 
evidence, the privilege against self-crimination signifies the mere nega- 
tion of a duty to testify, — a duty which rests upon a witness in rela- 
tion to all ordinary matters ; and, quite obviously, such privilege arises, 
if at all, only by virtue of general laws.^- 

As already intimated, while both the conception and the term 
"privilege" find conspicuous exemplification under the law of libel 
and the law of evidence, they nevertheless have a much wider signifi- 
cance and utility as a matter of judicial usage. To make this clear, 
a few miscellaneous judicial precedents will now be noticed. In Dow- 
man's Case,^^ decided in the year 1583, and reported by Coke, the 
court applied the term to the subject of waste : 

"And as to the objection which was made, that the said privilege 
to be without impeachment of waste can not be ^\^thout deed, etc. To 
that it was answered and resolved, that if it was admitted that a deed 

Baxter, Asso. J.: "Paschal says (the term privilege) is a special right belonging 
to an individual or class; properly, an exemption from some duty." 

51 For apt use of terms ' ' privilege ' ' and ' ' privileged ' ' in relation to libel, see 
Hawkins, J., in Allen v. Flood [1898] A. C, 1, 20-21. 

52 As regards the general duty to testify, specific performance may usually be 
had under duress of potential or actual contempt proceedings; and, apart from 
that, failure to testify might subject the wrongdoer either to a statutory liability 
for a penalty in favor of the injured party litigant or, in case of actual damage, 
to a common-law action on the case. ) 

The subject of witnesses is usually thought of as a branch of the so-called 
adjective law, as distinguished from the so-called i^uistantive law. But, as the 
writer has had occasion to emphasize on another occasion {The Eelations 'between 
Equity and Law, 11 Michigan Law Keview, 537, 5.54, 556, 569), there seems to be 
no intrinsic or essential difference between those jural relations that relate to the 
* ' substantive ' ' law and those that relate to the ' ' adjective ' ' law. This matter 
will be considered more fully in a later part of the discussion. 

53 (1583) 9 Coke, 1. 



AS APPLIED IX JUDICIAL REASONING 47 

in such case should be rerjuisite, yet without (juestiou all the estates 
limited would be good, although it is admitted, that the clause con- 
cerning the said privilege would be void." 

In the great case of AU<:n v. Flood'"* the o{)inion of Mr. Justice 
Hawkins furnishes a useful passage for the purpose now in view : 

"Every pei'son has a privilege ... in the interests of publie justiee 
to put the eriminal law in motion against another whom he bona fuh , 
and upon reasonable and probable cause, believes to have l)een guilty 
of a crime. ... It must not, however, be supposed that luitred and 
ill-will existing in the mind of a prosecutor nuist of necessity destroy 
the privilege, for it is not impossible that such hatred and ill-will may 
have very natural and pardonable reasons for existing. ..." 

Applying the term in relation to the subject of property, Mr. Justice 
Foster, of the Supreme Court of Elaine, said in the case of Vulitztr v. 
Livingston :^^ 

"It is contrary to the policy of the law that there should be any 
outstanding titles, estates, or powers, l)y the existence, operation or 
exercise of which, at a period of time beyond lives in being and 
twenty-one years and a fraction thereafter, the complete and un- 
fettered enjoyment of an estate, with all the rights, privileges and 
powers incident to ownership, should be qualified or impeded." 

As a final example in the present connection, the language of Baron 
Alderson in Hilton v. Eckerlci/''^ may be noticed : 

"Prima facie it is the privilege of a trader in a free country, in all 
matters not contrary to law, to regulate his own mode of carrying 
them on according to his discretion and choice."'' 

The closest synonym of legal "privilege" seems to be legal "liberty" 
or legal " freedom. "^'^ This is sufficiently indicated by an unu.sually 
discriminating and instructive passage in i\Ir. Justice Cave's opinion 
in Allen v. Floodr'^ 



54 [1898] A. C. 1, 19. 

55 (1896) 89 Me., 359. 

56 (1856) 6 E. & B., 47, 74. 

57 For other examples of apt use of the t^rm in question, see Borland r. Bonton 
(1882), 132 Mass., 89 ("municipal rights, privileges, powers or duties") ; Ilamil- 
ton V. Graham (1871), L. R. 2 H. L. (So.), 167, 169, per Hatherley. L. C; Jonrs 
V. Be Moss (1911), 151 la., 112, 117; Kripp v. Curtis (1SS6), 71 Cal.. 62. 63; 
Lamar v. Booth (1874), .50 Miss., 411, 413; Wellrr v. Browu (1911). 160 Cal., 
515; 117 Pac, 517; ^r^theu■s v. Fcopir (1903). 202 Til.. 389. 401; Ahintjton v. 
North Bridgewater (1840), 23 Pick.. 170. \nuvtlrn r. Gnskrll [1906] A. C, 56. 
57 ("rights, privileges and immunities") ; Aikcits v. Wi.sconsin (.1904). 195 T'. S.. 
194, 206 (Holmes, J.: "No conduct has such an absolute privilege as to justify all 
possible schemes of which it may be a part").] 

57a Compare the expression: "Freedom of speech." 

58 [1898] A. C, 1, 29. 



48 FUNDAMENTAL LEGAL CONCEPTIONS 

"The personal rights with which we are most familiar are : 1. Rights 
of reputation; 2. Rights of bodily safety and freedom; 3. Rights of 
property; or, in other words, rights relating to mind, body and 
estate, . . . 

' ' In my subsequent remarks the word ' right ' will, as far as possible, 
always be used in the above sense; and it is the more necessary to 
insist on this as during the argument at your Lordship's bar it was 
frequently used in a much wider and more indefinite sense. Thus it 
was said that a man has a perfect right to fire off a gun, when all that 
was meant, apparently, was that a man has a freedom or liberty to 
fire off a gun, so long as he does not violate or infringe any one 's rights 
in doing so, which is a very different thing from a right, the violation 
or disturbance of which can be remedied or prevented by legal 
process. ' '^^ 

While there are numerous other instances of the apt use of the 
term ''liberty," both in judicial opinions*'^ and in conveyancing docu- 

59 For the reference to Mr, Justice Cave 's opinion, the present writer is indebted 
to Salmond's work on Jurisprudence. Citing this case and one other, Starey v. 
Graham [1889] 1 Q. B., 406, 411, the learned author adopts and uses exclusively 
the term ' ' liberty ' ' to indicate the opposite of ' ' duty, ' ' and apparently overlooks 
the importance of privilege in the present connection. Curiously enough, more- 
over, in his separate Treatise on Torts, his discussion of the law of defamation 
gives no explicit intimation that privilege in relation to that subject represents 
merely liberty, or "no-duty." 

Sir Frederick Pollock, in his volume on Jurisprudence (2d ed., 1904), 62, seems 
in effect to deny that legal liberty represents any true legal relation as such. Thus, 
he says, inter alia: ' ' The act may be right in the popular and rudimentary sense of 
not being forbidden, but freedom has not the character of legal right until we 
consider the risk of unauthorized interference. It is the duty of all of us not to 
interfere with our neighbors' lawful freedom. This brings the so-called primitive 
rights into the sphere of legal rule and protection. Sometimes it is thought tlmt 
lawful pouter or liierty is different from the right not to he interfered with; hut 
for the reason just given this opinion, though plaxisible, does not seem correct." 
Compare also Pollock, Essays in Jurisprudence and Ethics (1882), ch. I. 

It is difiicult to see, however, why, as between X and Y, the "privilege + no- 
right" situation is not just as real a jural relation as the precisely opposite "duty 
+ right" relation between any two parties. Perhaps the habit of recognizing 
exclusively the latter as a jural relation springs more or less from the traditional 
tendency to think of the law as consisting of "commands," or imperative rules. 
This, however, seems fallacious. A rule of law that permits is just as real as a 
rule of law that forbids; and, similarly, saying that the law permits a given act 
to X as between himself and Y predicates just as genuine a legal relation as saying 
that the law forbids a certain act to X as between himself and Y. That this is 
so seems, in some measure, to be confirmed by the fact that the first sort of act 
would ordinarily be pronounced ' ' lawful, ' ' and the second * ' iinlawf ul. ' ' Compare 
Thomas v. Sorrel (1673), Vaughan, 331, 351, quoted post, note 63. 

^0 Compare Dotv v. Newborough (1728), Comyns, 242 ("For the use is only a 
liberty to take the profits, but two cannot severally take the profits of the same 
land, therefore there cannot be an use upon a use. ' ' It should be observed that in 



AS APPLIED IN JUDICIAL REA^OMNG 49 

ments,''^ it is by no means so common or detinito a word as "privilege." 
The former term is far more likely to be used in tlu- sense of physical 
or personal freedom (i.e., absence of piiysical restraint ), as dis- 
tinguished from a legal relation; and very frciiuently tlicre is the 
connotation of general political liberty, as distinguislwd Irom a jiar- 
ticular relation between two detinite individuals. Hesiiles all this, 
the term "privilege" has the advantage of giving us, as a variable, 
the adjective "privileged." Thus, it is fre(|uently convenient to 
speak of a privileged act, a privileged transaction, a jn-ivileged 
conveyance, etc. 

The term "license," sometimes used as if it wtn- .syiiouynious with 
"privilege," is not strictly appropriate. This is simply another of 

this and the next case to be cited, alon;,^ with the lil)erty or privilege there are 
associated powers and rights, etc.: for instance, the poircr to acquire a title to the 
things severed from the realty); Bourne v. Taiilor (1808), 10 East, 189 (hlllen- 
borough, C. J.: "The second question is whether the replication ought to have 
traversed the liberty of working the mines. . . . The word liberty, too, implies 
the same thing. It imports, ex vi termini, that it is a privilege to be exercised 
over another man's estates") ; JVickham v. Ilatvkes (1840), 7 M. & W., 63, 78-79; 
Quinn v. Leathern [1901] A. C, 495, 534 (per Lord Lindley) ; rollock v. Fanners' 
Loan 4- Trust Co. (1895), 157 U. S., 429, 652 (per White, J.: "rights and liber- 
ties") ; Mathews v. People (1903), 202 111., 389, 401 (Magruder, C. J.: "It is now 
well settled that the privilege of contracting is l<oth a liberty, and a ]>roperty 
right"). [Ferris v. Frohmnn (1911), 223 U. S., 424, 432 (Hughes, J.: "Gave to 
authors the sole liberty of printing their books"); AlUjciicr v. Louuiiana (1^97), 
165 U. S., 578, 592 (Peckham, J.: "must have the liberty to do that act . . ."); 
Ail-ens v. Wisconsin (1904), 195 U. S., 194, 205 (Holmes, J.: "It would be impos- 
sible to hold that the liberty to combine to inflict such nii.s<'hicf . . . was among 
the rights which the Fourteenth Amendment was intended to preser%'e").] 

For legislative use of the term in question, see the Copyright Act, 8 Anne 
(1709) c. 19 ("Shall have the sole right and liberty of printing each book and 
books for the term of . . ."). 

Like the word "privilege" (see ante, i>. 45, n. 4S"). the form "lilicrty" is occa- 
sionally used, especially in the older books, to indicate a franchise, or complex of 
special rights, privileges, powers, or immunities. Thus in Xoy's ilnxinus (1641) 
there is this definition: "Liberty is a royal privilege in the hands of a subject;" 
and, similarly, Blackstone (2 Com. 37) says: "Franchise and liberty are used as 
synonymous terms; and their definition is, a royal privilege, or branch of the king's 
prerogative, subsisting in the hands of a subject." 

This definition is quoted in S. F. Watcrnprls v. ScJwttlcr (1882), 62 Cal.. 69, 
106, and Central F. 4- Banking Co. v. State (1875), 54 Ga., 401, 409. Compare 
also Bex v. Halifax 4' Co. [1891] 2 Q. B.. 263. 

ci Compare Frond v. Bates (1S65), 34 L. .1. (X. S.), 406 ("With full power and 
free liberty to sink for, win and work the same, with all liberties, privileges, etc., 
necessary and convenient," etc.); Hamilton v. Graham (1871'), L. R. 2 IT. L. (So.'). 
166, 167; Attersoll v. Stevens (1808), 1 Taunt., 183; Wivkham v. Hawker (1840), 
7 M. & W., 63, 78-79. 



50 FUNDAMENTAL LEGAL CONCEPTIONS 

ihose innumera])le cases in which the mental and physical facts are 
so frequently confused with the legal relation which they create.*^^^ 
Accurately used, "license" is a generic term to indicate a group of 
operative facts required to create a particular privilege, — this being 
especially evident when the word is used in the common phrase "leave 
and license. ' ' This point is brought out by a passage from Mr. Justice 
Adams's opinion in Clifford v. O'Neill:^- 

"A license is merely a permission to do an act which, witJiout such 
permission, would amount to a trespass . . ." nor will the continuous 
enjoyment of the privilege conferred, for any period of time cause it 
to ripen into a tangible interest in the land affected. ' '^'^ 

Powers and Liahilities. As indicated in the preliminary scheme of 
jural relations, a legal power (as distinguished, of course, from a 
mental or physical power) is the opposite of legal disability, and the 
correlative of legal liability. But what is the intrinsic nature of a 
legal power as such? Is it possible to analyze the conception repre- 
sented by this constantly employed and very important term of legal 
discourse? Too close an analysis might seem metaphysical rather 
than useful; so that what is here presented is intended only as an 
approximate explanation, sufficient for all practical purposes. 

A change in a given legal relation may result (1) from some super- 
added fact or group of facts not under the volitional control of a 
human being (or human beings) ; or (2) from some superadded fact 

61a See, for example, Lurton, J., in City of Owenshoro v. CumTjerland Telephone, 
etc., Co. (1913), 230 U. S., 58, 64; 33 Sup. Ct., 988, 990: "That the right con- 
ferred by the ordinance involved is something more than a mere license, is plain. 
A license has been generally defined as a mere personal privilege to do acts upon 
the land of the licensor of a temporary character, and revocable at the will of the 
latter unless, according to some authorities, in the meantime expenditures con- 
templated by the licensor when the license was given, have been made. ' ' 

62 (1896) 12 App. Div., 17; 42 N. Y. Sup., 607, 609. 

63 See, in accord, the oft-quoted passage from Thomas v. Sorrell (1673), 
Vaughan, 331, 351 ("A dispensation or license properly passes no interest, nor 
alters or transfers property in anything, but only makes an action lawful, which 
without it had been unlawful. As a license to go beyond the seas, to hunt in a 
man's park, to come into his house, are only actions, which without license, had 
been unlawful"). 

Compare also Taylor v. Waters (1817), 7 Taunt., 374, 384: "Those cases 
abundantly prove that a license to enjoy a beneficial privilege in land may be 
granted, and, notwithstanding the statute of frauds, without writing. ' ' In this 
case the license (operative facts) is more or less confused with privileges (the 
legal relation created) ; Heap v. Hartley (1889), 42 Ch. D,, 461, 470. 

[See also the essay on Faulty Analysis in Easement and License Cases, reprinted 
infra. — Ed. ] 



AS AITI.IKl) IX .HDK lAL HKASOXINO 51 

or group of facts which art' uikUt the volitional control of one or 
more human beings. As i-egai-ds the second class of cases, the person 
(or persons) whose volitional control is j»aramount may be said to 
have the (legal) power to effect the particular change of legal rela- 
tions that is involved in the i)rol)leiii. 

This second class of cases — powers in the teclniieal sense — nmsl now 
be further considered. The nearest synonym for any ordinary ca.se 
seems to be (legal) "aliility. "'' — the latter being o))viously the ojtpo- 
site of "inability," or "disability." The term ''right." so fretiuently 
and loosely used in the present connection, is an unfortunate term for 
the purpose, — a not unusual result being confusion of thought as well 
as ambiguity of expression.'"'^ The term "capacity" is equally un- 
fortunate; for, as we have already seen, when used with diserimina- 
tion, this word denotes a i)articular group of operative facts, and not 
a legal relation of any kind. 

Many examples of legal powers may readily be given. Thus. X. the 
owner of ordinary personal pi-opcrty "in a tangible object" has the 
power to extinguish his own legal interest (rights, jiowers, immunities, 
etc.) through that totality of opei-ative facts known as abandonment; 
and — simultaneously and correlatively — to ci-eate in othei- j)ersons 
privileges and })0wers relating to the abandoned object, — e.g.. the 
power to acquire title to the latter by appropi-iating it.*"' Siniilarhf, 
X has the power to transfer his interest to Y. — that is. to extinguish 
his own interest and concomitantly create in V a new and correspond- 
ing interest.*^' So also X has the power to create contractual obliira- 

64 Compare Eemington v. Parkins (1S73). in R. I., 5.50, 553, per Diirfee. J.: 
"A power is an ability to do." 

fis See People v. Dikcmo)) (1S52). 7 Howard I'r., 124, i;?0; and Lvnas v. State 
(1871), 3 Heisk. (Tenn.), 287, 306-307, quoted ante, p. 37. 

See also Mahrc v. Whitlakcr (1906), 10 Wash.. 6."i(). 6C.3 (Washington Laws of 
1871 provided in relation to eoniinunity property: "The husband shall have the 
management of all the common property, but shall nut liavo the rioht to sell or 
encumber real estate except he sliall be joined in the sale or encumbrance by the 
wife. ..." Per Scott, J. : " 'Right' in the sense used there means power"). 

Compare also St. Joseph Fire iV' Marine Ins. Co. v. flanck (1876). 63 Mo., 112, 
118. 

Numberless additional instances might bo given of the use of tlio term "right." 
where the legal quantity involved is really a junver rather than a right in the sense 
of claim. 

66 It is to be noted th:it abandonment woubl leave X himself with precisely 
the same sort of privileges and powers as any other person. 

67 Compare Wiinehamcr v. People (18.56). 13 N. Y., 378, 396 (Comstock. J.: 
"I can form no notion of property whith does not include the e.«!<ential character- 
istics and attributes with which it is clothed by the laws of society . . . among 
which are, fundamentally the right of the o'''upant or owner to use aud enjoy 



52 FUNDAMENTAL LEGAL CONCEPTIONS 

tions of various kinds. Agency cases are likewise instructive. By the 
use of some metapJioricnJ expression such as the Latin, qui facit per 
alium, facit per se, the true nature of agency relations is only too 
frequently obscured. The creation of an agency relation involves, 
inter alia, the grant of legal powers to the so-called agent, and the 
creation of correlative liabilities in the principal."^ That is to say, one 
party, P, has the power to create agency powers in another party. A, — 
for example, the power to convey P's property, the power to impose 
(so-called) contractual obligations on P, the power to discharge a 
debt owing to P, the power to "receive" title to property so that it 
shall vest in P, and so forth. Tn passing, it may be well to observe 
that the term "authority," so frequently used in agency cases, is very 
ambiguous and slippery in its connotation. Properly employed in the 
present connection, the word seems to be an abstract or qualitative 
term corresponding to the concrete "authorization," — the latter con- 
sisting of a particular group of operative facts taking place between 
the principal and the agent. All too often, however, the term in ques- 
tion is so used as to blend and confuse these operative facts with the 
powers and privileges thereby created in the agent.'^'* A careful dis- 

(the objects) exclusively, and his absolute power to sell and dispose of them"); 
Bartemeyer v. Iowa (3873), 18 Wall., 129, 137 (Field, J.: "The right of property 
in an article involves the power to sell and dispose of such article as well as to 
use and enjoy it"); Low v. Bees Printing Co. (1894;), 41 Neb., 127, 146 (Ryan, 
C. : "Property, in its broad sense, is not the physical thing which may be the sub- 
ject of ownership, but is the right of dominion, possession, and power of disposition 
which may be acquired over it"). 

Since the power of alienation is frequently one of the fundamental elements of 
a complex legal interest (or property aggregate), it is obvious that a statute 
extinguishing such power may, in a given case, be unconstitutional as depriving the 
owner of property without due process of law. See the cases just cited. 

C8 For a leading ease exhibiting the nature of agency powers, especially powers 
"coupled with an interest," see Kunt v. Rousmanier (1823), 8 Wheat., 173, 201. 

It is interesting to note that in the German Civil Code the provisions relating to 
agency are expressed in terms of powers, — e.g., sec. 168: "The expiration of the 
power is determined by the legal relations upon which the giving of the power is 
founded. The power is also revocable in the event of the continuance of the legal 
relation, unless something different results from the latter." 

Incidentally, it may be noticed also, that as a matter of English usage, the term 
"power of attorney" has, by association of ideas, come to be used to designate 
the mere operative instrument creating the powers of an agent. 

69 For examples of the loose and confusing emplojTuent of the term "authority" 
in agency cases, — and that too, in problems of the conflict of laws requiring the 
closest reasoning, — see Pope v. Niclcerson (1844), 3 Story, 465, 473, 476, 481, 483; 
Lloyd V. Guibert (1865), 6 B, & S., 100, 117; Kiiig v. Sarria (1877), 69 N. Y., 24, 
28, 30-32; Risdov, etc., Works v. Furness [1905] 1 K. B., 304; [1906] 1 K. B., 49. 

For a criticism of these cases in relation to the present matter, see the writer's 



AS APPLIED IX .UDICIAL REASOXINC. 53 

crimination in those partic-ulars would, it is suhinittod, go far toward 
clearing up certain i)rol)lriiis in tlic law of agency.'" 

Essentially similar to the ]>owers ol' agents are powers of appoint- 
ment in relation to propei'ty interests. So, too. the powers of puhlii* 
officers are, intrinsically con.sidered, comparable to tiiosc of agents. — 
for example, the power of a sheriff to sell property under a writ of 
execution. The power of a donoi-. in a gift rausa mortis, to revoke the 
gift and divest the title of the donee is another clear example of the 
legal quantities now being considered;"' also a pledgee's statutory 
power of sale.'- 

There are. on the other hand, cas.-s when' tin' true iiatun- of tiie 
relations involved has not, perhaps, been .so clearly recognized. Thus, 
in the case of a conditional sale of pei-sonalty, a.ssuming the vendee's 
agreement has l)een fully performed except as to the payment of the 
last instalment and the time for the latter has arrived, what is the 
interest of such vendee as regards the property? lias he. as so often 
assumed, merely a contractual rif/ht to have title passed to him by 
consent of the vendor, on final payment being made; or has he. irre- 
spective of the consent of the vendor the power to divest the title of 
the latter and to acquire a perfect title for himself? Though the 
language of the cases is not always so clear as it might be, the vendee 

article The Individual Liahilitij of Stockholders and the Conflict of Laws (1909), 
9 Columbia Law Review, 492, 512. n. 4t>. .j2]. ii. 71; 10 r'olumbia I*'iw Review, 
542-544, reprinted infra. 

"0 The clear understand ing and recognition of the agency relation ns involving 
the creation of legal powers may be of crucial importance in many ca.ses. — espe- 
cially, as already intimated, in regard to prol)lems in the conflict of laws. Besides 
the cases in the preceding note, two others may be referred to. Milliken v. Pratt 
(1878), 125 Mass., 374, presenting no analysis of the agency problem; and, on the 
other hand. Freeman's Appeal (1897). 68 Conn., 533, involving a careful analj-sis 
of the agency relation by Baldwin, .1. Led by this analysis to reach a decision 
essentially opposite to that of the Massachusetts case, the learned .iudge said, 
iiiter alia : 

''Such was, in effect, the act by which Mrs. Mitchell undertook to do what she 
had no legal capacity to do, by making her husband her agent to deliver the 
guaranty to the bank. He had no nuire power to make it operative by delivery 
in Chicago to one of his creditors in Illinois, than he would have had to make it 
operative by delivery here, had it been drawn in favor of one of his creditors in 
Connecticut. It is not the place of delivery that controls, but the power of 
delivery. ' ' 

"1 See Emerji v. Cloufih (1^'^5). 03 X'. 11., 552 ("right or power of defea- 
sance"). 

