fundamental legal conceptions in judicial reasoning


  • [35] 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.”

  • No doubt, as already indicated, it is very common to use the term “right” indiscriminately, even when the relation designated is really that of privilege;[34] and only too
    often this identity of terms has involved for the particular speaker or writer a confusion or blurring of ideas.

  • It may well be that one’s view as to the correct analysis of such interests would control the decision of a number of specific questions.

  • [24] ________________________________________ FUNDAMENTAL JURAL RELATIONS CONTRASTED WITH ONE ANOTHER One of the greatest hindrances to the clear understanding, the incisive
    statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties,” and that these latter categories are therefore adequate for the purpose
    of analyzing even the most complex legal interests, such as trusts, options, escrows, “future” interests, corporate interests, etc.

  • That being so, if further evidence be needed as to the fundamental and important 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 conception.

  • It is sometimes necessary to consider, also, what may, from the particular point of view, be regarded as negative operative facts.

  • If, as is usual, the term means “facts put in issue by the pleadings,” the expression is an unfortuante one.

  • In legal discourse, as in daily life, it may frequently be used in the sense of 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.

  • [9] So, too, in certain questions in the law of perpetuities, the intrinsic nature of equitable interests is of great significance, as attested [10] by the well-known Gomm
    case[11] and others more or less similar.

  • These two groups of relations seem perfectly distinct; and the privileges could, in a given case exist even though the rights mentioned did not.

  • In his chapter on “Legal Rights and Duties” the distinguished author takes the position that a right always has a duty as its correlative;[37] and he seems to define the former
    relation substantially according to the more limited meaning of “claim.”

  • [12] 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 possible kinds of jural interests, legal as well as equitable,—and that too, whether we are concerned with “property,” “contracts,” “torts,” or any other title of the law.

  • For the purpose of subsequent convenient reference, it seems necessary at this point to lay emphasis upon another important distinction inherent in the very nature of things.

  • It now remains to observe that in many situations a single convenient term is employed to designate (generically) certain miscellaneous 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.

  • For one thing, the association of ideas involved in the two sets of relations—the physical and the mental on the one hand, and the purely legal on the other—is in the very
    nature of the case, extremely close.

  • But, quite apart from the presumably practical consideration of endeavoring to “think straight” in relation to all legal problems, it is apparent that the true analysis of
    trusts and other equitable interests is a matter that should appeal to even the most extreme pragmatists of the law.

  • With this end in view, the present article and another soon to follow will discuss, as of chief concern, the basic conceptions of the law,—the legal elements that enter into
    all types of jural interests.

  • 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.

  • 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.

  • Thus Professor Holland, in his work on Jurisprudence, referring to a different and well known sort of ambiguity inherent in the Latin “Ius,” 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.

  • 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.

  • Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things;[19] so that their use
    in connection with legal relations is, strictly speaking, figurative or fictional.

  • 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 operative 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.

  • While the whole chapter must be read in order to appreciate the seriousness of this lack of discrimination 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.

  • Perhaps, however, it would have to be admitted that even the great intrinsic interest of the subject itself and the noteworthy divergence of opinion existing among thoughtful
    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.

  • [29] It is interesting to observe, also, that a tendency toward discrimination may be found in a number of important constitutional and statutory provisions.

  • [30] 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 word in question
    to a definite and appropriate meaning.

  • If one were thoughtless, he would be apt to say that this is a case where part of the operative facts creating the original obligation are directly presented to the senses
    of the tribunal.

  • In passing, it may not be amiss to notice that the term, “facts in issue,” is sometimes used in the present connection.

  • Passing to the field of contracts, we soon discover a similar inveterate 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.

  • Similarly, and more obviously, the pleading in an ordinary action involving so-called negligence, is usually very generic in character,[21] so that any one of various possible
    groups of specific operative facts would suffice, so far as the defendant’s obligation ex delicto is concerned.

  • 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.

  • 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.

  • Obvious as this initial suggestion may seem to be, the arguments that one may hear in court almost any day and likewise a considerable number of judicial opinions afford ample
    evidence of the inveterate and unfortunate tendency to confuse and blend the legal and the nonlegal quantities in a given problem.

  • 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.

  • But the general tendency to confuse legal and non-legal quantities is manifest here as elsewhere; so that only too frequently these words are used rather nebulously to indicate
    legal relations as such.

  • Another useful passage is to be found in the opinion of Sherwood, J., in St. Louis v. Hall:[17] Sometimes the term is applied to the thing itself, as a horse, or a tract of
    land; these things, however, though the subjects of property, are, when coupled with possession, but the indicia, the visible manifestation of invisible rights, “the evidence of things not seen.”

