Our arbitration treaties with these countries, as with others, followed closely the terms of The Hague convention, and excepted from the agreement to arbitrate differences which affected "the vital interests, the independence or the honor of the two contracting states", and those which concerned the interests of third parties.

What do "vital interests" and "honor" mean? Much or little, according to the temper of the moment, or the interest of the party interpreting them. When this country first made demand on Great Britain for compensation for the depredations of the Alabama and other privateers which had sailed from British waters, Lord Russell replied that this demand concerned the honor of Great Britain, of which only Her Majesty's Government could be the judge. But a few years later it was found entirely compatible with that honor to submit the question to arbitration at Geneva. This was of course before there was any treaty for arbitration. But since there has been one, Great Britain has set us and the world an example of high mindedness and broad statesmanship. In the negotiation for the Fisheries Arbitration it must have been early apparent in the framing of Question One that the United States would call in question the right of Great Britain or its dependencies to legislate within its own jurisdictional waters so as to bind American fishermen. No question can concern national honor more clearly than that of its own sovereignty, its right of legislation within its own jurisdiction, but the question concerned the interpretation of a treaty and Great Britain proceeded with the arbitration. The accord of nations and the negligible character of the exception of national honor were signally exemplified.

Why may not questions of honor be adjudicated? When do interests which may be passed upon in court become so far vital that they cannot be? What assurance can there be that they will be more wisely or justly determined by submission to the chances of battle, or worked out by years of continued friction? The Code of Honor is no longer in force between men. Why should it be between nations?

The proposal of the President of the United States was to discard these time-worn exceptions and to arbitrate "all differences" "which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity." In no way has the good-will between nations

been more emphatically shown than by the reception which this proposal met on both sides of the Atlantic. The Prime Minister

of England and the leader of the opposition united in public acceptance of the principle involved. Thousands of meetings of

celebration of the dawn of a new era of accord were held on both sides of the water. It matters not that the proposal for the moment failed. The proposal itself and its reception erected new monuments to the accord of nations.

Boston, Mass.

Samuel J. Elder.

SOME FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING

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. The classical discussions of Bacon1 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.2 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 oft-repeated

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 rems but an use is re'ther. *** 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 raturam 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 col'aterall, annexed in privitie to the estate of the land, and to the person touching the land, scilicct, 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 orly 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

observations of Maitland in his Lectures on Equity," by the very divergent treatment of Austin in his Lectures on Jurisprudence, by the still bolder thesis of Salmond in his volume on Jurisprudence, and by the discordant utterances of Mr. Harts and Mr. 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, ard that it would not if it could." Compare Ibid. 58; and Summary of Eq. Plead. (2nd ed., 1883) secs. 45, 182-184.

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 costui que trust really owns is the cb'igation of the trustee; for an ob igation is as truly the subject matter of property as ary 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 wit.out 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 obliger. Herce, 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 app'y equally to ownership of things and ownership of obligatiors. 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 th's 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 l'ke jura in rem; but just for this very reason it is the more necessary for us to observe that they are essential'y 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 orce 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 orly 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."

(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

Whitlock in their very recent contributions to our periodical literature.

It is believed that all of the discussions and analyses referred to are inadequate. 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. 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. 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. This is obviously true as regards the solution of many difficult and delicate problems in constitutional law and in the conflict of laws.10 So, too, in certain questions in the law of perpetuities, the intrinsic nature of equitable interests is of great significance, as attested

a mere agent, upon whom the law has conferred the power and imposed he 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 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?"

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 cumbreus expressions as these could hardly fail to make "confusion worse confounded."

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.