"2 See Hudf/ens v. Chamberlain (1911), 161 Cal.. 71(i. 713. 715. For another 
instance of statutory powers, see Capital, etc., Bk. v. Bhodc/i [1903] 1 Ch., 631, 655 
(powers under registry acts). 



54 FUNDAMENTAL LEGAL CONCEPTIONS 

seems to have precisely that sort of power." Fundamentally con- 
sidered, the typical escrow transaction in which the performance of 
conditions is \Aathin the volitional control of the grantee, is somewhat 
similar to the conditional sale of personalty ; and, when reduced to its 
low^est terms, the problem seems easily to be solved in terms of legal 
powers. Once the "escrow" is formed, the grantor still has the legal 
title : but the grantee has an irrevocable power to divest that title by 
performance of certain conditions (i.e.,- the addition of various opera- 
tive facts), and concomitantly to vest title in himself. "While such 
power is outstanding, the grantor is, of course, subject to a correlative 
liability to have his title divested.'* Similarly, in the case of a con- 
veyance of land in fee simple subject to condition subsequent, after 
the condition has been performed, the original grantor is commonly 

'3 Though the nebulous term ' ' rights ' ' is used by the courts, it is evident that 
powers are the actual quantities involved. 

Thus, in the instructive case of Carpenter v. Scott (1881), 13 E. I., 477, 479, the 
court said, by Matteson, J.: "Under it (the conditional sale) the vendee acquires 
not only the right of possession and use, but the right to become the absolute 
owner upon complying with the terms of the contract. These are rights of which 
no act of the vendor can divest him, and which, in the absence of any stipulation 
in the contract restraining him, he can transfer by sale or mortgage. Upon per- 
formance of the conditions of the sale, the title to the property vests in the vendee, 
or in the event that he has sold, or mortgaged it, in his vendee, or mortgagee, 
without further bill of sale. . . . These rights constitute an actual, present inter- 
est in the property, which, as we have seen above, is capable of transfer by sale or 
mortgage. ' ' 

It is interesting to notice that in the foregoing passage, the term ' ' right ' ' is 
first used to indicate privileges of possession and use; next the term is employed 
primarily in the sense of legal power, though possibly there is a partial blending 
of this idea with that of legal claim, or right (in the narrowest connotation) ; then 
the term (in plural form) is used for the third time so as to lump together the 
vendee's privileges, powers and claims. 

For another case indicating in substance the true nature of the vendee 's interest, 
see Christensen v. Nelson (1901), 38 Or., 473, 477, 479, indicating, in effect, that 
the vendee 's powers as well as privileges may be- transferred to another, and that 
a proper tender constitutes "the equivalent of payment." 

74 See Davis v. ClarJc (1897), 58 Kan,, 100; 48 Pac, 563, 565; Leiter v. Pile 
(1889), 127 111., 287, 326; Welstur v. Trust Co. (1895), 145 N. Y., 275, 283; 
Furley v. Palmer (1870), 20 Oh. St., 223, 225. 

The proposition that the grantee's power is irrevocable is subject to the quali- 
fication that it might possibly be extinguished (or modified pro tanto) as the result 
of a transaction between the grantor and one having the position of bona fide 
purchaser, or the equivalent. 

It is hardly necessary to add that the courts, instead of analyzing the problem 
of the escrow in terms of powers, as here indicated, are accustomed to stating the 
question and deciding it in terms of "delivery," "relation back," "performance 
of conditions," etc. 



AS APPLIED IX JUDICIAL REASONING 55 

said to have a ''right of entry." If, however, the problem is analyzed, 
it will be seen that, as of primary importance, the grantor Iwus two 
legal quantities, (1) the privilege of entering, and (2) the power, by 
means of such entry, to divest the estate of the grantee." The latter 's 
estate endures, subject to the correlative liability of l)eing div.'sted, 
until such power is actually exercised.^" 

Passing now to the field of contracts, suppose A mails a Iftu-r lo B 
offering to sell the former's land. ^Vhiteacre, to the latter for ten 
thousand dollars, such letter being duly received. The operative facta 
thus far mentioned have created a power a.s regards H and a corre- 
lative liability as regards A. B. by dropping a letter of acceptance in 
the box, has the power to impose a potential or inchoate" obligation 
ex contractu on A and himself; and. a.ssuming that the land is worth 
fifteen thousand dollars, that partieuiar legal ijuantity — the '"power 
plus liability" relation ])etween A and B — seems to be worth about 
five thousand dollars to B. The liability of A will continue for a 
reasonable time unless, in exercise of his power to do so, A previously 
extinguishes it by that series of operative facts known as "revoca- 
tion." These last matters are usually described by saying that A's 
"offer" will "continue" or "remain open" for a reasonable time, or 
for the definite time actually specified, unles.s A previously "with- 
draws" or "revokes" such offer. "^ "While, no doubt, in the great 
majority of cases no harm results from the use of such expressions, yet 
these forms of statement seem to represent a blending of non-legal and 
legal quantities which, in any ]>roblem re<iuiring careful reasoning, 
should preferably be kept distinct. An oft'er, considered as a .series 
of physical and mental operative facts, has spent its force and become 
functus officio as soon as such series ha.s been completed by the 

■5 In this connection it is worthy of note that Sugden. in his work on Powers 
(8th ed., 1861), 4, uses, contrary to general practice, the expression, "power of 
entry for condition broken." 

"6 For miscellaneous instances of powers, see the good opinions in Bk. of S. 
Australia v. Abrahams (1875), L. R. 6 P. C, 265; Barlow v. Ross (1890). 24 
Q. B. D., 381, 384. 

""As to "inchoate" obligations, see Frost r. Knifjht (1872) L. R. 7 E\. Ill, 
per Cockburn, C. J. This matter will ro<civo further attention in a later part of 
the discussion. 

-8 Compare Bostot E. Co. r. Bartlctt (1849). 3 Cush., 225: "Though the 
writing signed by the defendant was but an ofTer, and an offer which might be 
revoked, yet while it remained in force and unrevoked, it was a continuing offer, 
during the time limited for acceptance, and during the whole of the rest of the 
time it was an offer every inst^ant ; but as soon as it was aoceitted, it cea.<ed to be 
an offer merely. ' ' 

Compare also the forms of statement in Ashley, Contracts (1011), 16 ff acq. 



56 FUNDAMENTAL LEGAL CONCEPTIONS 

"offeree's receipt." The real question is therefore as to the legal 
effect, if any, at that moment of time. If the latter consist of B's 
power and A's correlative liability, manifestly it is those legal rela- 
tions that "continue" or "remain open" until modified by revoca- 
tion or other operative facts."^'* AVhat has thus far been said 
concerning contracts completed by mail would seem to apply, mutatis 
mutandis, to every type of contract. Even where the parties are in the 
presence of each other, the offer creates a liability against the offerer, 
together with a correlative power in favor of the offeree. The only 
distinction for present purposes would be in the fact that such power 
and such liability would expire within a very short period of time. 

Perhaps the practical justification for this method of analysis is 
somewhat greater in relation to the subject of options. In his able 
work on Contracts,''^ Langdell says : 

"If the offerer stipulates that his offer shall remain open for a 
specified time, the first question is whether such stipulation constitutes 
a binding contract. . . . When such a stipulation is binding, the 
further question arises, whether it makes the offer irrevocable. It has 
been a common opinion that it does, but that is clearly a mistake. 
. . . An offer is merely one of the elements of a contract ; and it is 
indispensable to the making of a contract that the wills of the con- 
tracting parties do, in legal contemplation, concur at the moment of 
making it. An offer, therefore, which the party making it has no 
power to revoke, is a legal impossibility. Moreover, if the stipulation 
should make the offer irrevocable, it Mould be a contract incapable of 
being broken ; which is also a legal impossibilty. The only effect, 
therefore, of such a stipulation is to give the offeree a claim for 
damages if the stipulation be broken by revoking the offer. ' '^^ 

The foregoing reasoning ignores the fact that an ordinary offer ipso 
facto creates a legal relation — a legal power and a legal liability, — 
and that it is this relation (rather than the physical and mental facts 
constituting the offer) that "remains open." If these points be con- 
ceded, there seems no difficulty in recognizing a unilateral option 
agreement supported by consideration or embodied in a sealed instru- 
ment as creating in the optionee an irrevocable power to create, at any 
time wdthin the period specified, a bilateral obligation as between 

'8a [See the unusually clear statement of Holmes, J., in Braticr v. Shaw (1897), 
168 Mass., 198, 200: "By their choice and act they brought about a relation 
between themselves and the plaintiffs Avhich the plaintiffs could turn into a con- 
tract by an act on their part. . . .'*] 

T9 Langdell, Summary of Contracts (2d ed., 1880) sec. 178. 

80 Langdell 's a priori premises and specific conclusions have been adopted by a 
number of other writers on the subject. See, for example, Ashley, Contracts 
(1911), 25 et seq.; E. L. McWilliams, Enforcement of Option Agreements, (1913) 
1 Calif. Law Review, 122. 



AS AI'l'LlHD IN .IIDKIAL K1i:AS(J.\I Nd 57 

himself and the giver of tlir option. Corn-lativfly to that power, 
there would, of course, he a liahility ajrainst the option-giver wiiich 
he himself would have no power to extinguish. The courts seem to 
have no difficulty in reaching [)rccisely this result as a nuitter of suh- 
stanee; though their explanations are always in terms of "withdrawal 
of offer," and similar expressions savoi-ing ot" pliysieal and mental 
(juantities.'*^ 

In connection with tiie powers and liahilities ereated res[)eeliv«-ly 
hy an ordinary offer and by an option, it is interesting to consider the 
liabilities of a person engaged in a "public calling": for, as it seeins, 
such a party's characteristic position is, one might almost say, inter- 
mediate between that of an ordinary contractmil offerer and that of 
an option-giver. It has indeed been usual to assert that such a party 
is (generally speaking) under a present <lui]j to all other parties; but 
this is believed to be erroneous. Thus, Professor AVyman. in ids work 
on Public Service Companies,'^'- says: 

"The duty placed upon every one exercising a pulilie calling is 
primarily a dut]j to serve every man who is a member of tlu* public. 
. . . It is somewhat difficult to place this exceptional duty in our 
legal system. . . . The truth of the matter is that the obligation resting 
upon one who has undertaken the performance of i)ul)lic duty is sui 
generis. "^^ 

It is submitted that the learned writer's difficulties ari.se primarily 
from a failure to see that the innkeeper, the common carrier and others 
similarly "holding out" are under present liabilities rather than 

81 For a recent .iudicial expression on the subject, see ff. G. Brtsc Co. r. Uouse 
(1912), 162 Cal., 740, 745, per Sloss. J.: "Where there is :i consideration, the 
option cannot be withdrawn during the time agreed upon for its duration, while, 
if there be no consideration the party who has given the ojition may revoke it at 
any time before acceptance, even though Ihe time limited has not expired . . . 
such offer, duly accepted, constitutes a contract liijiding upon both j>arties and 
enforceable by either. ' ' 

See, to the same effect, Liim r. McLean (ISS.'J), SO Ala., :?no. .■?r,4 ; rr/?nVn v. 
Boland (1896), 166 Mass., 481, 483 (sealed offer). 

Most of the cases recognizing the irrevocable jiower of tlic oj>fioneo have arisen 
in equitable suits for specific performamc; liut there sei-ms to be no reason for 
doubting that the same doctrine should le ajijdied in a common law action for 
damages. See, in accord. Baler v. Show (1912), 68 Wash.. 09. lO.T {dicta in nn 
action for damages). 

[For applications of the method of analysis here presented, see Profes.sor .\rfhur 
L. Corbin, Offer and Acceptance, and Smne of the liesultino Lr,jal Rrlalion^, 
(1917) 26 Yale Law .Tournal, 169; also (by the same writer) CotHiituii..t i/i the 
Law of Contract.'^, (1919) 2S Yale Law .lonrnal. 7.".9.— Kd.] 

82 Sees. .^.SO-.^S.?. 

83 Compare, to the same effect. Keener. Qua.-ii Contracts (1893), p. IS. 



58 FUNDAMENTAL LEGAL CONCEPTIONS 

present duties. Correlative to those liabilities are the respective 
powers of the various members of the public. Thus, for example, a 
traveling member of the public has the legal power, by making proper 
application and sufficient tender, to impose a duty on the innkeeper 
to receive him as a guest. For breach of the duty thus created an 
action would of course lie. It would therefore seem that the inn- 
keeper is, to some extent, like one who had given an option to every 
traveling member of the public. He differs, as regards net legal effect, 
only because he can extinguish his present liabilities and the correl- 
ative powers of the traveling members of the public hy going out of 
husiness. Yet, on the other hand, his liabilities are more onerous 
than that of an ordinary contractual offerer, for he cannot extinguish 
his liabilities by any simple performance akin to revocation of offer. 

As regards all the ' ' legal powers ' ' thus far considered, possibly some 
caution is necessary. If, for example, w^e consider the ordinary 
property owner's power of alienation, it is necessary to distinguish 
carefully between the legal power, the physical power to do the things 
necessary for the "exercise" of the legal power, and, finally, the 
privilege of doing these things — that is, if such privilege does really 
exist. It may or may not. Thus, if X, a landoA\aier, has contracted 
with Y that the former Anil not alienate to Z, the acts of X necessary 
to exercise the power of alienating to Z are privileged as between X 
and every party other than Y; but, obviously, as between X and Y, 
the former has no privilege of doing the necessary acts ; or conversely, 
he is under a duty to Y not to do what is necessary to exercise the 
power. 

In view of what has already been said, very little may suffice con- 
cerning a liahility as such. The latter, as we have seen, is the correl- 
ative of power, and the opposite of immunity (or exemption). While 
no doubt the term "liability" is often loosely used as a synonym for 
"duty," or "obligation," it is believed, from an extensive survey of 
judicial precedents, that the connotation already adopted as most 
appropriate to the word in question is fully justified. A few cases 
tending to indicate this will now be noticed. In McNeer v. McNeer,^* 
Mr. Justice Magruder balanced the conceptions of power and liability 
as follows: 

"So long as she lived, however, his interest in her land lacked those 
elements of property, such as power of disposition and liahility to sale 
on execution which had formerly given it the character of a vested 
estate. ' ' 

In Booth V. Commonwealth,^^ the court had to construe a Virginia 

84 (1892) 142 111., 388, 397. 85 (1861) 16 Grat., 519, 525. 



AS AI'TLIKI) IX .ITDIi'IAL REASONING 59 

statute providing "that all five wliitf iiuile persons who are twenty- 
one years of age and not over sixty, shall he liable to serve as jurors, 
except as hereinafter provided." It is plain that this enactment 
imposed only a liahilitij and not a chtfy. It is a liahility to have a 
duty created. The latter would arise only when, in exercise of their 
powers, the parties litigant and the court ofificfrs had done what was 
necessary to impose a specific duty to j)erform the functions of a 
juror. The language of the court, by ]\Ioncure. J., is particularly 
apposite as indicating that liability is the opposite, or negative, of 
immunity (or exemption) : 

''The word both expressed and implied is 'liablr.' which has a very 
different meaning from '(jualified' ... Its meaning is 'bound' or 
'obliged.' ... A person exempt from serving on juries is not liable 
to serve, and a person not liable to serve is exempt from serving. The 
terms seem to be convertible.'' 

A further good example of judicial usage is to be found in Emrry 
V. Clough.^^ Referring to a gift causa mortis and the donee's liability 
to have his already vested interest divested l)y the donor's exercise of 
his power of revocation, Mr. Justice Smith said : 

"The title to the gift causa mnriis passed by the delivery, defeasible 
only in the lifetime of the donor, and his death perfects the title in 
the donee by terminating the donor's right or power of defeasance. 
The property passes from the donor to the donee directlj' . . . and 
after his death it is liable to lie divrsfecl only in favor of the donor's 
creditors. . . . His right and power ceased with his death." 

Perhaps the nearest synonym of "liability" is "subjection" or 
"responsibility." As regards the latter word, a passage from Mr. 
Justice Day's opinion in McElfresh v. KirkcndalP' is interesting: 

"The words 'debt' and 'liability' are not synonymous, and they arc 
not commonly so understood. As applied to the peeuniary relations 
of the parties, liability is a term of broader signiticance than debt. 
. . . Liability is responsibility." 

While the term in question has the broad generic connotation 
already indicated, no doubt it very frequently indicates that specific 
form of liability (or complex of liabilities'! that is correlative to a 
power (or complex of powers)^^ vested in a party litigant and the 
various court officers. Such was held to be the meaning of a certain 



- -.-,) 63 N. n., 552. 

87 (1573) 36 la., 224, 226. 

88 Compare Attorveij Gcxeral v. Sudclen [ISOfi] 1 Q. B., 354. 359 (per Lord 
Esher: "What is called a 'rit;;ht of action' is not the pouer of hringing an action. 
Anybody can bring an action thoujrh he has no right at all.'") ; Krocssin v. KcUcr 
(1895), 60 Minn., 372 (per Collins. J.: "The power to bring such actions"). 



60 FUNDAMENTAL LEGAL CONCEPTIONS 

California statute involved in the case of Lattin v. Gillette}^ Said 
Mr. Justice Harrison : 

"The word 'liability' is the condition in Avhich an individual is 
placed after a breach of his contract, or a violation of any obligation 
resting upon him. It is defined by Bouvier to be responsibility. ' '^° 

Immunities and Disahilitics. As already brought out, immunity is 
the correlative of disability ("no-power"), and the opposite, or nega- 
tion, of liability. Perhaps it will also be plain, from the preliminary 
outline and from the discussion down to this point, that a power bears 
the same general contrast to an immunity that a right does to a 
privilege. A right is one's affirmative claim against another, and a 
privilege is one's freedom from the right or claim of another. Simi- 
larly, a power is one 's affirmative ' ' control ' ' over a given legal relation 
as against another; whereas an immunity is one's freedom from the 
legal power or "control" of another as regards some legal relation. 

A few examples may serve to make this clear. X, a landowner, has, 
as we have seen, power to alienate to Y or to any other ordinary party. 
On the other hand, X has also various immunities as against Y, and 
all other ordiuarj^ parties. For Y is under a disability (i.e., has no 
power) so far as shifting the legal interest either to himself or to a 
third party is concerned; and what is true of Y applies similarly to 
every one else who has not by virtue of special operative facts acquired 
a power to alienate X's property. If, indeed, a sheriff has been duly 
empowered by a writ of execution to sell X's interest, that is a very 
different matter: correlative to such sheriff's power would be the 
liability of X, — ^the very opposite of immunity (or exemption). It 
is elementary, too, that as against the sheriff, X might be immune or 
exempt in relation to certain parcels of property, and be liable as to 

89 (1892) 95 Cal., 317, 319. 

80 We are apt to think of liability as exclusively an onerous relation of one 
party to another. But, in its broad technical significance, this is not necessarily 
so. Thus X, the owner of a watch, has the power to abandon his property — that 
is, to extinguish his existing rights, powers, and immunities relating thereto (not, 
however, his i^rivileges, for until someone else has acquired title to the abandoned 
watch, X would have the same privileges as before); and correlatively to X's 
power of abandonment there is a liability in- every other person. But such a 
liability instead of being onerous or unwelcome, is quite the opposite. As regards 
another person, M, for example, it is a liability to have created in Ids favor (though 
against his will) a privilege and a power relating to the watch, — that is, the privi- 
lege of taking possession and the power, by doing so, to vest a title in himself. 
See Dougherty v. Creary (1866), 30 Cal., 290, 298. Contrast with this agreeable 
form of liability the liability to have a duty created — for example, the liability of 
one who has made or given an option in a case where the value of the property has 
greatly risen. 



AS ATPLIKI) IX JUDICIAL REASOXIXG r.l 

others.^'^^ Similarly, if uii a^'t-nt has 1r-.-ii duly appointi-.l l.y X to 
sell a given piece of property, then, as to the latter, X has, in n-latiun 
to such agent, a lia])ility rather than an iiiuinniity. 

For over a century there has been, in this country, a gn-at d.-al of 
important litigation involving innnunities from powers of taxation. 
Jf there be any lingering misgivings as to the "practical" importance 
of accuracy and discrimination in legal conceptions and legal terms, 
perhaps some of such doubts would be dispelled by considering the 
numerous cases on valuable taxation exemptions coining before the 
United States Supreme Court. Thus, in Phomix Ins. Co. v. Tnims- 
see,^^ Mr. Justice Peekham expressed the views of the court as follows : 

"In granting to the De Soto Company all tlic rights, privileges, and 
immunities' of the Bluff City Company, all words are used which 
could be regarded as necessary to carry the exemption from taxation 
possessed by the Bluff City Company; while in the next following 
gi-ant, that of the charter of the plaintiff in error, the word 'imimni- 
ity' is omitted. Is thej-e any meaning to be attached to that omission, 
and if so, what? We think some meaning is to be attached to it. The 
word 'immunity' expresses more clearly and detinitely an intention 
to include therein an exemption from taxation than does either of the 
other words. Exemption from taxation is inore accurately described 
as an 'immunity' than as a privilege, although it is not to be denied 
that the latter word may sometimes and under some circumstances 
include such exemptions." 

In Morgan v. Louisiana^'- there is an instructive discussion from 
the pen of ]\Ir. Justice Field. In holding that on a foreclosure sale 
of the franchise and property of a railroad cor]>oration an imnnniity 
from taxation did not pass to the purchaser, the learned jutlgc .said: 

"As has been often said by this court, the whole comnuinity is inter- 
ested in retaining the power of taxation undiminislicd. . . . The 
exemption of the property of the comjiany from taxation, and the 
exemption of its officers and servants from jury and military duty, 
were both intended for the benefit of the company, and its benefit 
alone. In their personal character they are analogous to exemptions 
from execution of certain property of debtors, made by laws of sfveral 
of the states. ' "■*'' 

So far as immunities are concerned, the two judicial di.soussions 



«f>a See the use of "imnnmity " by Moore, J., in CoUnu-k- v. ifanin (1911), 60 
Or., 312. 118 Vac, lOlfi. 

J»i (1895) 161 V. S., 174. 177. 

«2 (1876) 93 U. S., 217, 222. 

03 See, in apcord, Pirnrd v. Tcviir.'inrr, ,t,\. H. (n. (ISSS). 130 V. S.. «137, 6-J2 
(Field. .T.); Fmhrstrr h'niUran Co. v. Unrhrstrr (190CO, 20.", V. S., 236, 2r,2 
(Moody, J., reviewing the many other cases on the siili,ie<'ti. 

In Inteniat. .j'- G. X. Hji. Co. r. Sditr (ls<iO), T.T Tex.. .3."r>. a d'.ffrrent view was 



62 FUNDAMENTAL LEGAL CONCEPTIONS 

last quoted concern respectively problems of interpretation and prob- 
lems of alienability. In many other cases difficult constitutional 
questions have arisen as the result of statutes impairing or extending 
various kinds of immunities. Litigants have, from time to time, had 
occasion to appeal both to the clause against impairment of the 
obligation of contracts and to the provision against depriving a 
person of property without due process of law. This has been espe- 
cially true as regards exemptions from taxation^* and exemptions 
from execution.''^ 

If a word may now be permitted with respect to mere terms as such, 
the first thing to note is that the word "right" is overworked in the 
field of immunities as elsewhere.^" As indicated, however, by the 
judicial expressions already quoted, the best synonym is, of course, 
the term ' ' exemption. ' '^^ It is instructive to note, also, that the word 

taken as to the alienahUity of an immunity from taxation. Speaking by Stayton, 
C. J., the court said (p. 377) : 

"Looking at the provisions of the Act of March 10, 187.5, we think there can 
be no doubt that the exemption from taxation given by it, instead of being a right 
vesting only in appellant, is a right which inheres in the property to which it 
applies, and follows it into the hands of whosoever becomes the owner. . . . The 
existence of this right enhances the value of the property to which it applies. 
Shareholders and creditors must be presumed to have dealt with the corporation on 
the faith of the contract which gave the exemption, and it cannot be taken away 
by legislation, by dissolution of the corporation, or in any other manner not suffi- 
cient to pass title to any other property from one jierson to another. The right 
to exemption from taxation is secured by the same guaranty which secures titles 
to those owning lands granted under the act, and though the corporation may be 
dissolved, will continue to exist in favor of persons owning the property to 
which the immunity applies. Lawful dissolution of a corporation will destroy all its 
corporate franchises or privileges vested by the act of incorporation ; but if it holds 
rights, privileges, and franchises in the nature of property, secured by contract 
based on valuable consideration, these will survive the dissolution of the corpora- 
tion, for the benefit of those who may have a right to or just claim upon its assets. ' ' 

Compare, as regards homestead exemptions, Sloss, J., in Smith v. Bougham 
(1909), 156 Cal., 3-59, 365: "A declaration of homestead . . . attaches certain 
privileges and immunities to such title as may at the time be held. ' ' 

9* See Choate v. Trapp (1912), 224 U. S., 665. 