  • Thus, we are told by Pollock and Maitland: Ancient German law, like ancient Roman law, sees great difficulties 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 corporeal thing.

  • 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 create in Y the privilege of self-defense,—that 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, immediately terminated or extinguished.

  • This fact has necessarily had a marked influence upon the general doctrines and the specific rules of early systems of law.

  • Indeed, it would be virtually impossible 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.

  • Recognition of this ambiguity is also found in the language of Mr. Justice Jackson, in United States v. Patrick:[27] The words “right” or “privilege” have, of course, a variety
    of meanings, according to the connection or context in which they are used.

  • If, therefore, the title of this article suggests a merely philosophical inquiry as to the nature of law and legal relations,—a discussion 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, every-day problems of the law.

  • 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.

  • If X says that he has his transferred his watch to Y, he may conceivably meal, 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.

  • As another instance of this essentially metaphorical use of a term borrowed from the physical world, the word “power” may be mentioned.

  • 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.

  • 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.

  • [20] For example, in the creation of a contractual obligation 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.

  • Putting the matter in another way, the tendency—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.

  • As said by Mr. Justice Strong in People v. Dikeman:[26] The word “right” is defined by lexicographers to denote, among other things, property, interest, power, prerogative,
    immunity, privilege (Walker’s Dict.

  • [18] 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.

  • 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
    conspicuously exemplifies the need for dealing somewhat more intensively and systematically than is usual with the nature and analysis of all types of jural interests.

  • In this connection the suggestion may be ventured that the usual discussions 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.

  • On the other hand, the limits of space inherent in a periodical article must furnish the excuse for as great a brevity of treatment as is consistent 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.

  • A later article will deal specially with the analysis of certain typical and important interests of a complex character,—more particularly trusts and other equitable interests.

  • Still further on he says: An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable
    within, the same.

  • 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.

  • Even if the difficulty related merely to inadequacy and ambiguity of terminology, its seriousness 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.

  • From very early days down to the present time the essential nature of trusts and other equitable interests has formed a favorite subject for analysis and disputation.

  • Passing now to the question of “correlatives,” it will be remembered, of course, that a duty is the invariable correlative of that legal relation which is most properly called
    a right or claim.

  • For that reason, it is hoped that the more learned reader may pardon certain parts of the discussion that might otherwise seem unnecessarily elementary and detailed.

  • That being so, it is clear that the real and specific facts finally relied on are comparatively seldom put in issue by the pleadings.

  • Similar difficulties seem to exist in Professor Gray’s able and entertaining work on The Nature and Sources of Law.

  • The classical discussions of Bacon[1] 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 textbooks on trusts.

  • In short, it is submitted that the right kind of simplicity can result only from more searching and more discriminating analysis.

  • In this connection, the language of Lord Watson in Studd v. Cook[33] is instructive: Any words which in a settlement of moveables would be recognized 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.

  • * * * This right of user necessarily includes the right and power of excluding others from using the land.

  • 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.

  • At times, also, the term is used in such a “blended” sense as to convey no definite meaning whatever.

  • It therefore could not be said that any one of such groups had been put in issue by the pleadings.

  • 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.

  • Thus, if, for some special reason, X has contracted 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 duty
    of entering.

  • This point will be reached again, when we come to treat of the “transfer” of legal interests.

  • 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.


