the title in the donee by terminating the donor's right or power of defeasance. The property passes from the donor to the donee directly *** and after his death it is liable to be divested 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. Kirkendall is interesting:

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

While the term in question has the broad generic commotation 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 California statute involved in the case of Lattin v. Gillette. Said Mr. Justice Harrison:

"The word 'liability' is the condition in which 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."

1190

87 (1873) 36 Ia., 224, 226.

88 Compare Attorney General v. Sudeley (1896), 1 Q. B., 354, 359 (per Lord Esher: "What is called a 'right of action' is not the power of bringing an action. Anybody can bring an action though he has no right at all."); Kroessin v. Keller (1895), 60 Minn., 372 (per Collins, J.: "The power to bring such actions").

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

90 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 privileges, 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 his favor (though against his will) a privilege and a power relating to the watch, that is, the privilege 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.

Immunities and Disabilities. As already brought out, immunity is the correlative of disability ("no-power"), and the opposite, or negation, 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. Similarly, 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 ordinary 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 others. Similarly, if an agent has been duly appointed by X to sell a given piece of property, then, as to the latter, X has, in relation to such agent, a liability rather than an immunity. For over a century there has been, in this country, a great deal of important litigation involving immunities from powers of taxation. If 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 coming before the United States Supreme Court. Thus, in Phoenix Ins. Co. v. Tennessee, Mr. Justice Peckham expressed the views of the court as follows:

91

"In granting to the De Sota Company 'all the rights, privileges, and immunities' of the Bluff City Company, all words are used which could be regarded as necessary to carry the exemption from

91 (1895) 161 U. S., 174, 177.

taxation possessed by the Bluff City Company; while in the next following grant, that of the charter of the plaintiff in error, the word 'immunity' is omitted. Is there 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 definitely an intention to include therein an exemption from taxation than does either of the other words. Exemption from taxation is more 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."

92

In Morgan v. Louisiana, there is an instructive discussion from the pen of Mr. Justice Field. In holding that on a foreclosure sale of the franchise and property of a railroad corporation an immunity from taxation did not pass to the purchaser, the learned Judge said:

"As has been often said by this court, the whole community is interested in retaining the power of taxation undiminished ***. The exemption of the property of the company 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 several of the states.""

92 (1876) 93 U. S., 217, 222.

93 See, in accord, Picard v. Tennessee, etc., R. Co. (1888), 130 U. S., 637, 642, (Field, J.); Rochester Railway Co. v. Rochester (1906) 205 U. S., 236, 252 (Moody, J., reviewing the many other cases on the subject).

In Internat. & G. N. Ry. Co. v. State (1899), 75 Tex., 356, a different view was taken as to the alienability of an immunity from taxation. Speaking by Stayton, C. J., the court said:

"Looking at the provisions of the Act of March 10, 1875, we think there can be no doubt 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 whosover 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 sufficient to pass title to any other property from one person 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

So far as immunities are concerned,the two judicial discussions last quoted concern respectively problems of interpretation and problems 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 especially true as regards exemptions from taxation and exemptions from execution.95

96

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 legislature not to grant the benefit claimed by the bill."

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 corporation, for the benefit of those who may have a right to or just claim upon its assets."

Compare, as regard homestead exemptions, Sloss, J., in Smith v. Bougham (1909), 156 Cal., 359, 365: "A declaration of homestead * * * attaches certain privileges and immunities to such title as may at the time be held."

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

The

95 See Brearly School, Limited v. Ward (1911), 201 N. Y., 358; 94 N. E., 1001 (an interesting decision, with three judges dissenting). 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. & G. N. Ry. Co. v. State (1899), 75 Tex., 356, quoted from, ante, n. 91.

97 Compare also Wilson v. Gaines (1877), 9 Baxt. (Tenn.), 546, 550551, 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 following in immediate succession, viz.,' immunities' and 'exemptions,' either of which would have made clear the construction claimed by complainant, evidence a purposed intention on the part of the

Only very rarely is a court found seeking to draw a subtle distinction between an immunity and an exemption. Thus, in a recent case, Strahan v. Wayne 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 inheritance tax) because it is dower, but because it ✶✶✶ belonged to her unchoately 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."

to note, also, that the word "impunity" has a very similar connotation. This is made evident by the interesting discriminations of Lord Chancellor Finch in Skelton v. Skelton,98

in 1677:

a case decided

"But this I would by no means allow, that equity should enlarge the restraints of the disabilities introduced by act of parliament; and as to the granting of injunctions to stay waste, I took a distinction where the tenant hath only impunitatem, and where he hath jus in arboribus. If the tenant have only a bare indemnity or exemption from an action (at law), if he committed waste, there it is fit 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 compared in some detail, the purpose having been to exhibit not only their intrinsic meaning and scope, but 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 branch of the discussion a general suggestion may be ventured as to the great practical importance of a clear appreciation of the distinctions and discriminations set forth. If a homely metaphor be permitted, these eight conceptions,—rights and duties, privileges and no-rights, powers and liabilities, immunities and disabilities,seem to be what may be called "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

98 (1677) 2 Swanst., 170.

99 In Skelton v. Skelton, it will be observed, the word "impunity” and the word "exemption" are used as the opposite of liability to the powers of a plaintiff in an action at law.

For similar recent instances, see Vacher & Sons, Limited v. London Society of Compositors (1913), A. C. 107, 118, 125 (per Lord Macnaghten: "Now there is 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 Baylies v. Bishop of London (1913), 1 Ch., 127, 139, 140, per Hamilton, L. J.

For instances of the apt use of the term "disability" as equivalent to the negation of legal power, see Poury v. Hordern (1900), 1 Ch., 492, 495; Sheridan v. Elden (1862), 24 N. Y., 281, 384.