05 See Brearly ScJwol, Limited v. Ward (1911), 201 N. Y., 358; 94 N. E., 1001 
(an interesting decision, with three judges dissenting). The other cases on the 
subject are collected in Ann. Cas., 1912 B, 259. 

96 See Brearly School, Limited v. Ward, cited in preceding note; also Internat. 
4- G. N. By. Co. V. State (1899), 75 Tex., 356, quoted from ante, n. 91. 

97 Compare also Wilson v. Gaines (1877), 9 Baxt. (Tenn.), 546, 550-551, Turney, 
J. : " The use in the statutes of two only of the words of the constitution, i.e., 
'rights' and 'privileges,' and the omission to employ either of the other two fol- 
lowing in immediate succession, viz., 'immunities' and 'exemptions,' either of which 
would have made clear the construction claimed by complainant, evidence a pur- 



AS APrLIED IX .irDICIAL REASONING C3 

"impunity" has a very similar connotation. This is made evident by 
the interesting discriminations of Loi-d < 'hanffllor Finch in Skilton 
V. Skelton,^^ a case decided iu 1677 : 

''But this I Avould by no means allow, that eipiity slionld t-nlarfire 
the restraints of the disabilities introdnceil by .ict of parliaim-nt ; and 
as to the granting of injunctions to stay waste. 1 took a distinction 
where tenant hath only impii)ntat< )n, ami where he hath jus in arhori- 
bus. If the tenant have only a bare indemnity or (S( niption from an 
action (at law), if he committed waste, there it is lit he should be 
restrained by injunction from committing it.'"''-' 



In the latter part of the preceding discussion, eight conceptions of 
the law have been analyzed and comj)ared in some detail, the ]iurpose 
having been to exhibit not only their inti-insic iinaning and scope, bnt 
also their relations to one another and the methods by which they 
are applied, in judicial reasoning, to the solution of concrete problems 
of litigation. Before concluding this l)ranch of the discussion a 
general suggestion may be ventured as to the great practical impor- 
tance of a clear appreciation of the distinctions and discriminations 
set forth. If a homely metaphor be permitted, these eight concep- 
tions, — rights and duties, privileges and no-rights, powers and lia- 
bilities, iunnunities and disabilities, — seem to be what may be called 

posed intention on the part of the legislature not to grant the benefit claimed by 
the bill. ' ' 

Only very rarely is a court found seeking to draw a subtle distinction between 
an immunity and an exemption. Thus, in a recent case, Strah^n v. Woync Co. 
(June, 1913), 142 N. W., 678, 680 (Neb.), Mr. Justice Barnes said: "It has been 
held by the great weight of authority that dower is not immune (from the inherit- 
ance tax) because it is do-wer, but because it . . . belonged to her inchoately 
during (the husband's) life. . . . Strictly speaking, the widow's share should be 
considered as immune, rather than exempt, from an inheritance tax. It is free, 
rather than freed, from such tax. ' ' 

s»8 (1677) 2 Swanst., 170. 

99 In Skelton v. Skelton, it will be observed, the word " impuniti/" and the word 
"exemption" are used as the opposite of UohiUtu to the jtowers of a plaintiff in an 
action at law. 

For similar recent instances, see VaclKr S- Sous, Limit nl v. Loudon Socielii of 
Compositors [1913] A. C, 107, 118, 125 (per Lord Macnaghten : "Now there i.s 
nothing absurd in the notion of an association or body enjoying immunity from 
actions at law;" per Lord Atkinson: "Conferring on the trustees immunity as 
absolute," etc.). 

Compare also Baiilics v. Bi.shop of Loudon [lOl.T] 1 Ch.. 127. 139. 140. per 
Hamilton, L. J. [Compare also the remarks of Swinfen Eady, J., in ThornhtU v. 
Weeks [1913] 1 Ch., 438, 442.] 

For instances of the apt use of the term "disability" as equivalent to tJie nega- 
tion of legal power, see Poury v. llordcm [1900] 1 Ch.. 492. 495; Sheridan v. Eldrn 
(1862), 24 N. Y., 2S1, 384. 



64 FUNDAMENTAL LEGAL CONCEPTIONS 

"the lowest common denominators of the law." Ten fractions (1-3, 
2-5, etc.) may, superficially, seem so different from one another as to 
defy comparison. If, however, they are expressed in terms of their 
lowest common denominators (5-15, 6-15, etc.), comparison becomes 
easy, and fundamental similarity may be discovered. The same thing 
is of course true as regards the lowest generic conceptions to which 
any and all "legal quantities" may be reduced. 

Reverting, for example, to the subject of powers, it might be diffi- 
cult at tirst glance to discover any essential and fundamental simi- 
larity between conditional sales of personalty, escrow transactions, 
option agreements, agency relations, powers of appointment, etc. But 
if all these relations are reduced to their lowest generic terms, the 
conceptions of legal power and legal liability are seen to be domi- 
nantly, though not exclusively, applicable throughout the series. By 
such a process it becomes possible not only to discover essential simi- 
larities and illuminating analogies in the midst of what appears super- 
ficially to be infinite and hopeless variety, but also to discern common 
principles of justice and policy underlying the various jural problems 
involved. An indirect, yet very practical, consequence is that it fre- 
quently becomes feasible, by virtue of such analysis, to use as persua- 
sive authorities judicial precedents that might other^nse seem 
altogether irrelevant. If this point be valid with respect to powers, 
it would seem to be equally so as regards all of the other basic con- 
ceptions of the law. In short, the deeper the analysis, the greater 
becomes one 's perception of fundamental unity and harmony in 
the law."° 

Wesley Newcomb Hohfeld. 

Stanford University, California. 

100 The next article in the present series •will discuss the distinctions between 
legal and equitable jural relations; also the contrast between rights, etc., in rem, 
and rights, etc., in personam. The supposed distinctions between substantive and 
adjective jural relations will also be considered, — chiefly with the purpose of show- 
ing that, so far as the intrinsic and essential nature of those relations is concerned, 
the distinctions commonly assumed to exist are imaginary rather than real. Finally, 
some attention will be given to the nature and analysis of complex legal inter- 
ests, or aggregates of jural relations. [As an examination of the next essay will 
reveal, the "next article" deals chiefly with rights, etc., in personam and rights, 
etc., in rem. The author's untimely death prevented the carrying out of the 
remainder of the plan. — Ed.] 



FUXDAMEXTxVL LEGAL COXCEPTIOXS AS 
APPLIED IX JI^DU'IAL UEASOXIXG^ 

II 

The present discussion, whilo intondod to be intrinsienlly complete 
so far as intelligent and convenient perusal is concci'iKMl. i-epresents, 
as originally planned, a continuation of an article which appeared 
under the same title more than three years ago.- It therefore seems 
desirable to indicate, in very general form, the scope and purpose of 
the latter. The main divisions were entitled : Legal Conceptions 
Contrasted Avith Xon-Legal Conceptions: Operative Facts Contrasted 
with Evidential Facts; and Fundamental Jural Relations Contrasted 
with One Another. The jural relations analyzed and discussed under 
the last subtitle were, at the outset, grouped in a convenient "scheme 
of opposites and correlatives" ;•'• and it will greatly facilitate the 
presentation of the matters to be hereafter considered if that scheme 
1>e reproduced at the present point : 

Jural Opposites ^ . , 

) no-right 

T ^ f 14- (I'igl^t 

Jural Correlatives " 

C^iity 

The great practical importance of accurate thought and precise 
expression as regards basic legal ideas and their embodiment in a 
terraiuologj^ not calculated to mislead is not always fully realized — 

1 Copyright, ]917, l)y Wesley Xewcomb ITohfeM. The suhstiince of this article, 
with some expansion aud nuich additional illustrative material from judicial 
opinions, will form part of a volume to appear shortly under Mie same title as that 
here given. [This essay appeared in (1917) 26 Yale Law Journal, 710. — Ed.] 

- (1913) 2.3 Yale Law Journal, lO, 59. One of the <hief purposes of this earlier 
article was to establish a firm foundation for the analysis and discussion of com- 
plex jural interests, or aggregates of jural relations. — the interest of the cestui 
que trust having been more especially in view. See (1913) 23 Yale Law Journal, 
16-20, and notes. See pp. 64 and 23-27, supra. This last-mentioned subject receives 
some incidental consideration in the pages following; Init a more adequate treat- 
ment must be reserved for another occasion. 

3 See (1913) 23 Yale Law Journal, 16, 30 ff.. where the individual conceptions 
represented in the scheme are treated at length. See p. 36, supra. 



privilege 


JKjwer 


immunity 


duty 


disability 


liability 


privilege 


power 


immunity 


no-right 


liabilitv 


disal)ilitv 



66 FUNDAMENTAL LEGAL CONCEPTIONS 

especially by the student not yet far advanced in his legal work ; and 
it is even true that many an experienced lawyer has all too thought- 
lessly assumed that those matters usually considered in works on 
so-called "jurisprudence" are merely "academic" in character and 
devoid of substantial utility for the practitioner or judge. In order 
to dissipate, if possible, this fallacious notion — one so demonstrably 
unfortunate in its consequences as regards all departments of the 
law* — the eight conceptions represented in the above scheme were 
analyzed and compared in great detail, the purpose having been not 
only to exhibit their intrinsic meaning and scope and their relations to 
one another, but also to exemplify the methods, both good and bad, by 
which they are actually applied m judicial reasoning to the solution 
of concrete problems of litigation. The purpose last indicated must 

4 See Mr. Justice Holmes, The Path of the Law, (1897) 10 Harvard Law Eeview, 
456, 474-475 : 

"Jurisprudence, as I look at it, is simply law in its most generalized part. 
Every effort to reduce a case to a rule is an effort of jurisprudence, although the 
name as used in English is confined to the broadest rules and most fundamental 
conceptions. One mark of a great lawyer is that he sees the application of the 
broadest rules. There is a story of a Vermont justice of the peace before whom a 
suit was brought by one farmer against another for breaking a churn. The 
justice took time to consider, and then said that he had looked through the statutes 
and could find nothing about churns, and gave judgment for the defendant. The 
same state of mind is shown in all our common digests and text-books. Applica- 
tions of rudimentary rules of contract or tort are tucked away under the head 
of Eailroads or Telegraphs or go to swell treatises on historical subdivisions, such 
as Shipping or Equity, or are gathered under an arbitrary title which is thought 
likely to appeal to the practical mind, such as Mercantile Law. If a man goes 
into law it pays to be a master of it, and to be a master of it means to look 
straight through all the dramatic incidents and to discern the true basis for 
prophecy. Therefore, it is well to have an accurate notion of what you mean by 
law, by a right, by a duty, by malice, intent, and negligence, by ownership, by 
possession, and so forth. I have in my mind cases in which the highest courts 
seem to me to have floundered because they had no clear ideas on some of these 
themes. ' ' 

The following observations of the same learned judge are also deserving of 
consideration : 

"As long as the matter to be considered is debated in artificial terms there is 
a danger of being led by a technical definition to apply a certain name, and then 
to deduce consequences which have no relation to the grounds on which the name 
was applied." Mr. .Justice Holmes in G\iy v. Donald (1906), 203 U. S., 399, 406; 
27 Sup. Ct. Eep., 63, 64. 

"It is one of the misfortunes of the law that ideas become encysted in phrases 
and thereafter for a long time cease to provoke further analysis." Mr. Justice 
Holmes, in Hyde v. United States (1911), 225 U. S., 347, 391. 

Compare the remarks of Lord Kinnear, in Banh of Scotland v. Macleod [1914] 
A. C, 311, 324. He there endorses Lord Westbury's declaration that "there is 



AS APPLIED IX .(I'DiriAL RFASOXTNG G7 

in the present discussion, as in the foriiuT one, ])e the justification for 
frequent concrete examples of judicial usagre. and henc<* for liberal 
quotations from apposite judicial opinions. Instructive examples, 
whether by way of model or by way of warning, must also be drawn 
occasionally from the works of well-known legal authors.' 

In the following pages it is proposed to begin the discussion of 
certain important classifications which are applicable to each of the 
eight individual jural conceptions represented in the above scheme. 
Some of such overspreading classifications consist of the following: 
relations in personam ("paucitar' relations), and relations in rem 
("multital" relations) ; common (or general) relations and special 
(or particular) relations; consensual relations and constructive rela- 
tions; primary relations and secondary relations; subst-antive relations 
and adjective relations; perfect relations and imperfect relations; 
concurrent relations (i.e., relations concurrently legal and ecjuitable) 
and exclusive relations (i.e., relations exclusively equitable).* As the 
bulk of our statute and case law becomes greater and greater, these 
classifications are constantly increasing in their practical importance : 
not only because of their intrinsic value as mental tools for the compre- 
hending and systematizing of our complex legal materials, but also 
because of the fact that the opposing ideas and terms involved are at 
the present time, more than ever before, constituting part of the 
formal foundation of judicial reasoning and decision.' Owing to 

not a more fruitful source of error in law than the inaccurate use of language," 
and Lord Mansfield's observation that "nothing in law is so apt to mislead as a 
metaphor." The learned judge also remarks: 

"The fallacy consists in using legal terms in a popular or metaphorical sense 
and yet affixing to them all the legal consequences which would attach to their use 
in a strictly technical sense." 

See also, as regards confusion of thought resulting from loose or ambiguous 
legal terms. Field, J., in Morgan v. Louisiana (1876), 93 U. S., 217, 223; and Peck- 
ham, J., in Phoenix Ins. Co. v. Tennessee (1895), 161 U. S., 174, 177, 17S. 

5 Owing, however, to limitations of space, it has proved necessary to exclude at 
this time a large part of the available illustrative material originally intended to be 
presented. 

6 For an explanation of the classification of .iural relations as "concurrent" and 
"exclusive" see the writer's article entitled. The Relations between Equity and 
Law, (1913) 11 Michigan Law Review, 537, 553, 569, printed infra. 

See also the article of the writer's friend and colleagiie. Professor Walter 
Wheeler Cook, The AlienahUiiii of Choses in Action — A Bepbj to Professor Wil- 
liston, (1917) 30 Harvard Law Review, 449, 460 ff. 

7 In this sentence the word * ' formal ' ' must not be ignored ; for, in emphasizing 
for the time being the formal and analytical side of legal problems, the writer 
would not be thought to underestimate the great imporfan.'e of other phases of 
the law, both scientific and practical. He has had occasion elsewhere to discuss 



68 FUNDAMENTAL LEGAL CONCEPTIONS 

limitations of space the following pages will be confined to the first 
classification above indicated, viz., relations in personam and relations 
in rem. 

The phrases in personam and in rem, in spite of the scope and the 
variety of the situations to which they are commonly applied, are 
more usually assumed by lawyers, judges, and authors to be of unvary- 
ing meaning and free of ambiguities calculated to mislead the unwary. 
The exact opposite is, however, true; and this has occasionally been 
explicitly emphasized by able judges whose warnings are worthy of 
notice. Thus, in Tyler v. Court of Registration,^ Mr. Chief Justice 
Holmes says, as regards the expression in rem, that "no phrase has 
been more misused"; and in the recent case of Hooh v. Hoffman,^ Mr. 
Justice Franklin, in the course of a scholarly opinion involving the 
nature of "proceedings in rem," finds it necessary to characterize the 
expression "jus in rem " as " somewhat obscure and ambiguous. ' ' The 
thoughtful judge last named is, however, kind enough to advise us 
of the one and only remedy for this difficulty, and prompt to attempt 
that remedy in his own opinion. His words are worthy of quotation : 

"It is no more of a solecism to say immovable personal property 
than it is to say removable fixtures, nor more contradicting than in 
the division of actions to use the term 'in rem,' when, under the par- 
ticular state of facts, the action is primarily 'in personam.' In the 
development of the law it is seldom possible, or, when possible, seldom 
expedient, to discard established terms. In this connection an observa- 
tion by Mr. Justice Holmes is peculiarly applicable : 

" ' As long as the matter to be considered is debated in artificial 
terms, there is danger of being led hy a technical definition to apply 
a certain name, and then to deduce consequences which have no rela- 
tion to the grounds on which the name was applied.' Guy v. Donald, 
203 U. S., 406. 

"Instead of rejecting convenient terms because they are ambiguous 
or not comprehensive, it is better to explain their meanings, or, in the 
language of old Hobbes, 'to snutf them with distinctions and defini- 
tions, ' so as to give a better light. ' '^*^ 

All this being so, we are forced to recognize at the very outset that 
the antithetical pair of expressions, in personam and in rem, is con- 
more comprehensively the fundamental aspects of the law, including historical, or 
genetic, jurisprudence; comjiarative, or eclectic, jurisprudence; formal, or analyti- 
cal, jurisprudence; critical, or teleological, jurisprudence; legislative, or construc- 
tive, jurisprudence; empirical, or functional, jurisprudence. See A Vital School of 
Jurispnidence and Laic, Proc. of Assn. of Am. Law Schools for 1914, pp. 76-139. 
[Reprinted infra. — Ed.] 

8 (1900) 175 Mass., 71, 76. 

3 (1915) 16 Ariz., 540, 554. 

10 (1915) 16 Ariz., 540, 558. 



AS APPLIED IX JI'DICIAL REASONING 69 

stantly ]mng eiiiployed as a l)asis for classifying at least four distinct 
matters; and that the respective meanings of the expression in per- 
sonam and the expression in rem arc not tlie same for all of the 
different situations involved : 

First, we have a fundamental classification of primary rights as 
rights in pcrsonatn, and rights in rem; second, there is the well-known 
classitication of all judicial proceedings into proceedings or actions 
in persona}n and proceedings or actions in rt m ; third, there exists the 
closely related classification of judgments and decrees (and the cor- 
responding jurisdictions of courts), some being called judgments or 
decrees in personam, and the others judgments or decrees in rem; 
fourth, assuming a judgment or decree in pusonam to have been 
obtained as the result of what may be called the "primary stage" of 
the typical judicial proceeding, the question of its so-called "enforce- 
ment" — really the "secondary stage" of the judicial proceeding — 
comes into view;" and such enforcement is said to be either in per- 
sonam, as in the case of the typical contempt proceeding employed to 
coerce performance of a decree in e(iuity, or in rem, as in the case of 
tlie typical execution sale following upon an ordinary legal judgment 
in personam.^'- Anyone who has seriously observed and reflected on 

11 Compare, as regards the significance and propriety of these terms, ' ' primary 
stage" and "secondary stage" as applied to a suit in equity or an action at 
law. Lord Hardwicke, in Penn v. Lord Baltimore (1750), 1 Yes., 444, 454: 

"As to the court's not inforcing the execution of their judgment; if they 
could not at all, I agree, it would be in vain to make a decree; and that the court 
cannot inforce their own decree in rem, in the present case: but that is not an 
objection against making a decree in the cause; for the strict primary decree in 
this court as a court of equity is in personam, long before it was settled, whether 
this court could issue [««■] to put into possession in a suit of lands in England; 
which was first begun and settled in the time of James I. but ever since done by 
injunction or writ of assistant to the sheriff: but the court cannot to this day as 
to lands in Ireland or the plantations. In Lord King's time in the case of 
Richardson v. Hamilton, Attorney General of Pennsylvania, which was a suit of 
land and a house in the to\\-n of Philadelphia, the court made a decree, though it 
could not be inforced in rem. In the case of Lord Anglesey of land lying in Ire- 
land, I decreed for distinguishing and settling the parts of the estate, though 
impossible to inforce that decree t" rem, but the party being in England, I could 
inforce it by process of contempt in personam and sciiucstration. which is the proper 
jurisdiction of this court." 

It is interesting to observe that Lord Hardwicke speaks of the writ of assistance 
(under which an equity plaintiff might through the sheriff be put into actual 
possession of land) as a means by which a court of equity could at times "enforce 
in rem" the "strict primary decree i" personam." 

12 For an able and searching discussion of proceedings im personam and pro- 
ceedings in rem, see the series of articles by Professor Walter Wheeler Cook 



70 • FUNDAMENTAL LEGAL CONCEPTIONS 

the interrelatiou of ideas and language must realize how words tend 
to react upon ideas and to hinder or control them. More specifically, 
it is overwhelmingly clear that the danger of confusion is especially 
great when the same term or phrase is constantly used to express two 
or more distinct ideas. Professor Holland, having in mind, as regards 
this psychological phenomenon, a particular instance not now before 
us, — viz., the well-knoun ambiguity of the Latin jus, the German 
RecJit, the Italian diritto, and the French droit, terms used to indicate 
both "'law" as such and "a right" considered as a concrete relation 
created by law, — does not exaggerate in the least when he says : 

"If the expression of widely different ideas by one and the same 
term resulted only in the necessity for these clumsy periphrases, or 
obviously inaccurate paraphrases, no great harm would be done ; but 
unfortunately the identity of terms seems irresistibly to suggest an 
identity between the ideas which are expressed by them."^^ 

No doubt this psychological and linguistic principle — what might 
be called "the principle of linguistic contamination" — explains why 
certain well-known legal authors have assumed, with unfortunate 
effect on their reasoning and argument, that the contrasted pairs of 
terms in personam and in rem have the same intrinsic meaning in each 
of the four cases above mentioned, and therefore represent throughout 
a precisely similar basis of classification ; also that there is some formal 
and symmetrical interdependence between the four classifications pre- 
sented, — e.g., that primary rights in rem are such as may be "en- 
forced," or vindicated, by proceedings and judgments in rem, or, 
similarly, that primary rights in personam are such as can be "en- 
forced," or vindicated, only by actions or proceedings in personam. 

entitled, The Powers of Courts of Equity, (1915) 15 Columbia Law Eeview, 37, 
106, 228. 

See also the present writer's article. The delations between Equity and Law, 
(1913) 11 Michigan Law Eeview, 537, passim. 

13 Holland, Jurisprudence (10th ed., 1906), pp. 80-81. 

Compare Austin, Jurisprudence (5th ed., 1885), Vol. I, pp. 285-286, note, 
referring to the same ambiguity as Holland, and adding: 

' ' Since the strongest and wariest minds are often ensnared by ambiguous words, 
their (the Germans') confusion of those disparate objects is a venial error." 

Compare also Austin, Jurisprudence, Yol. I, p. 322, note: 

' ' In the language of English jurisprudence, facts or events which are contracts 
quasi or uti, are styled implied contracts, or contracts which the law implies: that 
is to say, contracts quasi or uti, and genuine though tacit contracts, are denoted 
by a common name, or by names nearly alike. And, consequently, contracts, quasi 
or uti, and implied or tacit contracts, are commonly or frequently confounded by 
English lawyers. See, in particular, Sir William Blaekstone's Commentaries, 
B. II. Ch. 30. and B. III. Ch. 9." 