Works Cited

[‘Wesley Newcomb Hohfeld.
Stanford University, California.
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: Jus 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 dominium fiduciarium: Use is an ownership in trust.
So that usus & 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 common 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. 11. It is also noticed in Maitland, Lectures on Equity (1909), pp. 43, 116.
3. ↑ See Langdell, Classification of Rights and Wrongs (1900), 13 Harv. L. Rev., 659, 673: “Can equity then create such rights as it finds to be necessary
for the purposes of justice? As equity wields only physical power, it sems to be impossible that it should actually create anything. * * * 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. * * *
“Shutting our eyes, then, to the fact that equitable rights are a fiction, and assuming them to have an actual existence, what 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 Harv. L. Rev., 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 Eq. Plead. (2nd ed., 1883) secs. 45, 182–184.
4. ↑ See Ames, “Purchase for Value Without Notice”
(1887), 1 Harv. L. Rev., 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 owns is the obligation of the trustee; for an obligation
is as truly the subject matter of property as any physical res. The most striking difference between property in a thing and property in an obligation is in the 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 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 ownership 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.”
5. ↑ Lect. on Eq. (1909), 17, 18, 112:
“The thesis that I have to maintain is this, that equitable estates and interests are not jura 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 provisions of that part of the English law which is called equity, a contract to sell at once vests jus in rem or ownership in 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 buyer, 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.”
7. ↑
(2nd 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 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 fictitiously attributed by the law, to the intent that the rights and powers thus rested in a nominal owner shall
be used by him on behalf of the real owner.”
8. ↑ See A. N. Whitlock, Classification of the Law of Trusts (1913), 1 Calif. Law Rev., 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 and cumbrous expressions as these could hardly fail to make “confusion worse confounded.”
9. ↑ 10
See Beale, Equitable Interests in Foreign Property, 20 Harv. L. Rev. (1907), 382; and compare the important cases, Fall v. Eastin (1905), 75 Neb., 104; S. C. (1909), 215 U. S., 1, 14-15 (especially concurring opinion of Holmes, J.); Selover, Bates
& Co. v. Walsh (1912), 226 U. S., 112; Bank of Africa Limited v. Cohen (1909), 2 Ch. 129, 143.
10. ↑ See Walter G. Hart (author of “Digest of Law of Trusts”), The Place of Trust in Jurisprudence (1912), 28 Law Quart. Rev., 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 sui generis?”
11. ↑ 11 (1882) 20 Ch. D. 562, 580, per Sir George Jessel, M. R.
“If then the rule as to remoteness applies to a covenant of this nature, 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 appears to me, does or does not the
covenant give an interest in the land? * * * If it is a mere personal contract it cannot be enforced against the assignee. Therefore the company must admit that somehow it binds the land. But if it binds the land, it creates an equitable interest
in the land.”
12. ↑ 12 Compare Ball v. Milliken (1910), 31 R. I., 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.
13. ↑ 2 Hist. Eng. Law (2nd ed., 1905), 226.
14. ↑ Ibid., 124.
15. ↑ (1895) 67 Fed. Rep., 674, 677. For a somewhat similar, and even more confusing, form of statement, see In re Fixen (1900), 102 Fed. Rep., 295, 296.
16. ↑
51 N. H., 504, 511. Se also the excellent similar statements of Constock, J., in Wynehamer v. People (1856), 13 N. Y., 378, 396; Selden J., S. C., 13 N. Y., 378, 433–434; Ryan, C., in Law v. Rees Printing Co. (1894), 41 Neb., 127,. 146; Magruder,
J., in Dixon v. People (1897), 168 Ill., 179, 190.
17. ↑ (1893) 116 Mo., 527, 533–534. That the last sentence quoted is not altogether 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. J., in Smith v. Fairloh (1894), 68 N. H., 123, 144–145. (“By considering the property dissolved into the legal rights of which it consists” etc.)
18. ↑ 2 Black. Com. (1765), 16–43.
19. ↑
19 Compare Poll. & Mait. Hist. Eng. Law (2nd 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.
20. ↑ Compare Waldo, C. J., in White v. Multonomah 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 appertains to the substance of the right.”
The present writer’s choice
of the term “operative” has been suggested by the following passage from Thayer, Prelim. Treat. Evid. (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, Jurisp. (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 ordinary language. He describes this whole class of facts as ‘Dispositive’; distinguishing 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.”
21. ↑ Compare, however,
Illinois Steel Co. v. Ostrowski (1902), 194 Ill., 376, 384, correctly sustaining a declaration alleging the operative facts specifically instead of generically, as required by the more approved forms of pleading. The rules of pleading determining