AS APPLIED IX JUDICIAL REASONING 71 

At a later point some of tlu-se prol)l<'iiis and fallacies will receive 
incidental treatment in connection with the main thread of tiie dis- 
cussion, and it will thus be possible to give more concrete specifications 
and examples. The chief purpose of the following pages is, however, 
to discuss, directly and exhaustively, only the first of the four general 
classifications above outlined, i.e., rights (or claims), privileges, 
powers, and immunities in personam and rights (or claims), privileges, 
powers, and immunities in rem. Substituting what the writer ventures 
to suggest as equivalent and more satisfactory terms for the phrases 
in personam and in rem, we shall have to deal srriatim with eight 
classifications, as follows: 1. paucital rights (or claims) an<l multital 
rights (or claims); 2. paucital privileges and multital i)rivil<'ges; 
3. paucital powers and multital powers; 4. paucital iuununities and 
multital immunities; 5. paucital no-rights and multital no-rights; 
6. paucital duties and multital duties; 7. paucital disabilities and 
multital disabilities; 8. paucital liabilities and multital liabilities. 
Each of these eight definite classifications must, for the sake of clear- 
ness, receive somewhat separate treatment. Owing, however, to limita- 
tions of space, the present article will deal chiefly with the first sub- 
division, i.e., paucital rights, or claims, and multital rights, or claims. 
As more fully shown in the former article, the word "right" is 
used generically and indiscriminately to denote any sort of legal ad- 
vantage, whether claim, privilege, power, or immunity. ^^ In its 
narrowest sense, however, the term is used as the correlative of duty ;'^ 
and, to convey this meaning, the synonym "claim" seems the best.^^ 

1* For judicial opinions recognizing the broad and generic significance of this 
term Mhen loosely used, see the authorities discussed in (1913) 23 Yale Law 
Journal, 16, 30 ff. ; see p. 36 ff., infra. 

Compare also, to similar effect, Slater, J., in Shaw v. Proffilt (1910), 57 Or., 
192, 201: 

"It is strenuously urged by defendant's counsel that, under the jdeadings in this 
case, plaintiff stands on a bare parol license, which he claims to have obtained from 
the defendant and his predecessors in interest and that, therefore, plaintiff is 
precluded from obtaining the full effect of his evidence. We do not agree with 
such restricted interpretation of the language found in the t-omplaint. It is 
averred that plaintiff obtained the 'right' as well as the 'consent, permission and 
license of defendant and his predecessors.' The word 'right' denotes, among 
other things, 'property,' 'interest,' 'power,' 'prerogative.' 'immunity,' and 'privi- 
lege,' and in law is most frequently applied t^ property in its restricted sense." 

"See (1913) 23 Yale Law Journal, 16, 31-32; see p. 38, infra. 

16 In this connection, the language of Mr. Justice Stayton. thounh not recom- 
mended for precision, may well le compared: 

"A right has been well defined to be a well-founded claim, and a wcUfounded 
claim means nothing more nor less than a claim rcco(ini:fd or secured hji law. 

"Eights which pertain to persons, other than such as are termed natural rights, 



72 FUNDAMENTAL LEGAL CONCEPTIONS 

In what follows, therefore, the term "right" will he used solely in 
that very limited sense according to which it is the correlative of duty. 
It is hoped that the meaning and importance of this needful dis- 
crimination may gain in concreteness and clearness as further details 
and examples come into view. 

It is necessary at this point to venture a preliminary explanation 
of the division or classification now before us — confessing at once that 
it represents a departure from accepted modes of statement or defini- 
tion on the part of learned authors and judges. It will then remain 
for the more detailed discussion and argument to show, if possible, 
that the currently received explanations are not only essentially faulty 
as regards analysis but also seriously misleading for the very practical 
purpose of solving legal problems as swiftly and accurately as possible. 

A paucital right, or claim (right in personam), is either a unique 
right residing in a person (or group of persons) and availing against 
a single person (or single group of persons) ;^^ or else it is one of a 
few fundamentally similar, yet separate, rights availing respectively 
against a few definite persons.^® A multital right, or claim (right in 
rem), is always one of a large class of fundamentally similar yet 
separate rights, actual and potential,^^ residing in a single person (or 
single group of persons) but availing respectively against persons 
constituting a very large and indefinite class of people.-'" 

are essentially the creatures of municipal law, written or unwritten, and it must 
necessarily be held that a right, in a legal sense, exists, when in consequence of 
given facts the law declares that one person is entitled to enforce against another 
a claim ..." MelUnger v. City of Houston (1887), 68 Tex., 37, 4.5; 3 S. W., 249, 
253. 

>7 The words ' ' group of persons ' ' are intended to cover cases of so-called 
"joint" rights and duties. [For a brief discussion of the concept of "joint 
rights," see the Introduction, supra, p. 14. — Ed.] 

18 While the word "paucital" is suggested as the generic term to cover all 
rights in personam, the word "unital" would be available to denote that particu- 
lar kind of right in personam that is "unique" and " uncompanioned. " 

19 The reasons for including the words ' ' actual and potential ' ' must be dis- 
cussed at a later time, after a general consideration of the distinction between 
"actual" and "potential" jural relations. 

20 It is not infrequently thought that the word ' ' general ' ' is both appropriate 
and available to denote those rights, or claims, that are here called "multital." 
See, e.g., Markby, Elements of Law (6th ed., 1905), sec. 165. It is submitted, 
however, that according to the best usage the term "general," as applied to a 
jural relation, indicates that the latter is one of a large class of similar relations 
residing respectively in many persons, i.e., people in general. For example, any 
duty correlating with a multital right would be a general, or common, duty. The 
right of a person not to be struck by another is both multital and general. 

This matter will receive more complete consideration at a later time. 



AS APPLIED IX JUDICIAL REASONING 73 

Probably all would agree substantially on the meaning and signifi- 
cance of a right in personam, as just explained; and it is easy to give 
a few preliminary examples: If H owes A a thousand dollars, A has 
an affirmative right in jyersonam, or paucital right, that P> shall do 
what is necessary to transfer to A the legal ownership of that amount 
of money. If, to put a contrasting situation, A already lias title to 
one thousand dollars, his rights against others in relation tiiereto are 
multital rights, or rights in rem. In the one case the money is owed 
to A ; in the other case it is owned by A.-^ If Y has contracted to work 
for X during the ensuing six months. X has an affirmative right in 
personam that Y shall render such service, as agreed. Similarly as 
regards all other contractual or (luasi-contractual rights of this ciiar- 
acter. On the other hand, there may occasionally be rights in per- 
sonam of a negative tenor or content. Thus if K, a distinguished 
opera singer, contracts with J that the former will not for the next 
three months sing at any rival opera house. J has a negative right in 
personam against K; and the latter is under a correlative negative 
duty. In this, as in other cases of rights in the sense of claims, the 
right of J is but one phase of the total relation between J and K. and 
the duty of K is another phase of the same relation. — that is. the whole 
"right — duty" relation may l)e viewed from different angles. 

In contrast to these examples are those relating to rights, or claims. 
in rem — i.e., multital rights. If A owns and occupies Whiteacre, not 
only B but also a great many other persons — not necessarily all per- 
sons'- — are under a duty, e.g., not to enter on A's land. A's right 
against B is a nuiltital right, or right in rem, for it is simply one of A's 
class of similar, though separate, rights, actual and potential, against 
very many persons. The same points apply as regards A "s right that 

-1 Compare Pollock and Maitlaiul, Hislorii of Eniilish Law (2(1 ed., 1905), Vol. 
II, p. 178. 

-- It is sometimes assumed that rights in rem (i-oiisiderod collectively) are such 
only as avail against absolutely all persons, — an idea fostered in part by the fre- 
quently used expression "against all the world." See, e.g.. Langdell, Summary of 
Equity Pleading (2d ed., 1883), sec. 184; Langdell, Brief Survey of Equity Juris- 
diction, (1887) 1 Harvard Law Review, 60; Hart. The riarc of Trust-f in Juris- 
prudence, (1912) 28 Law Quarterly Review, 290. 296; Terry, The Arrannemcnt of 
the Law, (1917) 17 Columbia Law Review, 365. 376. This notion is not warranted 
according to general usage. If, for example. A. the owner of Blackacre, has given 
his friends C and D "leave and license" to enter. A has no rights against C and D 
that they shall not enter; but he has such rights against persons in general; and 
they are clearly to be classified as being "multital" or " t» rem." 

For further phases of this matter, see ante. n. 20; post, pp. 102108. 

[Similarly, compare the rights, etc., of one wrongfully in i»osse9sion : Jeffries v. 
Great Western By. (1856), 5 E. & B.. 802; The Wiiikfield (1902). P. 42.] 



74 FUNDAMENTAL LEGAL CONCEPTIONS 

B shall not commit a battery on him, A's right that B shall not 
alienate the affections of A's wife, and A's right that B shall not 
manufacture a certain article as to which A has a so-called patent. 
Further examples of such negative"^ multital rights will readily occur 
to the reader. Numerous important instances will require detailed 
consideration from time to time. 

In spite of the formal and abstract explanations already given, and 
in spite of the concrete examples added for merely preliminary pur- 
poses, the effort to give an incisive and comprehensive appreciation 
of the conceptual and linguistic difficulties and dangers involved in 
the expressions under consideration would doubtless fail, at least as 
regards the inexperienced student, unless considerably more were done 
by way of direct discussion of common errors. That is to say, it seems 
necessary to show very concretely and definitely how, because of the 
unfortunate terminology involved, the expression ''right in rem" is 
all too frequently misconceived, and meanings attributed to it that 
could not fail to blur and befog legal thought and argument. Some 
of these loose and misleading usages will now be considered in detail, 
it being hoped that the more learned reader will remember that this 
discussion, being intended for the assistance of law school students 
more than for any other class of persons, is made more detailed and 
elementary than would otherwise be necessary. 

(a) A right in rem is not a right ''against a thing." In Hook v. 
Hoffman-* we are told by Mr. Justice Franklin, in hopeful vein, that 
"the somewhat obscure and ambiguous expression 'jus in rem,' when 
standing by itself, catches a borrowed clearness from the expression 
'jus in personam,' to which it is opposed.'*-^ This is laudable opti- 
mism ! It cannot, however, be shared by one who has, in the course of 
many years, observed not only the ways and tendencies of many 
hundreds of intelligent students, but also the not unnatural slips of 
the more learned. Any person, be he student or lawyer, unless he has 
contemplated the matter analytically and assiduously, or has been put 
on notice by books or other means, is likely, first, to translate right in 

23 As indicated by the examples given, multital rights are always constructive 
rather than consensual; that is, they and their correlating duties arise independ- 
ently of even an approximate expression of intention on the part of those con- 
cerned. This explains, no doubt, why most, if not all, of such duties are negative 
in character: it is just and politic to spread such merely negative duties broad- 
cast; whereas precisely' the opposite would be true in the case of most kinds of 
affirmative duties. 

24 (1915) 3 6 Ariz., .540. 55.5. 

25 Compare, for precisely similar language, Austin, Jurisprudence (5th ed., 
1885), Vol. II, p. 957. 



AS APPLIED IX JUDICIAL REASONING 75 

personam as a right against a prrson: and then he is almost sure to 
interpret right i)i rem, natnrally and syiiiinetrically as he thinks, as 
a right against a thing. Assuming that the division represented by 
in personam and in r( ni is intended to be mutually exclusive, it is 
plausible enough to tliink also that if a right in personam is simply a 
right against a person, a right in rem must be a right that is not 
against a person, but against a thing. That is, the expression right in 
personam, standing alone, seems to encourage the impression that there 
must be rights that are not against persons. Then, of course, such a 
supposed, though erroneous, contrast is further encouraged by the 
jjrima faeie literal meaning of the Latin phrase in rem, considered per 
se: for it cannot be assumed that the average person is acquainted with 
the peculiar history and special meaning of that phrase. Such a 
notion of rights in rem is, as already intimated, crude and fallacious; 
and it can but serve as a stumbling-block to clear thinking and exact 
expression. A man may indeed sustain close and beneficial physical 
relations to a given physical thing: he may phijsicaUij control and use 
such thing, and he may physically exclude others from any similar 
control or enjoyment. But, obviously, such purely physical relations 
could as well exist quite apart from, or occasionally in spite of. the law 
of organized society : physical relations are wholly distinct from jural 
relations.-'"' The latter take significance from the law; and, since the 
purpose of the law is to regulate the conduct of human beings, all 
jural relations must, in order to be clear and direct in their meaning, 
be predicated of such human beings. The words of able judges may 
be quoted as showing their realization of the practical importance of 
the point now being emphasized : 

1900, Mr. Chief Justice Holmes, in Tyler v. Court of Registration:-'' 

"All proceedings, like all rights, are really against persons. 
Whether they are proceedings or rights in rem depends on the number 
of persons affected."-^ 

-^ As to the prevalent and unfortunate tendency to confuse Irnal and nonlcgal 
conceptions, see the more general discussion in (191.3) 23 Yale Law Journal, 16, 
20 ff., infra, p. 27 flf. ; see also post, n. 34 and n. 90. 

27 (1900) 175 Mass., 71, 76. 

28 Compare also the following from Mr. .Justice Holmes's opinion: 

"It is true as an historical fact that these sj-mbols are used in admiralty pro- 
ceedings, and also, again merely as an historical fact, that the proceedings in nm 
have been confined to cases where certain classes of claims, although of very divers 
sorts, — for indemnification for injury, for wages, for salvage, etc., — are to be 
asserted. But a ship is not a person. It cannot do a wrong or make a contract. 
To say that a ship has committed a tort is merely a shorthand way of saying that 
you have decided to deal with it as if it had committed one, because some man has 
committed one in fact. There is no a priori reason why any other claim should not 



76 FUNDAMENTAL LEGAL CONCEPTIONS 

1905, Mr. Justice Markby, Elements of Lawr^ 

"If we attempt to translate the phrase [in rem] literally, and get 
it into our heads that a thing, because rights exist w respect of it, 
becomes a sort of juristical person, and liable to duties, we shall get 
into endless confusion. "^^ 

What is here insisted on, — i.e., that all rights in rem are against 
persons, — is not to be regarded merely as a matter of taste or prefer- 
ence for one out of several equally possible forms of statement or 
definition. Logical consistency seems to demand such a conception, 
and nothing less than that. Some concrete examples may serve to 
make this plain. Suppose that A is the owner of Blackacre and X is 
the owner of Whiteacre. Let it be assumed, further, that, in con- 
sideration of $100 actually paid by A to B,-^ the latter agrees with A 
never to enter on X's land, "Whiteacre. It is clear that A's right 

be enforced in the same way. If a claim for a wrong committed by a master may 
be enforced against all interests in the vessel, there is no juridical objection to a 
claim of title being enforced in the same way. The fact that it is not so enforced 
under existing practice affords no test of the powers of the Legislature. The 
contrary view would indicate that you really believed the fiction that a vessel had 
an independent personality as a fact behind the law." (1900) 175 Mass., 71, 77. 

29 (6th ed., 1905) sec. 165. 

30 To say that all rights, or claims, must avail against persons is, of course, 
simply another way of asserting that all duties must rest upon persons. The 
latter is no less obvious than the proposition that all rights must reside in persons. 

Compare Mr. Justice Markby, in his Elements of Law (6th ed., 1905), sec. 163: 

' ' The chief, in my opinion the only, use of a division of law into the law of 
persons and the law of things is as a convenient arrangement of topics in a* treatise 
or a code. As used for this purpose I shall speak of it hereafter. But by slightly 
changing the terms in which this classification is expressed, Blackstone has intro- 
duced an important error, which it is desirable to notice here. He speaks not of 
the law of persons and of the law of things, but of rights of persons and of rights 
of things. Eights of persons there are undoubtedly; for all rights are such. 
There may be also rights over things, and rights over persons; but rights of, that 
is, belonging to, things, as opposed to rights of, that is, belonging to, persons, 
there cannot be. ' ' 

Compare also Mr. Justice Henshaw in Western Indemnitij Co. v. PiUshury 
(1915), 170 Cal., 686, 719: 

"Again it is said that it is thought expedient that the loss by injuries to work- 
men should be borne by the industries and not by the men. But this is only a 
euphemism which obscures the facts and darkens reason. It is like other happy 
catch-phrases that deceive the mind by pleasing the ear. We have many §uch. 
'Putting the rights of property before the rights of men,' is one — as though prop- 
erty apart from those of its human owner, ever did or could have any rights. So 
that the rights of property are absolutely the rights of men. ' ' 

31 The consideration being actually paid to B, the validity of B 's promise to A 
is, of course, not subject to question merely because B was already under a similar 
duty to X. 



AS Al'PLlEI) IN JUDICIAL KEASOXIXG 77 

against 15 concerning Whiteacre is a right in personam, or pau.ital 
right; for A lias no similar and scpafate rights concerning AVhitta«r»' 
availing respectively against other persons in general. On the other 
hand, A's right against P> concerning Hlackacre is o})vi()Usly a riglit 
in rem, or niultital riglit: for it is but one of a very large nunilicr of 
fundamentally similar (though separate) rights which A has respec- 
tively against B, C, I). E, F, and a great many other persons. It 
must now be evident, also, that A's Blackacre right against H is, 
intrinsi(aUij considered, of the same general character as A's White- 
acre right against B. The Blackacre right differs, so to say. only 
extrinsic ally, that is, in having many fundamentally similar. 1 hough 
distinct, rights as its ''companions." So, in general, we might say 
that a right in personam is one having few, if any, ''companions"; 
v.'hereas a right in rem always has many such "companions." 

If, then, the Whiteacre right, being a right in p( rsonam, is recog- 
nized as a right against a person, must not the Blackacre right also, 
being, point for point, intrinsically of the same general nature, be 
conceded to be a riglit against a person? If not that, what is it ? How 
can it be apprehended, or described, or delimited at all ? 

If it be said that, as regards Blackacre, A has besides his rights, or 
claims, against B, C, D, E, and others, various legal privileges of con- 
trolling and using the land, and that these exist "to, over, or 
against" the land, one answer might be that as regards Whiteacre 
also A has similar privileges against B, C, D, E and all others except- 
ing X, the true owner. But the really relevant and paramount reply 
at this point is that we are now dealing only with multital rights, or 
claims, and not with multital privileges. The latter will recpiire atten- 
tion in a later part of the discussion.'- It may, however, even at this 
point be incidentally noticed that the general tendeney to "confuse" 
or "blend" legal privileges with legal rights, or claims, has doubtless 
contributed greatly to the hazy conception of a right in r< ni as a right 
to, over, or against a thing. 

For the reasons already given the following i)assages from legal 
treatises and judicial opinions seem open to (piestion in one or more 
particulars : 

1874, Mr. Stephen Martin Leake, Law of Properfg in Land: 

"Jurisprudence distinguishes Rights. nsin<f the t(M-m //( fJn sfrict 
legal meaning, into the two classes of Kights fo Things and Rights 
against P< rsons, familiarly known in the civil law by the terms jnra in 
rem and jnra in p< rsonam. 

"Rights to things, jura in rem, have for their subject some matfrial 



32 See post, i.p. 06-101. 



78 FUNDAMENTAL LEGAL CONCEPTIONS 

thing, as land or goods, which the owner may use or dispose of in any 
manner he pleases within the limits prescribed by the terms of his 
right. A right of this kind imports in all persons generally the cor- 
relative negative duty of abstaining from any interference with the 
exercise of it by the owner; and by enforcing this duty the law pro- 
■tecfs and establishes the right. But a right of this kind does not 
import any positive duty in any determinate person, or require any 
act or intervention of such person for its exercise and enjoyment. 

"Eights against persons, jura in personam, on the other hand, have 
for their subject an act or performance of some certain determinate 
person, as the payment of money, the delivery of goods and the like. 
A right of this kind imports the correlative positive legal duty in the 
determinate person to act in the manner prescribed. It depends for 
its exercise or enjoyment upon the performance of that duty, and is 
secured by the legal remedies provided for a breach of perform- 
ance. , . . 

"Rights to things, jura in rem, vary and are distinguished accord- 
ing to the things or material subjects in the use or disposal of which 
the right consists."'^ 

The learned author, whose book is well known to law students and 
highly valued for its general clearness and accuracy, has been unfortu- 
nate in treating "in rem" as if it meant "to a thing"; and it would 
seem that he was influenced to do this, partly at least, as a result of 
confusing legal privileges and legal rights. More than that, this first 
error has led to an additional one : that of conveying the impression 
that all rights in rem (multital' rights), in order to be such, must relate 
to a material thing. Such a limitation would exclude not only many 
rights in rem, or multital rights, relating to persons, but also those 
constituting elements of patent interests, copyright interests, etc. 
Finally the learned author falls into the error of asserting that all 
rights in personam are affirmative in character; whereas they may 
occasionally be negative, as heretofore seen. 

1916, Professor Joseph Henry Beale, Treatise on Conflict of Laws: 

"The nature of rights. — The primary purpose of law being the 
creation of rights, and the chief task of the Conflict of Laws to deter- 
mine the place where a right arose and the law that created it, a more 
careful study of the nature of rights is, of course, desirable before the 
examination of actual cases of conflict is begun. . . . 

"Since we are fortunate enough to have different words for these 
ideas [law and rights] it is all the more necessary that we should 
fully understand each of them. 

"A right may be defined as a legally recognized interest in, to, or 
against a person or a thing. "^^ 

"■i Laiv of Property in Land (1st ed., 1874), pp. 1, 2. 

31 Beale, Treatise on Conflict of Laws (1916), see. 139. All -will agree with 
Professor Beale that, for accurate thinking and correct results in the conflict of 
laws, it is of vital importance to have sound and consistent conceptions of legal 



AS APPLIED IN JUDICIAL REASOXIXG 79 

1903, Mr. Herbert Thorndyke Tiffany, Modern Law of Etal Prop- 
erty : 

"Powers of attorney, by wbicb one person is nominated as an agent 
to make a transfer or do some otlier aet in the name and stead of the 
principal, are sometimes spoken of as commondaw powers. Such an 
authority', however, while it did exist as common law. is cntinly differ- 
ent from the powers here considered (i.e., powers of appointment), 

rights and other jural relations; and it is evident that, pursuant to this idea, much 
of the learned author 's reasoning and very many of his arguments and conclusions 
on specific i>roblenis in the (onflict of laws have, very naturally, lieen directly based 
on his "preliminary survey" of "rights" and on his supposed distinction between 
what he calls "static rights" and what he calls "dynamic rights." 

Yet it may be doubted whether Professor Beale has made clear and consistent 
his conception of a so-called "static right" as "a legally recognized interest in, to, 
or against a person or a thing"; and thus one is forced the more to question the 
validity of many of his arguments and conclusions in the closely related fields of 
jurisprudence and conflict of laws. 

At one time the "static right" seems to be a purely factual "interest" 
existing independently of Jaw; at another time a relation "created by laiv." The 
former idea is suggested when the learned author refers to Gareis's definition of 
"interests." This appears very clearly not only from the intrinsic meaning of 
Gareis's language as quoted by Professor Beale, but also from certain introductory 
words which are to be found in Gareis's original work: "Interests, considered as 
facts, arise directly from egoism, and are nothing other than subjectively perceived 
relations," etc. See Gareis^ Systematic Survey (Kocourek's translation), p. 31. 
Indeed, Professor Beale himself, in the very definition quoted in the text of the 
present article, defines "a right" as an "interest," not as some legal relation 
protecting the interest: there is a very obvious difference — and one vitally impor- 
tant for the solution of problems in the conflict of laws — between a mere factual 
interest and its legal recognition (legal claims, privileges, etc.). 