whether allegations must be generic or specific—and if the latter, to what degree—are, like other rules of law, based on considerations of policy and convenience. Thus the facts constituting fraud are frequently required to be alleged in comparatively
specific form; and similarly as regards cruelty in an action for divorce based on that ground. The reasons of policy are obvious in each case.
22. ↑ Compare McCaughey v. Schuette (1897), 117 Cal., 223. While the decision in this case can be supported,
the statement that the specific facts pleaded were “evidentiary” 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 Rogers v. Milwaukee, 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 senses; 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).
24. ↑ As an example of this, compare Lord Westbury, in Bell v. Kennedy (1868); L. R. 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.”
Contrast the far more accurate language of Chief Justice Shaw, in Abington v. Bridgewater (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 (1898), p. 190, 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 carefully revised. Law is not so unlike all other subjects of human contemplation that clearness of thought will not help us powerfully in grasping it. If terms in common legal
use are used exactly, it is well to know it; if they 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 great constructive contribution to the law of evidence
is his constant insistence on the need for clarifying our legal terminology, and making careful “discriminations” between conceptions and terms that are constantly being treated as if they were one and the same. See, e.g., Ibid., pp. vii, 183, 189–190,
278, 306, 351, 355, 390–393. How 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 times 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 charactistic 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 thereafter for a long time cease to provoke further analysis.”
See also, Field, J., in Morgan v. Louisiana (1876), 93 U. S., 217, 223, and Peckham. J. in Phoenix Ins. Co. v. Tennessee (1895), 161 U. S.,
174, 177, 178.
26. ↑ (1852) 7 How. Pr., 124, 130.
27. ↑ (1893) 54 Fed. Rep., 338, 348.
28. ↑ (1871) 3 Heisk. (Tenn.), 287, 306–307.
29. ↑ See also, for similar judicial observations, Atchison & Neb. R. Co. v. Baty (1877), 6 Neb., 37, 40. (The
term right in civil society is defined to mean that which a man is entitled to have, or to do, or to receive from others within the limits prescribed by law.”) ; San Francisco v. S. V. Water Co. ( ), 48 Cal., 531 (“We are to ascertain the rights,
privileges, powers, duties and obligations of the Spring Valley Water Co., by reference to the general law.”).
Compare also Gilbert, Evid. (4th ed., 1777), 126: “The men of one county, city, hundred, town, corporation, or parish are evidence in relation
to the rights privileges, immunities and affairs of such town, city, etc.”
30. ↑ 30 See Kearns v. Cordwainers’ Co. (1859), 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 owners * * * of any lands * * * are now by law entitled.”); Fearon v. Mitchell (1872), L. R. 7 Q.
B., 690, 695 (“The other question remains to be disposed of, as to whether the case comes within the proviso of s. 50 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 person without his consent.'”); Cal. Civ. Code, sec. 648a: “Building and loan associations may be formed under this title with or without guarantee or other capital stock, with all 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 * * *”).
31. ↑ (1894) 10 Ind. App., 60; 37 N. E., 303, 304.
32. ↑ See also Howley Park Coal, etc., Co. v. L. & N. W. Ry. (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. Ry. Co. v. Harrigan (1903),
76 S. W., 452, 453 (Tex. Civ. App.).
33. ↑ (1883) 8 App. Cas., at p. 597.
34. ↑ For merely a few out of numberless judicial instances of this loose usage, see Pearce v. Scotcher (1882), L. R. 9 Q. B., 162, 167; Quinn v. Leathen (1901), A. C. 495
(passim); Allen v. Flood (1898), A. C. 1 (passim); Lindley v. Nat. Carbonic Acid Gas Co. (1910), 220 U. S., 61, 75; Smith v. Cornell Univ. (1894), 45 N. Y. Supp., 640, 643; Farnum v. Kern Valley Bk. (1910), 107 Pac., 568. See also post, n. 38.
35. ↑
El. Jurisp. (10th ed.), 83.
36. ↑ Ibid., 82.
37. ↑ See Nat. and Sources of Law (1909), secs. 45, 184.
38. ↑ Ibid., sec. 48.
39. ↑ Other instances in Professor Gray’s work may be noted. In sec. 53, 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 power effectually
to call for aid from an organized society against another, but also the power to call effectually upon the society to abstain from 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 immunities relating to the supposed action at law.
In sec. 102, the same learned author says: “If there is an ordinance that the town constable may kill
all dogs without collars, the constable may have a legal 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—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, secs. 145, 186.
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.
41. ↑ (1901) A. C., 495, 534.
42. ↑ See post, pp. 38–44.
43. ↑ Compare Allen v. Flood (1898), A. C., 1.
44. ↑ (1889) 23 Q. B. D., 59.
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 careful 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 plaintiff 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. Leathem (1901), A. C., 495, 533; Lindsley v. Natural Carbonic Gas Co (1910), 220 U. S.,
61, 74; Robertson v. Rochester 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 published.”); Wabash, St. L. & P. R. Co. v. Shacklet (1883), 105 Ill., 364, 389.