In sec. 141, however, we find the following: 

"A static right, or as it is commonly called a vested interest, is a legally pro- 
tected interest in a person or thing. Such an interest is one which continues 
indefinitely, and protection of it therefore requires a right which, like the interest 
it protects, has the character of permanence. Accordingly a static right remains in 
existence until either the subject of the interest ceases to exist or the law itself by 
a special act puts an end to the right." 

In this passage we are told first, that a "static right'' is an interest: second, 
that the "right" is something other than "the interest it protects"; /?iir<7. that 
"a static right remains in existence until . . . the law itself . . . puts an end to 
the right. ' ' 

A similar sudden and difficult shift seems to occur in see. 142. Thus: 

"A static right, as has been seen, is the interest of a person in a thing or in a 
person; the right is created by law, and once created it is permanent, that is. it 
persists until the proper law puts an end to it. The law that creates it, as will be 
seen, also provides for its preservation, by creating a hedge of protecting rights 
about it; rights of the owner or possessor to have it free from interference or 
destruction. . . . It is to be regarded as a legal entit;/ quite apart from the particu- 
lar protection with which it may be endued by law.'' 



80 FUNDAMENTAL LEGAL CONCEPTIONS 

since it is merely an agency in the person to whom the power is given, 
authorizing him to execute an instrument of conveyance or to do some 
other act in the place and stead of his principal, the title passing, not 
by the power of attorney, but by the conveyance subsequently made, 
which is regarded as made by the principal. A power of attorney 
creates merely a contractual relation, — rights in personam, — as does 
any other contract of agency ; while a power, such as we here treat of, 
involving dominion over land to a greater or less extent, creates in the 
person to whom the power is given rights in rem of a proprietary 
character. ' '^^ 

The exact meaning of the learned author is not evident ; but it seems 
clear that the power of an agent to convey "Whiteacre is not intrin- 
sically different, so long as it endures, from a power to convey White- 
acre in exercise of a so-called power of appointment. It is true that 
the agent is subject to a liability of having his power "revoked" or 
divested by the principal, whereas the power of appointment is subject 
to no similar liability at the hands of anyone. But this difference, 
conceding its great importance is, of course, not accurately expressed 
by asserting that the power of attorney creates rights in personam, 
"merely a contractual relation," and the power of appointment 
"creates in the person to whom the power is given rights in rem of a 
proprietary character." In truth the creation of a power of agency 
does not necessarily involve any contract rights against the principal 
or anyone else.'" The fact seems to be that the greater "staying" 
quality of the power of appointment (as compared with the power 
of agency) has suggested to the author greater "adhesiveness" or 
"thingness," and hence caused the inappropriate terms now under 
review. Further critical consideration of the last-quoted passage will 
'he desirable in connection with the subject of immunities in personam 
and immunities in rem. 

1828, Sir Thomas Plumer, M.R., in Dearie v. Hall: 

"They say, that they were not bound to give notice to the trustees; 
for that notice does not form part of the necessary conveyance of an 
equitable interest. I admit, that, if you mean to rely on contract with 
the individual, you do not need to give notice ; from the moment of 
the contract, he, with whom you are dealing, is personally bound. 
But if you mean to go further, and to make your right attach upon the 
thing which is the subject of the contract, it is necessary to give 
notice ; and, unless notice is given, you do not do that which is essen- 
tial in all cases of transfer of personal property. . . . Notice, then, is 
necessary to perfect the title. — to give a complete right in rem. and 
not merely a right as against him who conveys his interest. ' '^' 

35 Modern Law of Beat Property (1903), sec. 273. 
SGSee Huffcut, Agency (2d ed., 1901), see. 10. 
37 (1828) 3 Euss., 1, 22, 24. 



AS Ai'i'Lir^r* IN .irDirrAT. keasoxixg si 

This passage from Dnnif v. Hall will iv(|uii-i' turtlnT tivatnu'iit in 
connection \v\\\\ tlic suhjcet of immunities in pcrsnuitm ami immiuiities 
in rem. 
• 1857, ^Ir. Justice Cutting, in lidlimjton v. Fryi : 

''But a sul)-eontractor has no claim against the owner of the 
propo-hj — liis claim is only against tlie propfrtg (in rem), and tli<' 
person and property of his employer {in personam).''''* 

The preceding quotations from legal treatises and judicial opinions 
have been presented, as is evident, for the purpose of exemplifying 
the less careful and exact use of terms tliat we sometimes find, and 
for the further purpose of indicating the confusion of thought that is 
likely to result in such cases. Over against these will now l>e con- 
sidered various passages from legal treatises and judicial opinions 
exemplifying more precise modes of thought and expression. It is 
desirable to begin with Austin; for his work on Jurisprinh n< e was 
the first to give prominence to the terms right //( r< m and right in pi r- 
sonam among English-speaking lawyers and authors, and his language 
has become classical in its importance : 

1832, Professor John Austin. Lectures on Jurisprudence or The 
Philosophy of Positive Law: 

"The distinction between Rights which T shall presently endeavour 
to explain, is that all-])erva(ling and important distinction whieh has 
been assumed by the Roman Institutional AVriters as the main ground- 
work of their arrangement : namely, the distinction between rigiits 
in rem and rights in personam: or rights which avail against persons 
generally or universally, and rights which avail exclusively against 
certain or determinate persons.'' ' 

3S (1857) 43 Me., 578, 587. 

39 The pair of terms, "jus i» per.'ionam" and "./».? in rem" as contrasted with 
the pair of terms, "actio in j^cr.iO)iam" and "actio in rem," was not in general 
use among the Eoman jurists. Compare Clark, Historji of Roman Law: Juruspni- 
denee, Vol. II, p. 711 : " Ju.s in rem and Jus in re in Roman Law. The former of 
these expressions is very little used by the Roman Jurists, hut. in the few pa.<*sage3 
in whieh is occurs, res clearly means the thing itself as distinguished, e.g., from" ita 
value. (See Ulpian, Dig., .32, 20. Xulhim ijuidrm jus iu ip.'iam retn habere, sed 
actionem de pretio. Cf. Goudsmit, 247 u.) " 

It is clear, therefore, that the "all-pervading and inijiortant " Roman law dis- 
tinction to which Austin refers was that represented by ohlifwtio and dominium. 
Compare Austin, Jurisprudence (5th ed., 1SS5), Vol. T. p. .38.3: " By ju.t in rem and 
jus in personatn, the authors of those terms intended to indicate this broad and 
simple distinction; which the Roman lawyers also marked by the words dominium 
and oblifiatio — terms the distinction between which was the groundwork of all their 
attempts to arrange rights and duties in an a<'curate or scientific manner." Also 
Austin, Jurisprudence, Vol. II, p. 773: "The first great distinction among primary 
rights has been very fully explained in a preceding part of this Course. I allude to 



82 FUNDAMENTAL LEGAL CONCEPTIONS 

"The terms ^jus in rem' and 'jus in personam' were devised by 
the Civilians of the Middle Ages, or arose in times still more 
recent. . . . 

''The phrase in rem denotes the compass, and not the subject of the 
right. It denotes that the right in question avails against persons 
generally ; and not that the right in question is a right over a thing. 
For, as I shall show hereafter, many of the rights, which are jura or 
rights in rem, are either rights over, or to, persons, or have no subject 
(person or thing). 

"The phrase in personam is an elliptical or abridged expression for 
'in personam certam sive determinatam. ' Like the phrase in rem, it 
denotes the compass of the right. It denotes that the right avails 
exclusively against a determinate person, or against determinate 
persons. "*" 

Additional explanations of ideas and terms and further instructive 
examples of usage are to be found in the following utterances of able 
judges : 

1871, Mr. Justice Markby, Elements of Law: 

"The term 'right in rem' is a very peculiar one; translated literally 
it would mean nothing. The use of it in conjunction with the term 
'in personam' as the basis of a classification of actions in the Roman 
law has been explained above, and its meaning will be further illus- 
trated by two passages in the Digest of Justinian. In Book iv. tit. 2. 
sec. 9, the rule of law is referred to — that what is done under the 
influence of fear should not be binding: and commenting on this it 
is remarked, that the lawgiver speaks here generally and 'in rem,' 
and does not specify any particular kind of persons who cause the 
fear; and that therefore the rule of law applies, whoever the person 
may be. Again, in Book xliv. tit. 4. sec. 2, it is laid down that, in what 
we should call a plea of fraud, it must be specially stated whose fraud 
is complained of, 'and not in rem.' On the other hand, it is pointed 
out that, if it is shown whose fraud is complained of, it is sufficient; 
and it need not be said whom the fraud was intended to injure ; for 
(says the author of the Digest) the allegation that the transaction 
is void, by reason of the fraud of the person named, is made 'in rem.' 
In all these three cases 'in rem' is used as an adverb, and I think we 
should express as nearly as possible its exact equivalent, if we sub- 
stituted for it the English word 'generally.' In the phrase 'right in 
rem' it is used as an adjective, and the equivalent English expression 
would be a ' general right ' ; but a more explicit phrase is a ' right 
availing against the world at large': and if this, which is the true 
meaning of the phrase 'right in rem,' be carefully remembered, 
no mistake need occur. "*^ 

the distinction between dominia and obligationes, as they were called by the classi- 
cal jurists; between jura in rem and jura in personam, as they have been styled by 
modern Civilians. ' ' 

io Jurisprudence (5th ed., 1885), Vol. I, pp. 369, 370. 

ii Elements of Laic (6th ed., 1905), sec. 165. 



AS API'LIKI) IX .U'DICIAL REA^oNTXG g3 

1883, Mr. Justice .Mulk.'y. in U'., St. L. d- P. Rij. Co. v. Shacklct: 

"One of the primary rifjhi.'i of the citizen, sanctioned by the positive 
law of the State, is security to life and limb, and indemnity against 
personal injuries occasioned by the negligence, fraud or violence of 
others. This is a right which avails aijainst all />o-so«.s- whomsoever, 
and is distinguished from a right which avails against a particular 
individual or a determinate class of persons. The former is called a 
right in rem, the latter a right in personam. The foniK-r class of 
rights exists independently of contract; the latter frciiucutly arises 
out of contract. . . . 

"So in the present case, appellee's intestate had a right in nm, or 
a general right, which entitled him, if free from fault himself, to be 
protected and indemnified against injuries resulting from the negli- 
gence of all persons whomsoever, including the appellant. . . . "*- 

1886, Mr. Justice Holmes, in Hogan v. Barry: 

"There is no doubt that an easement may be created by words 
sounding in covenant. Bronson v. Coffin, 108 Mass., 175, 180. If the 
seeming covenant is for a present enjoyment of a nature recognized by 
the law as capable of being conveyed and made an easement, — capable, 
that is to say, of being treated as a jus in rem, and as not merely the 
subject of a personal undertaking, — and if the deed discloses that the 
covenant is for the benefit of adjoining land conveyed at the same 
time, the covenant mnst be construed as a grant, and, as is said in 
Plowden, 308, 'the phrase of speech amounts to the effect to vest a 
present property in you.' An easement will be created and attaclied 
to the land conveyed, and will pass ^nth it to assigns, whether men- 
tioned in the grant or not. "^^ 

1903.. Mr. Justice Holmes, in International Postal Supply Co. v. 
Bruce: 

"As the United States could not be made a party the suit failed. 
In the case at bar the United States is not the owner of the machines, 
it is true, but it is a lessee in possession, for a term which has not 
expired. It has a property, a right in rem, in the machines, which, 
though less extensive than absolute ownership, has the same incident 
of a right to use thera while it lasts. "^^ 

1904, Mr. Justice Holmes, in Baltimore Shipbuilding Co. v, Balti- 
more : 

"In the next place, as to the interest of the United States in the 
land. This is a mere condition subsequent. Tht're is no easement or 
present right in rem. The obligation to keep up the dock atul to allow 
the United States to use it carries active duties and is purely per- 
sonal. . . . The United States has no present right to the land, but 
merely a personal claim against the corporation, reinforced by a 
condition."*'" 



42 (1883) 105 111., 364, 379. « (1903) 194 U. S., 601, 606. 

" (1886) 143 Mass., 538. ■'s (1904) 195 U. 8., 375, .382. 



84 FUNDAMENTAL LEGAL CONCEPTIONS 

1905, Mr. Justice Holmes, in Muhlker v. Harlem R. R. Co.: 

"What the plaintiff claims is really property, a right in rem. It 
is called contraet merely to bring it within the contract clause of the 
Constitution. "*« 

1913, Viscount Haldane, Lord Chancellor, in Atteriborough v. 
Solomon: 

''But the question which goes to the root of this case is one which 
renders such a proposition wholly beside the point. If I am right, 
there is no question here of an executor acting in the execution of his 
powers, so far as this residue is concerned. The executors had long 
ago lost their vested right of property as executors and become, so 
far as the title to it was concerned, trustees under the will. Executors 
they remained, but they were executors who had become divested, by 
their assent to the dispositions of the will, of the property which was 
theirs virtute officii; and their right in rem, their title of property, had 
been transformed into a right in personam, — a right to get the prop- 
erty back by proper proceedings against those in whom the property 
should be vested if it turned out that they required it for payment of 
debts for which they had made no provision."*^ 

1914, Viscount Haldane, Lord Chancellor, in Sinclair v. Brougham: 

The difficulty of establishing a title in rem in this case arises from 
the apparent difficulty of following money. In most cases money 
cannot be followed. When sovereigns or bank notes are paid over as 
currency, so far as the payer is concerned, they cease ipso facto to be 
the subjects of specific title as chattels. If a sovereign or bank note 
be offered in payment it is, under ordinary circumstances, no part of 
the duty of the person receiving it to inquire into title. The reason of 
this is that chattels of such a kind form part of what the law recog- 
nizes as currency, and treats as passing from hand to hand in point, 
not merely of possession, but of property. It would cause great incon- 
venience to commerce if in this class of chattel an exception were not 
made to the general requirement of the law as to title. . . . 

' ' That seems to be, so far as the doctrine of the common law is con- 
cerned, the limit to w^hich the exception to the rule about currency 
was carried; whether the case be that of a thief or of a fraudulent 
broker, or of money paid under mistake of fact, you can, even at law, 
follow, but only so long as the relation of debtor and creditor has not 
superseded the right in rem."^^ 

1914, Lord Sumner, in Sinclair v. Brougham: 

"Analogous cases have been decided with regard to chattels. They 
differ, no doubt, because of the fact that the property in the chattels 
remained unchanged, though identification and even identity of the 
subject-matter of the property failed, whereas here, except as to cur- 
rency, and even there only in a restricted sense, the term property, as 
we use that term of chattels, does not apply, and, at least as far as 

40 (1905) 197 U. S., 544, 575. 48 [1914] A. C, 398, 418, 419. 
47 [1913] A. C, 76, 85. 



AS APPLIED IX JUDICIAL KEASOXING 85 

intention could do it. both depositors and sliart'lioldcrs had given up 
the right to call tlie money or its proceeds their own, and had taken 
instead personal claims on the society."*® 

1916, Mr. Justice Brandeis, in Knjgcr v. ^yilson: 

"If the plaintiff in error had not submitted himself to the juris- 
diction of the court, the decree could have determined only the title 
to the land, and would have left him free to assert any personal rights 
he may have had under the contract."''" 

(b) A multital rigid or claim {right in rtm), is not always one 
relating to a thing, i.e., a tangible object: If the preceding discussion 
has served its various purposes, it must now be rea.sonably clear that 
the attempt to conceive of a right in rem as a right against a thing 
should be abandoned as intrinsically unsound, as thoroughly discredited 
according to good usage, and, finally, as all too likely to confuse and 
mislead. It is desirable, next, to emphasize, in more specific and direct 
form, another important point which has already been incidentally 
noticed : that a right in rem is not necessarily one relating to, or con- 
cerning, a thing, i.e., a tangible object. Such an assumption, although 
made by Leake and by many others who have given little or no atten- 
tion to fundamental legal conceptions, is clearly erroneous. The term 
right in rem (multital right) is so generic in its denotation as to 
include: 1. Multital rights, or claims, relating to a definite tangible 
object: e.g., a landowner's right that any ordinary person shall not 
enter on his land, or a chattel owner's right that any ordinary person 
shall not physically harm the object involved, — be it horse, watch, 
book, etc. 2. Multital rights (or claims) relating neither to definite 
tangible object nor to (tangible) person, e.g., a patentee's right, or 
claim, that any ordinary person shall not manufacture articles covered 
by the patent; 3. Multital rights, or claims, relating to the holder's 
own person, e.g., his right that any ordinary person shall not strike 
him, or that any ordinary person shall not restrain his physical liberty, 
i.e., "falsely imprison" him; 4. ]\Iultital rights residing in a given 
person and relating to another person, e.g.. the right of a father that 
his daughter shall not be seduced, or the right of a husband that harm 
shall not be inflicted on his wife so as to deprive him of her company 
and assistance; 5. ]\Iultital rights, or claims, not relating directly to 
either a (tangible) person or a tangible object, e.g., a per-son's right 
that another shall not publish a libel of him. or a person's right that 
another shall not publish his picture.-^the so-called "right of privacy" 
existing in some states, but not in all. 



•in [3914] A. C, 308, 4.58. 

to (1916) 242 U. 8., ]7], ]77; .{7 Sup. Ct. Rep., 34, 35. 



86 FUNDAMENTAL LEGAL CONCEPTIONS 

It is thus seen that some rights in rem, or multital rights, relate 
fairly directly to physical objects; some fairly directly to persons; 
and some fairly directly neither to tangible objects nor to persons. 

It is, however, important to observe that there is a more specific 
Latin term, jus in re, which has been frequently used by able judges 
to indicate jural relations in i'em (i.e., multital rights, privileges, 
powers, and immunities) directly concerning a tangible object, such 
as a piece of land, a vessel, etc. This form of expression appears to 
have been used by the classical Roman jurists almost exclusively in 
the more specific combination, jus in re aliena (easements, profits, 
etc.), as contrasted with jus in re propria; but the more generic jus in 
re was freely employed by the modern civilians, — especially in oppo- 
sition to a particular kind of jus in personam called jus ad rem.^^ 
The following explanations and examples of modern usage by able 
judges are worthy of careful and critical consideration : 

1871, Mr. Justice Markby, Elements of Laiv: 

" It is necessary to distinguish carefully between a right in rem and 
a (so-called) real right. A real right is a right over a specific thing 
(a jus in re, as will be explained hereafter). Thus a right of owner- 
ship is a real right; it is also a right in rem. But a right to personal 
safety is not a real right, though it is a right in rem."^^ 

1914, Lord Dunedin, in Sinclair v. Brougham: 

"The case of a chattel is easy: A shopkeeper delivers an article at 
the house of B in mistake for the house of A. An action would lie 
against B for restitution. Such an action could easily be founded on 
the right of property. To use the Roman phraseology, there would be 
a jus in re. And where there was a jus in re there would not be, I 
take it, any difficulty in finding a form of common law action to fit 
the situation. But the moment you come to deal with what in Roman 
phraseology is called a fungible, and especially when you deal with 
money, then the jus in re may disappear, and with it the appropriate- 
ness of such common law action. The familiar case is the paying of 
money by A to B under the mistaken impression in fact that a debt 
was due, when in truth there was no debt due. It was to fit cases of 
this sort that the common law evolved the action for money had and 
received. "^^ 

51 That is, if A has a right in personam against B that the latter shall "trans- 
fer" some "legal interest," e.g., title of Blackacre, to A, A is said to have only 
a jus ad rem; whereas after conveyance made by B, A would have jus in re. 

For very interesting instances of the nse of the terms jus in re and jus ad rem 
in connection with attempts to explain the nature of tises and trusts, see Bacon, 
Uses (circa 1602), Eowe's ed., pp. 5-6; and Co. Lit. (1628), p. 272 b. 

Both of these passages are quoted in (1913) 23 Yale Law Journal, 16, notes 1 
and 2, supra, p. 23. 

52 Elements of Law (6th ed., 1905), 99, note. 

53 []9]4] A. C, 398, 431. 



A8 APPLIED IX .ICDICIAL REASONING t? 

1914, Lord Kinnear. in Bank of Scotland v. MacUod: 

''But to extend Lord Wcstluii-N's ])lirase so as to make it c-ovt-r 
personal obliijations wliieli do not altect the vtal rifjht of the oldi^or 
seems to me altogetlier extravagant. It was maintained in arguiiieiit 
that every obligation with reference to any property or fund whieli 
involves a liability to account fell within the principle. If that were 
so every imperfect security, however invalid as a rud right, would be 
effectual as a trust. ' '-'* 

1855, Mr. Justice B. R. Curtis, in The Young Michanic: 

"But I will first inquire what right or interest is conferred by the 
statute, provided it intended to create such a lien as exists by the 
general admiralty laAv upon foreign vessels. 

"Though the nature of admiralty liens has doubtless been long 
understood, it does not seem to have been descril>ed with fulness and 
precision, in p]ngland or this country. That it ditfers from what is 
called by the same name in the connnon law, is clear; for it exists 
independent of possession. TJk Bold Biudcugh, 22 Eng. L. & E(i. 62; 
The Nestor, 1 Sumn. 73. That it is not identical with e(|uitable liens, 
is equally clear; for the latter arise out of constructive trusts, and are 
neither a jus ad rem, or a jus in re; but simply a duty, binding on the 
conscience of the owner of the thing, and which a Court of E<|uity 
will compel him specifically to perform. 2 Story's Eej. Jurisp. § 1217 ; 
Ex parte Foster, 2 Storv, R. 145; Clarke v. Southwick, 1 Curtis, 
299. ... 

*'In my opinion the delinition given liy Potliier of an hypotlnH-ation 
is an accurate description of a maritime lien under our law. "The 
right which a creditor has in a thing of another, which right consists 
in the power to cause that thing to be sold, in order to have the debt 
paid out of the price. This is a right in the thing, a jus in re.' Traitc 
de VHypothequc, art. prelim. See also, Sanders's Justinian, page 
227. . . . 

"Whether he can make the seizure himself, only to lie followed by 
a judicial sale, or must resort to a court for both, may be important 
as to remedy, but does not affect bis ultimate and essential right. . . . 

"Though tacitly created by the law, and to be exeeuted only liy the 
aid of a court of justice, and resulting in a juilicial sale, it is as really 
a property in the thing as the right of a pledgee or the lien of a bailee 
for work. The distinction between a jus in re and a jus ad n )n was 
familiar to lawyers of the Middle Ages, and is said then to have first 
come into practical use, as the basis of the ilivision of rights into real 
and personal. Sanders's Intro, to Just., p. 49. A jus in re is a right, 
or property in a thing, valid as against all mankind. A jus ad r< ni is 
a valid claim on one or more persons to do something, by force of 
which a jus in re Avill be acquired. Pothier, Traid' du Droit de 
Domaine, ch. Pretences; Hugo, Tlis. <lu Droit Ix'om., vol. 1, p. IIS. . . . 

"My opinion is, that the lien conferred by the local law was an 
existing incumbrance on the ve.ssel, not divested or extinguished hy 



54 [1914] A. C, 311, 324. 



88 FUNDAMENTAL LEGAL CONCEPTIONS 

the death or insolvency of the owner; and that, consequently, the 
decree of the District Court must be affirmed."^'' 

1900, Mr. Chief Justice Fuller, in The Carlos F. Roses: , 

' ' The right of capture acts on the proprietary interest of the thing 
captured at the time of the capture and is not affected by the secret 
liens or private engagements of the parties. Hence the prize courts 
have rejected in its favor the lien of bottomry bonds, of mortgages, for 
supplies, and of bills of lading. The assignment of bills of lading 
transfers the jus ad rem, but not necessarily the jus in rem. The jus 
in re or in rem implies the absolute dominion, — the ownership inde- 
pendently of any particular relation wdth another person. The jus 
ad rem has for its foundation an obligation incurred by another. 
Sand. Inst. Just. Introd., xlviii ; 2 Marcade, Expl. du Code Napoleon, 
350; 2 Bouvier (Rawle's Revision), 73; The Young Mechanic, 2 
Curtis, 404. 

"Claimants did not obtain the jus in rem, and, according to the 
great weight of authority, the right of capture was superior. ' '^^ 

1870, Mr. Justice Foster, in Jacobs v. Knapp: 

"That statute provides that 'any person who labors at cutting, 
hauling, or drawing wood, bark, logs, or lumber, shall have a lien 
thereon for his personal services, which lien shall take precedence of 
all other claims except liens on account of public taxes, to continue 
sixty days after the services are performed, and may be secured by 
attachment. ' 

' ' At the common law the lien of a mechanic, manufacturer, or other 
laborer 'is neither a jus ad rem nor a jus in re: that is to say, it is not 
a right of property in the thing itself, or a right of action to the thing 
itself; but it is a security, derived from a 'general principle of the 
common law, which gives to a man who has the lawful possession of 
a thing and has expended his money or his labor upon it, at the request 
of the owner, a right to retain it until his demand is satisfied.' . . . 

"A lien, as we have seen, is a personal right, as well as an interest 
which can only be created by the owner, or by his authority. If 
Fifield, by virtue of his contract with the defendants, had a lien upon 
the wood, the plaintiff could acquire no lien upon the property through 
him. The plaintiff, as a creditor of Fifield, could not attach and hold, 
as against the owner, at the common law, the property in which Fifield 
had but the qualified interest of a pledgee. Lovett v. Broivn, 40 N. H., 
511. Neither is a lien for the price of labor performed on an article 
assignable. Bradley v. Spofford, 23 N. H., 447. . . . 

"The statutes of liens have enlarged the privileges of the party who, 
at common law, could only as bailee avail himself of the lien, by sub- 
stituting, in the enumerated cases, attachment of the property for 
retention of possession; but it would be quite anomalous to regard 
this process of attachment as applying in favor of a stranger against 

55 (1855) 2 Curtis, 404, 406, 410, 411, 412, 414. 

56 (1900) 177 U. S., 655, 666. 



AS APPLIED IX JUDICIAL REASONING 89 

a party with whom the phiintiff never eontracted. and who could in 
no proper sense be regarded as an attaching crrditor. . . . "^' 

The passage from Mr. Justice Foster — the last of the above ([nota- 
tions — seems open to comment. If at common law the lien of tiie 
mechanic, manufacturer or other laborer consists of the "right to 
retain" the "thing" in his possession or. to use ^Ir. Justice Foster's 
own later and more discriminating term, a "privilege" of retaining 
possession, this is certainly a '^ privilege" relating to a "thing." 
More than that, such privileges are multital privileges, or privileges 
in rem, existing not only against the (Jwner of the chattel but also 
against all persons in general, and correlating with no-rights in the 
latter. These multital privileges relate directly to the physical 
"thing" ; and they are "rights" in the very broad sense of that term. 
It is difficult, therefore, to see why the term jus in re should not be 
applicable. For the latter term does not seem to be confined to rights 
in the sense of elaims, this being shown by the above-quoted opinion 
of Mr. Justice Curtis, whose characterization of common-law liens is 
opposed to that of Mr. Justice Foster. It is also clear that the lienor 
has, by virtue of his possession j^er se, rights //; rem against all others 
that they shall not disturl) that possession or harm the object posses.sed. 
These last are rights or claims literally relating to the thing; and, 
therefore, so far at least as the literal meaning of jus in re is concerned 
there seems to be no reason why the latter expression should not be 
applied. It is true that if the lienor were to surrender possession he 
would thereby elivest himself of his privilege (against the owner) and 
his rights, or claims, against the owner and others; but while those 
relations exist they concern the thing, and that fact is obviously not 
negatived by the possibility of their being divested. 

The passage last quoted from 'Mr. Justice ]\Iarkl)y and also the 
extracts from the opinions of Lord Kinnear and !Mr. Justice Curtis 
show that those rights in rem which directly relate to ttiings — land. 
vessels, etc. — instead of being called jus in re are occasionally denomi- 
nated ''real" — a term meaning literally, of course, "relating to a 
thing." "Reed rights" in this sense are opposed to rights /;} personam 
relating to things. Thus, e.g., if A is owner of a horse, he has jus in re 
or "real rights"; if, on the other hand. X is under contract lo transfer 
the ownership of a horse to A, the latter has that sort of right in 
personam which would sometimes be called jus ad rem, or ''personal 
right." In the restricted sense now referred to. it seems clear that 
real rights as a class also exclude both rights in per.'^onam and rigiit.s 



C7 (1870) 50 N. IL, 71, 75, 



90 FUNDAMENTAL LEGAL CONCEPTIONS 

?n rem that do not relate directly to things, or tangible objects. The 
following passages may be considered with advantage : 

1914, Professor E. C. Clark, History of Roman Law: Jurisprudence: 

"Jura realia and personalia are expressions occasionally used by 
modern civilians as adjectival forms for jura in rem and in personam, 
but only as confined to Property Law. [E.g., the translator of 
Mackeldey, Pr. ii. § 15. Austin {T. and iV. ii. 5, pp. 977, 978 ; St. Note 
on Lect. 14, p. 184) identifies the pairs without the above qualifica- 
tion.] This at least seems to be the meaning given by Savigny to jura 
realia, if represented by the corresponding German dingliche Rechte. 
[System, 1, § 56, p. 369. Alle mogliche Rechte an Sachen . . . fassen 
wir unter dem gemeinsamen Namen der dinglichen Rechte zusam- 
men.] "^* 

1855, Mr. Justice B. R. Curtis, in The Young Mechanic: 

"The distinction between a jus in re and a jus ad rem was familiar 
to lawyers of the ^Middle Ages, and is said then to have first come into 
practical use, as the basis of the division of rights into real and per- 
sonal. Sanders's Intro, to Just. p. 49. A jus in re is a right, or prop- 
erty in a thing, valid as against all mankind. A jus ad rem is a valid 
claim on one or more persons to do something, by force of which a 
jus in re will be acquired. Pothier, Traite du Droit de Domaine, ch. 
Pretences; Hugo, His. du Droit Rom. vol. 1, p. 118."^^ 

1914, Lord Kinuear, in Bank of Scotland v. Macleod: 

"But to extend Lord Westbury's phrase so as to make It cover 
personal oMigations which do not affect the real right of the obligor 
seems to me altogether extravagant. It was maintained in argument 
that every obligation Avith reference to any property or fund which 
involves a liability to account fell within the principle. If that were 
so every imperfect security, however invalid as a real right, would be 
effectual as a trust. ' '^° 

Even when restricted as above indicated, the pair of terms, "real" 
and "personal," seems an undesirable one for English-speaking 
lawyers and judges because those words are already definitely appro- 
priated to different and independent classifications and are constantly 
applied in connection with the latter. Thus, e.g., we have "real 
property" and "personal property"; and this classification is obvi- 
ously not parallel with that of "real rights" and "personal rights" — 
both of the latter terms being applicable either to "personal property "^ 
relations or to "real property" relations. Then, too, the expression 
"personal rights" is especially misleading in its connotation because, 
literally, it tends to suggest rights concerning a person as the object 

^s History of Eoman Law: Jurisprudence (1914), Vol. II, ]). 71S. 

59 (18.55) 2 Curtis, 404, 412. 

60 [1914J A. C, 311, 324. 



AS APPIJED IX .TTDICIAL REASOXIXG 91 

to whic'li the rights reUiti*. that is, citlier the pci-sou wlio holds the 
rights or some other person. It is therefore most fortunate that the 
pair of terms, ''real rights" and "personal rights," is not at all 
common in judicial opinions or in legal treatises. Over against this. 
however, it must be recognized that courts not infrequently use a 
somewhat similar pair of terms, viz., the expression "personal rights" 
or "personal claims" in opposition to some such expression as "j)rop- 
erty right," "title to land," "interest in the thing," etc.*^ 

Finally, as regards this particular matter, it must be regretted tliat 
some authors, thougli no courts whatever, so far as has ])een observed, 
use the terms "real rights" and "personal rights" as exact equiva- 
lents, respectively, for all kinds of rights in rem (whether relating 
directly to things or to persons or to neither) and all kinds of rights 
in personam. It is greatly to be hoped that sucii an unusual and, for 
the English law, misleading use of terms will not become at all 
common. 

(c) A single multital right, or claim (right in rem), correlates with 
a duty resting on one person alone, not with many duties {or one 
duty) resting vpon all the members of a very large and indefinite 
class of persons: Though fairly implicated with what has been said in 
the "preliminary" explanation of ideas and terms,"- this proposition 
now requires more detailed consideration ; for it represents a con- 
siderable departure from the explanations or analyses to be found in 
treatises on jurisprudence or in books on particular branches of the 
law. Let us first have definitely before us some typical passages : 

1832, Professor John Austin, Lectures on Jurisprudence, or the 
Philosophy of Positive Law: 

"All rights reside in persons, and are rights to acts or forbearances 
on the part of other persons. . . . 

"The essentials of a right in rem are these: 

"It resides in a determinate person, or in determinate persons, and 
avails against other persons universally or generally. Further, the 
duty with which it correlates, or to which it corresponds, is negative : 
that is to say, a duty to forbear or abstain. . . . 

"The duty which correlates with [a right //( n m] attaclu^s upon 
persons generally. ' "^^ 



61 See the qutHuiiuiirs -utii ante: Mr. Justice Holmes, pp. 83-84; Mr. Justice 
Brandeis, p. 85 ; Lord Suniuer, p. 84. 

See also the term "personal rights'' as used by Mr. .Justice Holmes, dissentinfj, 
in the very recent case of Southern Pacific Co. v. Jensen (1917), 244 U. S., 205; 
37 Sup. Ct., 524. 

62 See ante, pp. 72 fl". 

02 Jurisprudence (5th ed., 1S85), Vol. I, pp. 368. 394, 371, 586. 



92 FUNDAMENTAL LEGAL CONCEPTIONS 

1871, Mr. Justice Markby, Elements of Law: 

"The persons to whom a right in rem belongs may be changed to 
any extent within the limits allowed by the law, but the persons upon 
whom the duty corresponding to a right in rem is imposed cannot be 
changed, because all persons are under that duty."®* 

1880, Professor Thomas Erskine Holland, Elements of Juris- 
prudence: 

"A right is available either against a definite person or persons, or 
against all persons indefinitely. . . . 

"This distinction between rights has been expressed by calling a 
right of the definite kind a right in personam, of the indefinite kind 
a right in rein."^'' 

1902, Mr. Solicitor-General Salmond, Jurisprudence: 

"A real right corresponds to a duty imposed on persons in general. 
. . . The indeterminate incidence of the duty which corresponds to 
a real right, renders impossible many modes of dealing with it which 
are of importance in the case of personal rights. ' '"^ 

1915, Professor Harlan Fiske Stone, Law and Its Administration: 

"One may have a right against all members of the community 
indifferently. Thus one has the right not to have his person or his 
property unlawfully interfered with, and this right exists generally 
against all members of the community."*'^ 

1916, Professor Samuel "Williston, 7s the Bight of an Assignee of 
a Chose in Action Legal or Equitahle? 

"Though legal ownership is conceived fundamentally as a right 
good against all the world, actual instances of such ownership are 
often much more narrowly limited. The owner of a chattel which has 
been stolen from him is likely to find his right against the tvorld con- 
siderably qualified if the thief is in a place where the principles of 
market overt prevail."**^ 

In opposition to the ideas embodied in the passages just given,®^ it 
is submitted that instead of there being a single right with, a single 
correlative duty resting on all the persons against whom the right 
avails, there are many separate and distinct rights, actual and poten- 
tial, each one of which has a correlative duty resting upon some one 
person. Repeating a hypothetical case put above, let us suppose that 
A is the owner of Blackacre and X is the owner of Whiteacre. It 

<^i Elements of Law (6th ed., 1905), pp. 91, 99. 
65 Jurisprudence (10th ed., 1906), p. 139. 
f^Q Jurisprudence (4th ed., 1913), pp. 202, 203. 
^"^ Law and Its Administration (19]5), p. 53. 

68 (1916) 30 Harvard Law Review, 97, 98. 

69 See also the various judicial opinions from whir-h quotations are given ante, 
pp. 82-85. 



AS APPLIED IN .JIDICIAL liEASONING 93 

may be assunu'd further that, in consideration of $100 (i< tually paid 
by A to B, the latter agrees with A never to enter on X's land, White- 
acre ; also that C and D, at the same time and for separate considera- 
tions, make respectively similar agreements with A. in such a case 
A's respective rights against B, C, and I) are clearly rights //( }>< rso- 
nam, or paucital rights. Surely no one would assert that A has only 
a single right against B, C, and 1), with only a single or unified duty 
resting on the latter. A's right against B is entirely separate from 
the other two. B may commit a breach of his duty, without involving 
any breach of C's duty by C or any breach of D's duty by I). For, 
obviously, the content of each respective duty differs from each of 
the others. To make it otherwise C and D would have to be under a 
duty or duties (along with B) that B should not enter on X's land. 
Even if that were the case, thei-e would be said to be three separate 
duties unless B, C, and 1) bound themselves so as to create a so-called 
joint obligation. In the latter case alone would there be said to be 
a single right and a single (joint) duty. Going beyond this direct 
analysis of the situation, it seems clear that the three respective 
"right — duty" relations of A and B, A and C, and A and D respond 
to every test of separateness and independence. A might, e.g., dis- 
charge B from his duty to A, thus (in equivalent terms) creating a 
privilege of entering as against A (not as against X, of coui-se) ; yet, 
obviously, the respective duties of C and D would continue the same 
as before. So on indefinitely. 

Point for point, the same considerations and tests seem api)licable 
to A's respective rights in rem, or multital rights, against B, C, D, 
and others indefinitely, that they, ivspectively considered, shall not 
enter on Blackacre. It is not a case of one joint duty of the same con- 
tent resting on all — e.g., that B should not enter on Blackacre."'* 

'" Pompare, however, special cases like Thorpe v. Brumftt (1S7.T), L. K. S Ch. 
App., 650, involving a suit for an injunction against several defendants for dis- 
turbance of plaintiff's right of way. Lord .Tustice James said: "The plaintiff 
cannot complain, unless he can prove an obstruction which injures him. The case 
is not like one of trespass, which gives a right of action though no damage be 
proved. In the present case, I cannot come to any other conclusion than that 
arrived at by the Master of the Rolls, that the right of access to the inn-yard has 
been interfered with in a way most prejudicial to the Plaintiff. Nothing can be 
much more injurious to the owner of an inn than that the way to his yard should 
be constantly obstructed by the loading and unloading of heavy waggons. If a 
person who was going to put up his horses at the inn was stopped by the loading 
or unloading of waggons, he would probably at once go to another inn. Then it 
was said that the Plaintiff alleges an ohstrurtioit cnuscd by sivcral }» rsons ai'ting 
inilepcndcntlii of each other, and does not shew wh:it share each had in causing it. 
It is probably impossible for a person in the Plaintiff's |)osition to shew this. Nor 



94 FUNDAMENTAL LEGAL CONCEPTIONS 

Consistently with this view, A might, e.g., extinguish B 's duty or, in 
other words, grant B the privilege of entering by giving "leave and 
license" to do so. In such event, of course, the respective duties of 
C, D, E, and all others would continue to exist, precisely as before. 

In order to see even more clearly that the supposed single right in 
rem correlating with "a duty" on "all" persons really involves as 
many separate and distinct "right— duty" relations as there are 
persons subject to a duty, it may be worth while to reverse the situa- 
tion somewhat, and consider, in anticipation of a more general treat- 
ment at a later point, the subject of duties in rem, or multital duties. 
Thus, e.g., X is under duty not to strike R, S, T, or any other ordinary 
member of the community. Are we to say that, as regards these many 
persons, X has but a single duty,^^ and that, correlatively, there is but 
a single right held by R, S, T, and all the others ? Manifestly not, for 
each one of these persons has a distinct and independent right; and 
any one of such independent rights might cease to exist without in the 
least affecting the others. If, e.g., R threatens bodily harm to X, 
R's right that X shall not strike him becomes thereby extinguished, 
and a no-right in R substituted ; or, correlatively, in such contingency, 
X 's duty to R ceases, and X acquires a privilege of self-defense against 
R. But such change in no way affects the entirely distinct relations 
existing between X and the various other persons involved. As 
regards the separateness and relativity of all "right — duty" relations, 
the following judicial reasoning seems accurate and persuasive : 

1908, Mr. Justice Connor, in McGhee v. R. Co.: 

"It is elementary that plaintiff had no cause of action against 
defendants for placing the dynamite in the shanty. He must establish 
some relation between defendants and himself' irom which a duty to 
him is imposed upon defendants. 'The expression "duty" properly 

do I think it necessary that he should shew it. The amount of obstruction caused 
by any one of them might not, if it stood alone, be sufficient to give any ground 
of complaint, though the amount caused by them all may be a serious injury. 
Suppose one person leaves a wheelbarrow standing on a way, that may cause no 
appreciable inconvenience, but if a hundred do so, that may cause a serious incon- 
venience, which a person entitled to the use of the -way has a right to prevent ; and 
it is no defence to any one person among the hundred to say that what he does 
causes of itself no damage to the complainant." 

71 Some would say yes: compare Sir Frederick Pollock, Jurisprudence (2d ed., 
1904), 64: "Doubtless there are duties without any determinate rights corre- 
sponding to them: indeed, this is the case, in any view, with the negative duties 
which we owe to the community at large. For my duty not to damage other 
people's goods, for example, is one duty, not millions of separate duties owed to 
every one who has anything to be damaged, or in respect of every separate chattel 
of any value. ' ' 



AS APPLIED IX JIDJCIAL HEASONING 95 

imports a determinate person to irhom the obligation is owing, as well 
as the one who owes the obligation. There must be two determinate 
parties before the relationship of obligor and obligee of a dutv can 
exist. '"'2 

"With this passage we may well compare the instructive opinion of 
an eminent English judge emphasizing the distinct and relative char- 
acter of each "privilege — no-right" relation connected with a givt-n 
matter, his observations being equally applicable to ''rigiit — duty"' 
relations : 

1906, Lord Collins, M. R., in Thomas v. Bradbury, A(jntw, i(" Co., 
Ltd.: 

"The right" [privilege] "of fair comment, though shared by the 
public, is the right" [privilege] "of every individual who asserts it, 
and is, qua him., an individual right whatever name it be called by, 
and comment by him which is coloured by malice cannot from his 
standpoint be deemed fair. He. and he only, is the person in whose 
motives the plaintiff in the libel action is concerned, and if he, the 
person sued, is proved to have allowed his view to be distorted by 
malice, it is quite immaterial that somebody else might without malice 
have written an equally damnatory criticism. The defendant, and not 
that other person, is the party sued. ""^ 

If, then, the foregoing line of reasoning be sound, the following 
points would seem to be rea.sonably clear: A right in rem. or nndtital 
right, correctly understood, is simply one of a large number of funda- 
mentally similar rights residing in one person ; and any one of such 
rights has as its correlative one, and only one, of a large number of 
general, or common, duties, — that is, fundamentally similar duties 
residing respectively in ma)ty different persons. Similarly, a duty 
in rem, or multital duty, is one of a large number of fundamentally 
similar duties residing in one person : and any one of such duties has 
as its correlative one of a large number of general, or common, rights, 
or claims, — that is, fundamentally similar rights, or claims, residing 
respectively in many different persons. Tt is therefore to be hoped 
that, instead of continuing to be used to indicate the entire multiplicity 
of separate and independent rights, or claims, that a person may have 
against many others, the term right in rem may gradually come to be 
used to represent one, and only one, of this tnultiplicity of distinct 
rights. Whatever be the fate of the concept and term, right in rem, 
in this regard, it is surely of the utmost importance that the various 
possible analyses and meanings involved be carefully pondered and 
understood; and, in the meanwhile, the term "multital" — free as it 

" (1908) 147 X. C, 142, 146. " [1906] 2 K. B.. 627. 638. 



96 FUNDAMENTAL LEGAL CONCEPTIONS 

is from any previous hazy connotations — will without question serve 
definitely to indicate one, and one only, of such a multiplicity of rights 
as is now under consideration. 

(d) A multital right, or claim {right in rem), should not he con- 
fused ivith any co-existing privileges or other jural relations that the 
holder of the multital right or rights may have in respect to the same 
subject-matter: As already incidentally noticed, it is feared that the 
exact nature of multital rights has been greatly obscured not only by 
the habitual tendency to treat a multiplicity of fundamentally similar 
rights, or claims, as if they were only one, but also by the equally 
strong tendency to include under the hazy blanket-term, right in rem, 
especially in the case of tangible objects, the multiplicity of privileges 
and other jural relations that the holder of the multital right or rights 
may have. 

Suppose, for example, that A is fee-simple owner of Blackacre. His 
"legal interest" or "property" relating to the tangible object that 
we call land consists of a complex aggregate of rights (or claims), 
privileges, powers, and immunities.'^* First, A has multital legal 
rights, or claims, that others, respectively, shall not enter on the land, 
that they shall not cause physical harm to the land, etc., such others 
being under respective correlative legal duties. Second, A has an 
indefinite number of legal privileges of entering on the land, using 
the land, harming the land, etc., that is, within limits fixed by law on 
grounds of social and economic policy, he has privileges of doing on 
or to the land what he pleases ; and correlative to all such legal privi- 
leges are the respective legal no-rights of other persons. Third, A has 
the legal power to alienate his legal interest to another, i.e., to extin- 
guish his complex aggregate of jural relations and create a new and 
similar aggregate in the other person ; also the legal power to create 
a life estate in another and concurrently to create a reversion in 
himself; also the legal power to create a privilege of entrance in any 
other person by giving ' ' leave and license ' ' ; and so on indefinitely. 
Correlative to all such legal powers are the legal liabilities in other 
persons — this meaning that the latter are subject nolens volens to the 
changes of jural relations involved in the exercise of A's powers. 
Fourth, A has an indefinite number of legal immunities, using the 
term immunity in the very specific sense of non-liability or non-sub- 

-i See (1913) 23 Yale Law Journal, 21, 24, 59, supra, pp. 28, 30, 31, 64. Com- 
pare also Mr. Justice Foster, in PuUitzer v. Livingston (1896), 89 Me., 359: "With 
all the rights, privileges, and powers incident to ownership," etc. 

See also Professor Arthur L. Corbin, Offer and Acceptance and Some of the 
Sesulting Legal Belations, (1917) 26 Yale Law Journal, 172, 



AS APPLIED IX .ITDICIAL REASOXIN'G 97 

jection to a power on the part of another person. Tims A has the 
immunity that no ordinary pci-son ean alienate A's legal interest or 
aggregate of jural relations to another person; the immunity that no 
ordinary person ean extinguish A's own privileges of using the land; 
the inumuiity that no ordinary jjei-son ean extinguish A's right that 
another person X shall not enter on the land or, in other words, ereate 
in X a privilege of entering on the land. Correlative to all these 
immunities are the respective legal disabilities of other persons in 
general. 

Tn short, A has vested in himself, as regards Blaekaere, multital, or 
in rem, "right — duty" relations, multital, or in rem, "privilege — no- 
right" relations, multital, or in rem, "power — lial)ility" relations, 
and multital, or in ron, "immunity — disability" relations. It is im- 
portant, in order to have an adequate analytical view of property, to 
see all these various elements in the aggregate. It is ef|ually impor- 
tant, for many reasons, that the different classes of jural relations 
should not be loosely confused with one another. A's privileges, e.g., 
are strikingly independent of his rights or claims against any given 
person, and either might exist without the other. Thus A might, for 
$100 paid to him by B, agree in -writing to keep off his own land, 
Blaekaere. A would still have his rights or claims against B, that the 
latter should keep off, etc.; yet, as against B, A's own privileges of 
entering on Blaekaere would be gone. On the other hand, with regard 
to X's land, Whiteacre, A has, as against B, the privilege of entering 
thereon ; but, not having possession, he has no right, or claim, that B 
shall not enter on Whiteacre. 