In Purdy v. State (1901), 43 Fla., 538, 540, the anomalous expression “right of privilege” is employed.
46. ↑ (Dropsie Tr.) secs. 196–197.
47. ↑
The same matter is put somewhat less clearly in Sohm’s Institutes (Ledlies Tr., 3rd ed.), 28.
See also Rector, etc. of Christ Church v. Philadelphia (1860), 24 How., 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 Ley, there is the following definition: “‘Privi- leges’ 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 taking animals ferae naturae on the land of another; and
in like manner the game when taken by virtue of the privilege becomes the absolute property of the owner of the franchise.”
49. ↑ See Humphrey v. Pegues (1872), 16 Wall., 244, 247, per Hunt, J.: “All the ‘privileges’ as well as powers and rights
of the prior company, were granted to the latter. A more imporant or more comprehensive privilege than a perpetual immunity from taxation can scarcely be imagined. It contains the essential 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., 337, 342; Lonas v. State (1871), 3 Heisk., 287, 306, 307; Territory v Stokes (1881), 2 N. 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 Wisener v. Burrell (1911), 28 Okla., 546.
50. ↑ Compare Louisville & N. R Co. v. Gaines (1880), 3 Fed. Rep., 266, 278, per 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 the 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 substantive law. But,
as the writer has had occasion to emphasize on another occasion (The Relations betwen Equity and Law, 11 Mich. L. Rev., 537, 554, 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.
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 term in question, see Borland v Boston (1882), 132 Mass., 89 (“municipal rights, privileges, powers or duties”); Hamilton v. Graham (1871), L. R. 2 H. L. (Sc.), 167, 169, per Hatherley, L. C.; Jones v. De Moss
(1911), 151 Ia., 112, 117; Kripp v. Curtis (1886), 71 Cal., 62, 63; Lamer v. Booth (1874), 50 Miss., 411, 413; Weller v. Brown (1911), Cal., ; 117 Pac., 517; Mathews v. People (1903), 202 Ill., 389, 401; Abington v. North Bridgewater (1840), 23 Pick.,
58. ↑ (1898) A. C., 1, 29.
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 (1899), 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, moreover, 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 (2nd 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 that lawful power or liberty is different
from the right not to be interfered with; but for the reason just given this opinion, though plausible, does not seem correct.” Compare also Pollock, Essays in Jurisp. & Ethics (1882), Ch. I.
It is difficult 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 betwen 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 “unlawful.” Compare Thomas v. Sorrel (1673), Vaughan, 331, 351.
60. ↑ Compare Dow 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 this and the next case to be cited, along with the liberty or privilege there are associated powers and rights, etc.: for instance,
the power to acquire a title to the things severed from the realty); Bourne v. Taylor (1808), 10 East., 189 (Ellenborough, 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”); Wickham v. Hawkes (1840), 7 M. & W., 63, 78–79; Quinn v. Leathem (1901), A. C. 495, 534 (per Lord Lindley:
see quotation aent, p. ); Pollock v. Farmers’ Loan & Trust Co. (1895), 157 U. S., 429, 652 (per White, J., “rights and liberties”); Mathews v. People (1903), 202 Ill., 389, 401 (Magruder, C. J.: “It is now well settled that the privilege of contracting
is both a liberty, and a property right.”).
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 p. 38, n. 48), the term “liberty” is occasionally used, especially in the older books, to indicate a franchise, or complex of special rights, privileges, powers, or immunities. Thus in Noy’s Maxims (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. Waterworks v. Schottler (1882), 62 Cal. 69, 106, and Central R. & Banking Co. v. State (1875), 54 Ga., 401, 409. Compare also Rex v. Halifax & Co. (1891), 2 Q. B., 263.
61. ↑ Compare Pond
v. Bates, 34 L. J. (N. 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 H. L. (Sc.), 166, 167; Attersoll v. Stevens
(1808), 1 Taunt., 183; Wickham v. Hawker (1840), 7 M. & W., 63, 78–79.
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 statue 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.
64. ↑ Compare Remington v. Parkins (1873), 10 R. I., 550, 553, per Durfee,
J.: “A power is an ability to do.”
65. ↑ See People v. Dikeman (1852), 7 Howard Pr., 124, 130; and Lonas v. State (1871), 3 Heisk. (Tenn.), 287, 306–307, quoted ante, p.
See also Mabre v. Whittaker (1906), 10 Wash., 656, 663 (Washington Laws of
1871 provided in relation to community property: “The husband shall have the management of all the common property, but shall not have the right to sell or encumber real estate except he shall 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 & Marine Ins. Co. v. Hanck (1876), 63 Mo., 112. 118.
Numberless additional instances might be given of the use of the term “right,” where the legal
quantity involved is really a power rather than a right in the sense of claim.
66. ↑ It is to be noted that abandonment would leave X himself with precisely the same sort of privileges and powers as any other person.
67. ↑ Compare Wynehanter v.
People (1856), 13 N. Y., 378, 396 (Coinstock, J.: “I can form no notion of property which does not include the essential characteristics and attributes with which it is clothed by the laws of society * * * among w Photo credit:’]