Not only as a matter of accurate analysis and exposition, but also 
as a fact of great practical consequence and economic significance, 
the property owner's rights, or claims, should be sharply differentiated 
from his privileges. It is sometimes thought that A 's rights, or claims, 
are created by the law for the sole purpose of guarding or protecting 
A's own i^hysical user or enjoyment of the land, as if such physical 
user or enjoyment of the land were the only economic factor of im- 
portance. A moment's reflection, however, shows that this is a very 
inadequate view. Even though the land be entindy vacant and A have 
no intention whatever of personally using the land, his rights or claims 
that others shall not use it even temporarily in sucdi ways as would not 
alter its physical character are, generally, of great economic signifi- 
cance as tending to make others compensate A in exchange for the 
extinguishment of his rights, or claims, or in other words, the creation 
of privileges of user and enjoyment. This has been emphasized by an 
eminent English judge: 



98 FUNDAMENTAL LEGAL CONCEPTIONS 

1874, Lord Selborne, Chancellor, in Goodson v. Richardson:''^ 

"It is said that the objection of the plaintiff to the laying of these 
pipes in his land is an nnneighborly thing, and that his right is one of 
little or no value, and one which Parliament if it were to deal with the 
question, might possibly disregard. "What Parliament might do, if it 
M-ere to deal with the question, is, I apprehend, not a matter for our 
consideration now, as Parliament has not dealt with the question. 
Parliament is, no doubt, at liberty to take a higher view upon a balance 
struck between private rights and public interests than this Court 
can take. But with respect to the suggested absence of value of the 
land in its present situation, it is enough to say that the very fact that 
no interference of this kind can lawfully take place without his con- 
sent, and without a bargain with him, gives his interest in this land, 
even in a pecuniary point of view, precisely the value which that 
power of veto upon its use creates, when such use is to any other person 
desirable and an object sought to be obtained. "^"^ 

Even so able and cautious a thinker as Austin seems to have con- 
fused legal privileges with legal rights (in the sense of claims), and 
also, at times, to have confused mere physical power and liberty both 
with legal privileges and with legal rights. Probably because of the 
very failure to make these necessary and important discriminations, 
he appears to have overlooked, or at least seriously underrated, the 
practical and economic significance of the landowner 's ' ' right — duty ' ' 
relations considered wholly apart from their being guardians of the 
"privilege — no-right" relations, or protectors of the physical liberty 
and power involved in the exercise of such legal privileges : 

1832, Professor John Austin, Lectures on Jurisprudence, or the 
Philosophy of Positive Law: 

' ' Now the ends or purposes of different rights are extremely various. 
The end of the rights in rem. which are conferred over things, is thisr 
that the entitled party may deal Avith, or dispose of, the thing in 
question in such or such a manner and to such or such an extent. In 
order to that end, other persons generally are laid under duties to 
forbear or abstain from acts which would defeat or thwart it. . . . 

"As I stated in my last lecture, I mean by property or dominion 
(taken with the sense wherein I use the term, for the present) any 
such right in rem (of limited or unlimited duration) as gives to the 
party in whom it resides an indefinite power or liberty of using or 
dealing with the subject : A power or liberty of using or dealing with 
the subject which is not capable of exact circumscription or definition ; 
which is merely limited, generally and indefinitely, by the sum of the 
duties (relative and absolute) incumbent on the owner or pro- 
prietor. . . . 

-5 (1874) L. R. 9 Ch. App., 221, 223. 

76 Compare Henry Pitney, V. C, in Eennessy v. Carmony (1892), 50 N. J. Eq.,, 
616. 



AS APPLIED IN JUDICIAL REASONING 99 

"The power of user and the power of exclusion are equally rights 
to forbearances on the part of other persons generally. liy virtue of 
the right or power of indefinitely using the subject, other persons 
generally are bound to forbear fronidisturbingtlieowncrinactsof user. 
By virtue of the right or power of excluding other persons generally, 
other persons generally arc bound to forbear from using or meddling 
with the subject. The rights of user and exclusion are so blended, 
that an offence against the one is commonly an offence against the 
other. 1 can hardly prevent you from ploughing your field, or from 
raising a building upon it, without committing, at the same time, a 
trespass'. And an attempt on my part to use the subject (as an 
attempt, for example, to fish in your pond) is an interference with 
your right of user as well as with your right of exclusion. But an 
offence against one of these rights is not of necessity an offence against 
the other. If, for example, I walk across your field, in order to shorten 
my way to a given point, I may not in the least injure you in respect of 
your right of user, although I violate your right of exclusion. Viola- 
tions of the right of exclusion (when perfectly harndess in themselves) 
are treated as injuries or offences by reason of their probable effect on 
the rights of user and exclusion. A harmless violation of the right of 
exclusion, if it passed Anth perfect impunity, might lead, by force of 
the example, to such numerous violations of the right as would render 
both rights nearly nugatory."" 

In these various passages, and especially in the last one, Austin 
uses the term "right" indiscriminately and confusedly to indicate 
both those jural relations that are legal rights, or claims, and those 
that are legal privileges — a lapse all the more surprising in view of 
the fact that the learned and painstaking author had previously been 
careful to emphasize the proposition that ''the term 'right' and the 
term 'relative duty' signify the same notion considered from different 
aspects."'^ Such a delimitation of "right" clearly excludes "legal 
privilege"; for the correlative of the latter, or "the same notion" 
from a "different aspect," is, of course, "no-right" or "no-claim." 

More or less similar blending of legal concepts and terms in con- 
nection with the subject of rights in rem seems to find place not only 
in well-known works on jurisprudence but also in various treatises 
or monographs on particular branches of the law.'-' Indeed it is not 

'T Jurisprudence (5th ed., 1885), Vol. T, p. .?07, Vol. TT. pp. 709. 802. 808. 

-» Jurisprudence (5th ed., 1885), Vol. I, p. 3!15. 

"9 It is, of course, possible for a given writer to ' * impose " on a term what 
meaning he will, within the princijde of the following: 

" 'When / use a word,' Tlumpty Dumpty said, in rather a scornful tone, 'it 
means just what I choose it to mean, neither more nor less.' 

" 'The question is,' said Alice, 'whether you can make words mean so many 
different things. ' 

" 'The question is,' said Humpty Dumpty. 'whiih is to be the master? That's 
all.' " Through the Looking Glass, Chap. VI. 



100 FUNDAMENTAL LEGAL CONCEPTIONS 

unlikely that the later writers have in this respect but followed the 
lead of Austin, as they have in so many other matters of legal analysis. 
The following passages will serve to show how general is the usage 
referred to, and, it is believed, will also indicate how such a usage 
tends to hinder and obscure correct analysis and clear understanding 
of legal problems: 

1871, Mr. Justice Markby, Elements of Law: 

' ' Thus in the case of a contract between A and B, the right of A to 
demand performance of the contract exists against B only ; whereas in 
the case of ownership, the right to hold and enjoy the property exists 
against persons generally. This distinction between rights is marked 
by the use of terms derived from the Latin : the former are called 
rights in personam; the latter are called rights in rem."^'^ 

1880, Professor Thomas Erskine Holland, Elements of Juris- 
prudence: 

' ' A right is available either against a definite person or persons, or 
against all persons indefinitely. A servant, for instance, has a right 
to his wages for the work he has done, available against a definite 
individual, his master ; while the owner of a garden has a right to its 
exclusive enjoyment available against no one individual more than 
another, but against everybody."*^ 

1902, Mr. Solicitor-General Salmond, Jurisprudence: 

"My right to the peaceable occupation of my farm is a real right, 
for all the world is under a duty towards me not to interfere with it. 
... I have a real right to the use and occupation of my own house ; 
I have a personal right to receive accommodation at an inn. . . . "^^ 

1874, Mr. Stephen Martin Leake, Law of Property in Land: 

"Rights to things, jura in rem, have for their subject some material 
thing, as land or goods, which the o^^^ler may use or dispose of in any 
manner he pleases within the limits prescribed by the terms of his 
right. A right of this kind imports in all persons generally the cor- 
relative negative duty of abstaining from any interference with the 
exercise of it by the owner; and by enforcing this duty the law pro- 
tects and establishes the right. But a right of this kind does not 
import any positive duty in any determinate person, or require any 
act or intervention of such person for its exercise and enjoyment. ' '^^ 

If, however, this more or less arbitrary plan be pursued, it is at least desirable 
that it be done premeditatedly, and that adequate notice be given. It is, more- 
over, believed that, in the cases put in the text, the difficulties involved are con- 
cerned primarily with concepts rather than terms. 

»^ Elements of Law (6th ed., 1905), p. 98. 

81 Elements of Jurisprudence (10th ed., 1906), p. 139. 

»^ Jurisprudence (4th ed., 1913), pp. 202, 203. 

S3 /.aw of Property in Land (1st ed., 1874), p. 2. 



AS APPLIED IX JUDICIAL REASONING 101 

1887, Professor Jaines Barr Ames, Pt(nhas( for Value icithout 
Notice : 

"The most striking difference between property in a thing and 
property in an ol)ligation is in tlie mode of enjoyment. The owner of 
a house or a horse enjoys the fruits of ownership without the aid of 
any other person. The only way in whieli the owner of an obligation 
can realize his ownership is by compelling its performance by the 
obligor. Hence, in the one case, the owner is said to have a right in 
rem, and, in the other, a right in personam.'"^* 

1915, Professor Harlan Fiske Stone, Law and its Administration: 

''It will be noted that the essential difference between a right in rem 
and a right in personam is that a right in rem may be enjoyed by the 
possessor of it without the intervention or aid of any other person, 
whereas vhe possessor of a right in personam can enjoy his possession 
or ownerhip of it only by compelling the obligor to perform the obliga- 
tion which gives rise to the right. . . . 

"Rights in rem include generally all of those rights commonly 
spoken of as property rights; that is to say, rights to possess, use, and 
enjoy things, which rights are good and enforceable against all the 
world. "«^ 

1916, Professor Sanuiel AYilliston, Is the Right of an Assignee of a 
Chose in Action Legal or Equitable? 

"Though legal ownership is conceived fundamentally as a right 
good against all the world, actual instances of such ownership are 
often mach more narrowly limited."^" 

(e) A multital primary rigid, or claim {right in rem), should, 
regarding its character as such, he carefully differentiated from the 
paiicital secondary right, or claim (right in personam), arising from 
a violation of the former: Using again the hypothetical case involving 
A as owner of Blackacre, it is clear that if 1:5 commits a destructive 
trespass on A's land, there arises at that moment a new right, oi- claim, 
in favor of A, — i.e., a so-called secondary right that B shall pay him 
a suiri of money as damages; and of course B comes simultaneously 
under a correlative duty. Similarly if (' commits a battery on A. or 
if D alienates the affections of A's wife: and so on iiuletinitely. In 
each of these cases the secondary right — e.g., that against B — is a 
paucital right, or claim, i.e., a right in personam. The entire "right — 
duty" relation would be one of the class of relations in personam 
designated in Roman law by the term ohligatio. ^lore specitically. the 
relation would be known as an ohligatio ex delicto. This is brought 
out by the language of an eminent judge : 

84 (1887) 1 Harvard Law Eeview, 1, 9. 

S5 Law and lis Adminisi ration (191o), ]>p. 51, 54, 57. 

86 (1916) 30 Ilarvar.l Law Review, 07, 98. 



102 FUNDAMENTAL LEGAL CONCEPTIONS 

1904, Mr. Justice Holmes, in Slater v. Mexican National R. R. Co.: 

''We assume for the moment that it was sufficiently alleged and 
proved that the killing of Slater was a negligent crime within the 
definition of Article 11 of the Penal Code, and, therefore, if the above 
sections were the only law bearing on the matter, that they created a 
civil liahility to make reparation to any one whose rights were in- 
fringed. . . . 

' ' The theory of the foreign suit is that . . . the act complained of 
. . . gave rise to an obligation, an o6h'gfa^w . . . "®^ 

This analysis seems applicable even in the case of a tort consisting 
of wrongfully dispossessing an owner of a tangible movable object. 
Thus, if Y wrongfully takes possession and control of X 's horse, there 
arises a duty iji Y to return the animal to X; and, of coure, X gets 
a correlative right. The latter is a paucital right, or right in personam ; 
for there are no fundamentally similar rights against persons in 
general. This is true even though, of course, X's rights against 
others that they shall not convert or harm the horse while in Y's 
possession are rights in rem. The following passage is apposite : 

1900, Mr. Chief Justice Holmes, in Tyler v. Court of Registration: 

"But it is said that this is not a proceeding in rem. It is certain 
that no phrase has been more misused. In the past it has had little 
more significance than that the right alleged to have heen violated was 
a right in rem. Austin thinks it necessary to quote Leibnitz for the 
sufficiently obvious remark that every right to restitution is a right in 
personam. "^^ 

That this distinction is not always carefully observed may be seen 
from a consideration of the quotations next to be presented. 

(f) A multital primary right, or claim {right in rem), should not, 
regarding its character as such, he confused ivith, or thought depend- 
ent on, the cliaracter of the proceedings hy which it (and the second- 
ary right arising from its violation) may he vindicated: Owing to 
limitations of space this matter cannot be given here all the attention 
that it deserves; and the more complete discussion must be reserved 
for another place. Some of the more important points should, how- 
ever, be noticed in the present context. 

At least two tendencies are occasionally to be observed by way of 
confusing the nature of primary rights (as in personam or in rem) 
with the character of the proceedings by which they may be vindicated. 
Both of these tendencies are believed to be founded on seriously erro- 
neous notions that ought, if possible, to be dissipated. Each of them 
will, therefore, be briefly discussed. 

First, it is sometimes supposed that to have a right in rem concem- 

87 (1904) 194 U. S., 120, 125. 88 (1900) 175 Mass., 71, 76. 



AS APPLIED IX JUDICIAL REASONING 103 

ing a tangible olgect of wliicii tlu- owiut has l)een wrongfully dis- 
possessed means that he may recover possession of the object itself, 
by self-help or action, from the first wrongdoer or any subsequent 
party holding possession as vendee or bailee of the first wrongdoer, or 
as wrongful taker from the latter. Thus : 

1890, Professor James Barr Ames, Disseisin of Chattels: 

"Trespass, however, M-as a purely personal action; it sounded only 
in damages. The wrongful taking of chattels was, therefore, a more 
effectual disseisin than the ouster from land. The dispossessed owner 
of land, as we have seen, could always recover possession by an action. 
Though deprived of the ns, h< still had a right //( ron. The disseisor 
acquired only a defeasible estate. One whose chattel had been taken 
from him, on the other hand, having no means of recovering it by 
action, not only lost the res, but had no right in rem. The disseisor 
gained by his tort both the possession and the right of possession ; in 
a word, the absolute property in the chattel taken. . , . 

"Today, as everyone knows, neither a trespasser, nor one taking or 
buying from him. nor the vendee of a bailee, either with or without 
delivery by the latter, acquires the absolute property in the chattel 
taken or bailed. The disseisee of goods, as well as the disseisee of 
land, has a right //( rem. The process by which the riefJit in personam 
has been transformeel into a real right may be traced in the expansion 
of the writs of replevin and detinue, and is sufficiently curious to 
warrant a slight digression. . . . 

"The disseisee's right in rem, however, was still a qualifieel right; 
for replevin was never allowed in England against a vendee or bailee 
of a trespasser, nor against a second trespasser. It was only by the 
later extension of the action of detinue that a disseisee finally acquired 
a perfect right in rem. Detinue, although its object was the recovery 
of a specific chattel, was originally an action e.r contractu. It was 
allowed only against a bailee or against a vendor, who after the sale 
and before delivery Avas in much the same position as a bailee. . . . 

' ' So long as the adverse possession continues, the dispossessed owner 
of the chattel has, manifestly, no power of present enjoyment. Ha.<5 
he lost also the power of alienation? His right in rem, if analyzed, 
means a right to recover possession by recaption or action. "^^ 

As indicated by the passages quoted. Professor Ames seems to have 
thought that for the owner, after dispossession, to have rights in rem 
would require the remedy of specific recovery of the tangible object. 
This, however, seems to involve a blending or confusing of substantive 
relations and adjective relations. If A, the owner of a tangible mov- 
able object, is dispossessed by B, A, under modern authorities, has 
rights against all persons that the object should not be harmed or 
"converted"; and these rights could be vindicated by an action on 
the case or by an action of trover, as the facts might demand. It is 

89 (1890) 3 Harvard Law Review, 25. 28, 29, 30. 3], 33, 34, 337. 



104 FUNDAMENTAL LEGAL CONCEPTIONS 

clear, moreover, that such rights would exist, as multital rights, or 
rights in rem, even though no possessory remedy were open to A. 

If we may judge by the passages quoted above, it seems not unlikely 
that Professor Ames, because of assuming that a right in rem con- 
cerning physical objects involves necessarily, in case of dispossession, 
the remedy of recovery of possession, would apparently have asserted 
that in the early days even a chattel owner in actual possession did 
not have "a right in rem" f'^ and it is clear, in any event, that the 
possibility of regaining possession by action or self-help is frequently 
assumed to be of the essence of "a right in rem." 

This, however, seems a very inadequate and inexact view. Even in 
the days when wrongful dispossession operated virtually to divest the 
legal interest of the chattel owner, it was still true that prior to any 
such dispossessing of the physical object and concomitant divesting 
of the legal interest he had rights in rem against persons in general 
that they should not harm the object or take the object from the 
owTier; and these respective multital rights, or rights in rem, could, 
as Professor Ames himself points out, be vindicated by trespass or 
other action brought to secure damages. ^°^ In other words, the chattel 
owner's rights, so long as he had them, were rights in rem, even though 
in the early period now referred to (middle of the thirteenth century) 
he was subject to the liabilities of their being virtually divested by a 
wrongful taking, — there being, correlatively, a power in the wrong- 
doer thus to divest the interest of the chattel o\^Tier.^°'' 

Fundamentally similar legal powers and correlative liabilities in- 
volving the divesting of " legal "^^ and "equitable" rights in rem (and 
other jural relations belonging to the particular aggregates involved) 

90 Compare Ames, Disseisin of Chattels, (1890) 3 Harvard Law Eeview, 314, 
passim; consider especially the statement: "A true property may, therefore, be 
shortly defined as possession coupled with the ■unlimited right of possession." 

This definition would seem to involve a serious confusion of physical relations 
with legal relations. 

Compare also Ames, Lectures on Legal History (1913), p. 76, passage quoted 
post, p. 107. 

90a See Ames, Lectures on Legal History (1913), pp. 60, n. 1, 178 ff. 

For judicial consideration of the early history of the action of trespass, see 
Admiralty Commissioners v. S. S. Amerika [1917], A. C, 38. 

90b [Compare Cook, Powers of Courts of Equity, (1915) 15 Columbia Law Ee- 
view, 37, 45. — Ed.] 

91 All legal rights, if genuine and valid, are really "concurrently legal and 
equitable," if considered with respect to the sanctions involved. See The dela- 
tions between Equity and Law, (1913) 11 Michigan Law Eeview, 537, reprinted 
infra; also Professor Walter Wheeler Cook, The Alienability of Choses in Action — 
A Beply to Professor Williston, (1917) 30 Harvard Law Eeview, 449, 455. 



AS APPLIP:D IX judicial reasoning 105 

have existed from the earliest times. Such powers are created I)y the 
law on various grounds of policy and convL-nience, — the teleology 
"underlying each particular instance not being difficult to discover. 
In this place a hare enumeration of some of such powers must suffice : 
1. The power of sale in market overt to a bona fide purchaser ; 2. The 
power of even a thief having possession of money but not, of course, 
the "ownership" thereof, to create a good title in a bona fide "pur- 
chaser,""- — the whole country being in this ca.se, so to say, "market 
overt" because of the necessity of free circulation of money, and it 
being too inconvenient for the transferor to produce or the transferee 
to examine an "abstract of title" ; 3. The power or powers of a grantor 
and second grantee of I'calty, under the recording acts, to extinguish 
the interest of the first grantee by a conveyance to the second grantee 
as an innocent purchaser and the prior recording of the latter 's 
deed f^ 4. The statutory power of a factor, in certain cases, to create 
a good title in an innocent purchaser; 5. The power of a duly appointed 
agent, in certain cases, to sell chattels to an innocent purchaser, even 
after his factual authorization to sell has ])een revoked by the principal ; 
6. The power of a trustee to convey an unincumbered ' ' legal title ' ' to 
a ho7ia fide purchaser for value without notice, — the equitable rights, 
privileges, etc., of the cestui rjue trust being thereby extinguished. 

The foregoing and others that might be mentioned are cases depend- 
ing on the public policy of securing freedom of alienation and circula- 
tion of property in the business world. There may now be mentioned 
certain other cases dependent on somewhat different teleological con- 
siderations: 1. The power of an ordinary agent (while his factual 
authorization continues) to divest the rights in rem, etc., of his prin- 
cipal and create new and corresponding rights, etc., in the agent's trans- 
feree ; 2. The power of a donee of a power of appointment to extinguish 
the rights in rem, etc., of the owner of a vested interest and to create 
new and corresponding rights, etc., in the transferee ; 3. The power of 
the appropriate officer or officers to alienate property effectually in 



92 Compare Viscount Haldane, L. C, in Sinclair v. Brougham [' . . C., 
398, 418, 419, quoted ante, p. 84. 

93 Compare Lord Justice Cozens-Hardy in Capital S- Countir.i Bank, Ltd. v. 
Bhodes [1903], 1 Ch., 631, 6-5.5-6.56: 

"The transfer by registered disposition takes effect hy virtue of an overriding 
power, and not by virtue of any estate in the registered proprietor. . . . Notwith- 
standing that the land has Ijeionie registered land it may still be dealt with by 
-deeds having the same operation and effect as they would have if the land were 
unregistered, subject only to the risk of the title being defeated . . . by the exer- 
cise of the statutory powers of diapo.fition given to the registered proprietor, 
against which the mortgagee must protect himself by notice ou the register." 



]06 FUNDAMENTAL LEGAL CONCEPTIONS 

eminent domain proceedings; 4. The power of a sheriff duly em- 
powered by writ of execution to divest the rights in rem, etc., of the 
present owner of property and to vest new and corresponding rights, 
etc., in another; 5. The power of a court, in a statutory proceeding to 
quiet title, to extinguish the rights in rem, etc., of the present owner 
and to give new and corresponding rights, etc., to the plaintiff; 6. 
Various other powers of courts involving the "shifting" of title from 
one person to another. 

In all these cases it is clear that the present owner has rights in rem, 
etc., in spite of his liabilities that they may be divested through the 
exercise of the various powers indicated. 

Second, we must now consider a second form of the same general 
tendency to assume some rigid interdependence between the nature 
of a right in rem as such and the character of the proceedings avail- 
able for its vindication. This erroneous assumption has most often 
been made in discussions of the question whether there are any in- 
stances of equitable rights in rem (multital rights), or, indeed, 
whether there could, in the very nature of things, be any instances of 
equitable rights in rem. Thus : 

1877, Professor C. C. Langdell, Summary of Equity Pleading: 

"The reason why all equitable rights to property are lost the mo- 
ment the legal ownership is transferred for value to a person who has 
no notice that it is subject to any equitable rights, will be found in the 
fundamental nature of equitahle jurisdiction, as explained in previous 
paragraphs. It is only by a figure of speech that a person who has 
not the legal title to property can be said to be the equitable owner of 
it. What is called equitable ownership or equitable title or an equi- 
table estate is in truth only a personal claim against the real owner; 
for equity has no jurisdiction in rem, and cannot, therefore, confer a 
true ownership, except by its power over the person with whom the 
ownership resides, i.e., by compelling him to convey."^* 

1900, Professor C. C. Langdell, Classification of Bights and Wrongs: 

"Can equity then create such rights as it finds to be necessary for 
the purposes of justice ? As equity wields only physical power, it seems 
to be impossible that it should actually create anything. It seems, 
moreover, to be impossible that there should be any other actual rights 
than such as are created by the State, i.e., legal rights. So, too, if 
equity could create actual rights, the existence of rights so created 
would have to be recognized by every court of justice within the 
State; and yet no other court than a court of equity will admit the 
existence of any right created by equity. It seems, therefore, that 
equitable rights exist only in contemplation of equity, i.e., that they 
are a fiction invented by equity for the promotion of justice. Still, 

^'i Summary of 'Equity Pleading (2d ed., 1883), see. 184. 



AS APPLIED IX JUDICIAL REASONING 107 

as in contemplation of eiiuity such rights do exist, equity must reason 
upon them and deal with them as if they had an actual existence. ' ""* 

Circa 1886, Professor James Barr Ames, Lectures on Legal Ilistory: 

"A trust, as every one knows, has been enforceable for centuries 
against any holder of the title except a purchaser for value without 
notice. But this exception shows that the cestui que trust, unlike the 
bailor, has not acquired a right in rcm.^^^ This distinction is, of 
course, due to the fundamental difference between common-law and 
equity procedure. The common law acts in rem. The judgment in 
detinue is, accordingly, that the plaintiff recover the chattel, or its 
value. ''"'^ Conceivably the coiumon-law judges might have refused to 
allow the bailor to recover in detinue against a bona fide purchaser, as 
they did refuse it against a purchaser in market overt. But this would 
have involved a weighing of ethical considerations altogether foreign 
to the medieval mode of thought. Practically there was no middle 
ground between restricting the bailor to an action against his bailee, 
and giving him a right against any pos,sessor. Equity, on the other 
hand, acts only in personam, never decreeing that a plaintiff recover 
a res, but that the defendant surrender what in justice he cannot 
keep."»« 

1904, Professor Frederic William Maitland, Trust and Corporation: 

"I think it is better and safer to say with a great American teacher 
that 'Equity could not create rights in rem if it would, and would 
not if it could. ' See Langdell, Harvard Law Review, Vol. I, p. 60. ' '"' 

It is dififieult to find solid foundation for such assumptions as the 
foregoing, or to understand how the notions connected therewith could 

93 (1900) 13 Harvard Law Review, 673, 677. For analysis and criticism of the 
views of Professors Langdell, Ames, and Maitland as regards the relations of 
substantive equitable doctrines to substantive legal doctrines, see the writer's 
article, The Belations between Equity and Late, (1913) 11 Michigan Law Review, 
537, infra. 

See also Supplemental Note on The Conflict of Equif;i and Low, infra. 

93a For criticism of this assumption, see ante, n. 22. 

93b But see Holmes, J., in Tyler v. Court of Registration (1900), 175 Mass., 71, 
76, quoted post, n. 99. 

^^ Lectures on Legal Hvitory (1913), p. 76. Compare Professor Harlan F. 
Stone, Law and Its Administration (1915), pp. 93, 95: "Since a judgment at 
law affects only the property of the parties to the litigation, it is sometimes spoken 
of as a judgment in rem. The weakness, as well as the strength of such a system 
of procedure is apparent. To avail one's self of a legal remedy, one must wait until 
his rights have been interfered with and he has suffered some legal damage. . . . 

"The distinguishing feature of equity is that the chancellor, or equity judge, 
who, because of his official position, originally had delegated to him the royal pre- 
rogative of command, has power to command things to be done or not to be done. 
That is, the equity courts act in personam, as it is said, or against the person, a.t 
distinguished from the law courts whose jurisdiction is in rem or over the property 
of the litigants. Thus, the chancellor could enjoin the defendant from committing 



108 FUNDAMENTAL LEGAL CONCEPTIONS 

have received siieh a large following. Are we forced to recognize that 
mere words — especially if they are Latin words — have such a sur- 
prisingly potent tendency to control thought ? 

Suppose, once again, that A is owner of Blackacre, and that B drives 
his automobile over A's lawn and shrubbery. A's primary right in 
rem is thereby violated, and a secondary right in personam arises in 
favor of A and against B, — an "ohligatio," to use the terra of Mr. 
Justice Holmes.®* A may sue B at law for damages and get, as a 
result of the 'primary stage" of the proceeding, an ordinary legal 
judgment in personam for (say) $500. Such judgment would 
' ' merge ' ' or extinguish A 's secondary right in personam together with 
B's secondary duty, and would create a (new) judgment obligation — 
right in personam and correlative duty — for the payment of $500. 
Such judgment would be binding even though the judgment debtor, 
B, had no assets whatever.®^ Thus, if B's judgment duty is not per- 
formed or discharged, a new action can, in most jurisdictions, be 
based thereon ; though in some of the latter costs are denied to the 
plaintiff if the new action be brought without special reasons.^°° 

But of course A is not likely to wish merely an indefinite series of 
judgment obligations. If, therefore, B has property either at the time 
judgment is rendered or at some later time, a "secondary stage ""^ 
of the proceedings, beginning with a writ of execution, may be had. 
That is, the sheriff, under such a writ, has the power and duty of 
selling sufficient property of B and applying the proceeds to the 
satisfaction of the judgment. If the total proceedings culminate in 
this way, and only if they do so culminate, can we say that there has 

a threatened injury to the plaintiff's property, or make a decree directing the 
defendant to convey property to the plaintiff in accordance with his contract. If 
the defendant failed to obey, he could be punished for contempt by imprisonment 
until he becfime obedient to the court. ' ' 

97 Collected Papers (1011), Vol. Ill, p. 350, n. 1. 

98 See a7ite, p. 102. 

99 See Mr. Justice Holmes, in Tjiler v. Court of Begistraiion (1900), 175 Mass., 
71, 76: 

"If the technical object of the suit is to establish a claim against some particu- 
lar person, with a judgment which generally, in theory at least, binds his 
body . . . the action is in personam, although it may concern the right to or 
possession of a tangible thing." 

See also a later passage in the learned judge's opinion (p. 77), referring to a 
judgment in personam as one establishing "an infinite personal liability." 

100 See Freeman, Judgments (4th ed., 1898), sees. 432 ff. 

101 As regards "the primary stage" and "the secondary stage" of an action 
at law or suit in equity, compare Lord Hardwicke, in Penn v. Lord Baltimore 
(1750), 1 Ves., 444, 454, quoted ante, p. 69, n. 11. 



AS APPLIED IN JUDICIAL REASONING 109 

iDeen a proceeding in rem,^^- or, more specifically, quasi in rcm.^^'^ 
That is to say, according to Ihe meaniiifi^s of the phrases 2'/? personam 
and in rem in this particular context, the proceedings from the 
beginning of the action down to and including the execution sale have 
a twofold aspect and eflPeet : (1) the primary stage of the entire pro- 
ceedings, i.e., down to judgment, is, considered by itself, a proceeding 
in personam; (2) the primary stage and the secondary stage (from 
and after judgment) are, considered together, a proceeding ejtiasi in 
rem with reference to the particular property sold in the execution 
sale. 

Instead of suing R for damages and receiving a judgment in per- 
sonam, as above described, A might in some jurisdictions, in case B 
be absent from the jurisdiction, attach a definite piece of B's property ; 
and ultimately this might be sold to satisfy A's claim for damages. 
In this case the entire proceeding, since its only efTeet is to extinguish 
B's ownership of the very property attached (if any he hadj and 

102 Even though such execution sale take place as a result of, and subsequent to, 
a judgment for money, neither the action brought to secure such a judgment nor 
the judgment itself, is said to be in rem. {Cf., however. Professor Ames, ante, p. 
107, and Professor Stone, ante, n. 96.) On the contrary, both the action and the 
judgment are said to be in personam. See Mr. Justice Holmes, in Tijlcr v. Court 
of Registration (1900), 175 Mass., 71, 76, quoted ante, n. 99. 

See also Mr. Justice Cutting, in Bedington v. Fnje (1857), 43 Me., 578, 586: 
' ' And the embarrassment has arisen in a great measure by an erroneous idea 
that the remedy of the contractor and his sub-contractor is the same; whereas the 
former has his security on the goods and estate of his debtor, that is, in personam, 
as well as on the specific property benefited by his labor, which may be in rem, 
and after judgment it is optional with the creditor on which species of property he 
will levy his execution. . . . But a sub-contractor has no claim against the o^^■ner 
of the property — his claim is only against the property (t;i rem), and the person 
and property of his employer (in personam)." 

It is believed, however, that it tends greatly to clarify matters to distinguish 
sharply, as already indicated, the two stages of the judicial proceedings; for the 
two taken together operate, as regards such property as is sold on execution, just 
as if such property had been attached ab initio and subsequently sold, with no 
intermediate judgment in personam at all. Such an attachment proceeding would, 
of course, be called a proceeding in rem, or, more specifically, quasi in rem. 

103 Compare Mr. Justice Franklin, in Hook v. IToffman (1915), 16 Ariz.. 540, 
557: 

"While, properly speaking, actions or proceedings in rem are against the thing 
itself, and for the purpose of disposing thereof without reference to the title of 
particular claimants, the term has in a larger and broader sense been applied to 
certain actions and proceedings between parties, where the object is to reach and 
dispose of property owned by them or in which they have an interest ; but, as 
these are not strictly in rem, they have frequently and more properly been termed 
quasi in rem, or in the nature of actions or proceedings in rem.' ' 

It is, of course, inaccurate to describe the proceeding strictly i?i rrm as one 



110 FUNDAMENTAL LEGAL CONCEPTIONS 

create new and corresponding ownership in the execution purchaser, 
is a proceeding quasi in rem. 

It will thus be seen that, even in the law courts, the vindication of 
primary rights in rem may, according to the circumstances, be by 
proceedings in personam, or by proceedings quasi in rem, or by both 
forms of proceeding (primary and secondary stages of the ordinary 
action at law).^°* It is equally obvious that a primary right in per- 
sonam, e.g., A's right that B pay him $10,000, may frequently be 
vindicated only by an attachment proceeding, — i.e., one quasi in rem. 

The point that the primary rights may be in rem, although the 
vindication proceedings are in personam in the special sense that such 
phrase has in the present context, is often brought out in admiralty 
cases. Thus : 

1907, Mr. Justice Holmes, in The Hamilton: 

"We pass to the other branch of the first question : whether the state 
law, being valid, will be applied in the admiralty. Being valid, it 

which is "against the thing itself." See Mr. Justice Holmes, in Tyler v. Court 
of Registration (1900), 175 Mass., 71, 77: 

' ' Personification and naming the res as defendant are mere symbols, not the 
essential matter. They are fictions, conveniently expressing the nature of the 
process and the result, nothing more. ' ' 

It is submitted, moreover, that the distinction between a proceeding strictly 
in rem, and one quasi in rem is not correctly or adequately described by saying that 
the former is against all the world and the latter against only a particular person. 
When, e.g., a vessel is sold, in an admiralty proceeding strictly in rem, the effect 
is to extinguish the ownership (i.e., aggregate of rights, etc.) of the owner and to 
vest a new and corresponding ownership in the purchaser. So also, when a horse 
supposedly belonging to B, a judgment debtor, is sold by the sheriff under a writ 
of execution, a precisely similar result occurs, -provided that B, the particular 
judgment debtor named, actually does oivn the horse. The proceeding strictly in 
rem is sure to "hit the right target"; whereas the proceeding quasi in rem is not 
certain to do so. 

The former, indeed, can be correctly and adequately understood only if it be 
realized that it is essentially an anonymous proceeding, being aimed to reach the 
interest of the true owner (or owners) of the property whoever he may be. The 
proceeding quasi in rem is, on the other hand, aimed to reach only the interest of a 
named party. The effect, therefore, so far as transfer of ownership is concerned, 
is necessarily conditional upon some legal interest being actually vested in the 
particular party named. 

If effective, however, the ordinary proceeding quasi in rem, like that strictly in 
rem, affects the jural relations of all persons, not merely those of the present 
owner; for in each case the "transfer of title" involves, as regards all persons, the 
extinguishment of their duties to the present owner in respect to the particular 
object involved and the creation of new and corresponding duties to the new 
owner. 

10* Of course, even where a judgment in personam is sought, property may be 
attached ab initio and subsequently sold to satisfy the judgment. 



AS ArPLIED IN JL'DK'IAL REASONING 111 

created an ohligatio, a personal liability of the owiu-r o\' the ITaniilton, 
to the claimants. Slat<r v. Mrxiian Xatioiuil li. R. Co., 194 U. S., 
120, 126. This, of course, the admiralty wouhl not disregard, but would 
respect the right when brought before it in any legitimate way. Ex 
parte McNeil, 13 Wall., 236, 243. It might not give a proceeding in 
rem, since the statute does not purport to create a lien. It might give 
a proceeding in pcrsonam."^^^ 

Let us now suppose, in the Blackacre case, that instead of suing at 
law (after B has committed a destructive trespa.ss), A secures from 
an equity court, ah initio, an injunction against B. The decree of the 
court here (end of ''primary' stage" of the equitable proceeding) 
would result in imposing a (new) duty on B not to trespass on Black- 
acre; and, correlatively, A would have a (new) equitable right. ^"^ 
This first stage of the equitable proceeding would be in personam in 
the same general sense that the primary stage of the law court's is in 
personam. If B fails to fulfil the negative duty imposed by the in- 
junction, there will ordinarily occur a "secondary stage," resulting 
in imprisonment for contempt. So far as this is said to be "enforce- 
ment" or procedure in personam, it involves a different and more 
literal use of the phrase in personam than in any of the instances 
previously considered. ^•'^ But the point for special emphasis here is 
that A's primary rights in rem are now being vindicated exclusively 
by equitable proceedings that are in personam in one sense so far as 
the primary stage is concerned and in personam in a different sense 
so far as the secondary stage is concerned. 

On what posible ground, therefore, even assuming that equity could 
"act only in personam,' ''^'^^ could it be said that for that reason there 

105 (1907) 207 U. S., 398, 405. 

108 Compare Fall v. Eastin (1909), 215 U. S., 1, 14-15 (concurring opinion of 
Holmes, J.); MaUette v. Carpenter (1916), 160 N. W. (Wis.), 182; see extended 
comment in (1917) 26 Yale Law Journal, 311. 

See also The Relations between Equity and Law, (1913) 11 Michigan Law 
Eeview, 537, 567-568, reprinted infra. 

107 For a summary of the different uses of the pair of phrases, in personam and 
in rem, see ante, pp. 69-70. 

For a comparison of imprisonment in an action at law, under a capias ad respon- 
dendum or capias ad satisfaciendum, with imprisonment for contempt in a chancery 
suit, for the purpose of coercing performance of a decree, see the thorough dis- 
cussion by Professor Walter Wheeler Cook, The Powers of Courts of Equity, (1915) 
15 Columbia Law Eeview, 108 ff. 

See also The JRclations between Equity and Law, (1913) 11 Michigan Law 
Review, 537, 564-567, infra. 

108 Such an assumption itself seems to be inaccurate and misleading in view of 
the power of a court of equity to issue writs of assistance and writs of sequestra- 
tion. See Lord Hardwicke, in Penn v. Lord Baltimore (1750), 1 Ves., 444, 454, 



112 FUNDAMENTAL LEGAL CONCEPTIONS 

could be no equitable primary rights in rem, i.e., multital rights? If 
the usual legal proceedings were abolished, and A could vindicate his 
Blackacre rights in rem only in equity, would they thereby cease to 
be rights in rem and become only rights i% personam f 

Suppose, indeed, that we have a devise of Whiteacre to X for life, 
with remainder in fee to Y if, and only if, Y survives Z. Until Z's 
death before the death of X, Y has, obviously, only a contingent re- 
mainder. Let us assume, further, that T is threatening a destructive 
trespass to the premises, including the ruining of the mansion house. 
Y, the contingent remainderman, has no ' ' legal ' ' rights in rem, for he 
has no vested rights, etc., but only "possibilities" — i.e., potential 
rights, privileges, etc.^°^ 

Has he not, however, actual, exclusively equitable rights in rem, 
that is. respective multital rights against T and other persons indis- 
criminately that they shall not seriously and permanently harm the 
land ? There are numerous decisions to the effect that Y has an ex- 
clusively equitable right that the life tenant, X, shall not commit 
"waste." It is clear, also, that the reasons are equally great for 
recognizing exclusively equitable rights against persons in general 
that they shall not harm the land and defeat the "legal" (i.e., con- 
currently legal and equitable) rights, privileges, etc., of the remainder- 
man if his estate should ever vest "in interest" and, ultimately, in 
"possession and enjoyment," — that is, exclusively equitable multital 
rights, or rights in rem. The dicta in the cases relating to waste afford 
strong support for this conclusion. ^^^ Similarly, suppose that J con- 
veys the absolute legal title of Greenacre to K to secure a debt of 
$10,000, the agreement being that K is to be entitled to possession 
until the maturity of the debt and that when the debt is paid K is to 

quoted ante, n. 11. The learned judge there refers to a proceeding under a writ 
of assistance as a means by which the "strict primary decree in personam" of a 
«ourt of equity could sometimes be ' ' enforced in rem. ' ' 

Consider also the power of a court of equity to proceed [quasi] in rem in mort- 
gage foreclosure cases: extinguishment of the "equity of redemption." Cf. Paget 
V. Ede (]874), L. R. 18 Eq., 118. 

109 This statement should, in strictness, be qualified. 

Even at common law the contingent remainderman had the actual, or present, 
legal power to ' ' release ' ' his interest to the owner of the estate in possession. The 
power to devise, and the power to make a so-called "equitable assignment" should 
also be considered. 

Very generally the contingent remainderman now has, as a result of statute, the 
present legal power to alienate his potential interest inter vivos. 

110 Compare the following statements from judicial opinions: 

. Mr. Justice Battle, in BrasweU v. Morehead (18.52), 45 N. C, 26. 28: 
* ' Owners of executory bequests, and other contingent interests, stand in a 



AS APPLIED IX JUDICIAL REASONING 113 

reconvey the al)solute lej^al title to J. While K is thus in possession, 
JM threatens to cut down the ornamental trees on the place. If the 
threatened acts were committed, J would of course liavf- no legal 
remedy, since the "legal" rights in nm (i.e., rights concurrently legal 
and equitable ),^^^ are now vested in K. It would, however, seem clear 
on prnieiple that J is entitled to an injunction against ]M,"- or, in 
other words, that J has exclusively equitable )nultifal rights, or rights 
in rem, relating directly to the physical corpus of the property. The 
nature of the equitable rights, privileges, powers, and imiiiuinties of 

position, in this respect, similar to vested remaindermen, and have a similar right 
to the protective jurisdiction of the Court" (i.e., court of chancery). 

Mr. Justice Connor, in Latham v. Eoanol-e, etc., Co. (190.5), 51 8. E. (X. C), 
780: 

"The interest of a contingent remainderman in the timl)er will he protefte<l bv 
a court of equity by injunction." 

Mr. Justice Shaw, in Pavkovitch v. Southern Pacific E. Co. (1006), 150 Cal., 
39, 50: 

"The plaintiff's interest is not vested (Civ. Code, sees. 693, 695) ; and hence he 
has no present property in the rock removed, for the value of which damages can 
be computed, or to which he could have the right of present possession. . . . But 
the rule is different ^vith regard to the equitable remedy by injunction. The 
owner of a contingent interest may protect that interest against deterioration or 
destruction by enjoining a threatened waste." 

Ill For the classification of jural relations as "concurrently legal and equitable" 
and "exclusively equitable," see The Relations between Equiin and Law, (1913) 
11 Michigan Law Review, 537, reprinted infra. 

'i^^- Smith V. CoUyer (1803), 8 Ves., 89, seems to have been such a case. The 
injunction was, to be sure, refused by Lord Eldon, — solely on the ground, however, 
that at that time bills to enjoin a "trespass" as distinguished from "waste" had 
not yet been definitely sanctioned by the court. Counsel for plaintiff argued: 
"The plaintiffs have no means of preventing or redressing this at law, the mort- 
gagee having the legal title; and the mischief will ])e irremediable." Lord Eldon 
replied: "I do not recollect any instance of this sort. ... It is not waste, but 
trespass by their own showing. There was no instance of an injunction in trespass 
till the case before Lord Thurlow upon a mine; to which I have alluded; which, 
though trespass, was very near waste. In that case, the first instance of granting 
an injunction in trespass, there was no dispute \^■hatsoever about the right. Here 
the right is disputed." 

See also Mr. Justice Brewer, in ^Vilson v. EockircU (1886). 20 Fcil., 674: 

"The facts stated in the bill give complainants a clear right to a preliminary 
injunction. It is immaterial whether the legal title be in complainants or the 
Woodmass of Alston Company. The dispute between them does not concern tres- 
passers. Both parties are in court, the company being made defendant. The full 
equitable title or ownership is with complainants, and a court of equity will protect 
the owners, as against trespasser's, although the location of the legal title has not 
been finally determined." 

In such a case as that relating to mortagor and mortgagee, the situation is not 
fundamentally different from that of In re Xisbet 4' Potts' Contract [1906], 1 Ch., 



114 FUNDAMENTAL LEGAL CONCEPTIONS 

the cestui que trust is too large a subject for adequate treatment in the 
present place ; and so any further consideration of that interesting 
subject must be reserved for another occasion.^^^ It is hoped, however, 
that the various classes of rights and remedies already discussed are 
sufficient to show that the intrinsic nature of substantive primary 
rights — whether they be rights in rem or rights in personam — is not 
dependent on the character of the proceedings by which they may be 
vindicated."* 

Wesley Newcomb Hohfeld. 
Yale University, School of Law. 

386 — a case indicating that the equitable beneficiary of a restrictive agreement 
relating to land (sometimes called an "equitable easement") has rights even 
against wrongful possessors, or disseisors, of the ' ' servient ' ' land that they shall 
not act contrary to the terms of the restrictive agreement. In the latter case, as 
in that of the mortgagor and mortgagee, the legal owner of the land on which the 
acts of the defendant are done is not the equitaile "agent" or "guardian" of 
the equitable beneficiary; and hence the grounds are peculiarly strong for giving 
to the equitable beneficiary direct equitable rights against all persons in respect 
to the physical corpus. 

113 See The Selations hetween Equity and Law, (1913) 11 Michigan Law Eeview, 
537, reprinted infra, where the writer has sought to analyze most of the elements 
comprised in the interest of a cestui que trust. 

See also Supplemental Note on the Conflict of Equity and Law, reprinted infra. 

11* Compare Bacon, Uses {circa 1602), Eowe's ed., 5-6; "So that usus 4' status, 
sive possessio, potius differunt secundum rationem fori, quam secundum naturam 
rei, for that one of them is in court of law, the other in court of conscience. ' ' 

Compare also Lord Dunedin, in Nocton v. Ashinrton [1914], A. C, 932, 964: 

"And then there are the duties which arise from a relationship without the 
intervention of contract in the ordinary sense of the term, such as the duties of a 
trustee to his cestui que trust or of a guardian to his ward. It is in this latter 
class of cases that equity has been peculiarly dominant, not, I talce it, from any 
scientific distinction between the classes of duty existing and the breaches thereof, 
but simply because in certain cases where common justice demanded a remedy, the 
common law had none forthcoming, and the common law (though there is no harder 
lesson for the stranger jurist to learn) began with the remedy and ended with the 
right. ' ' 



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Hohfeld, Wesley Newcomb 

Pundcunental legal 
conceptions