phrases, or obvious'y 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."85

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 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."36

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 entertaining 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 define the former relation substantially according to the more limited meaning of "claim." Legal privileges, powers, and immunities are prima facie ignored, and the impression conveyed that all legal relations can be comprehended under the conceptions, "right" and "duty." But, with the greatest hesitation and deference, the suggestion may be ventured that a number of his examples seem to show the inadequacy 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."38

This passage seems to suggest primarily two classes of relations: first, the party's respective privileges, as against A, B, C.

85 El. Jurisp. (10th ed.), 83.

86 Ibid., 82.

87 See Nat. and Sources of Law (1909), secs. 45, 184.

38 Ibid., sec. 48.

D and others in relation to eating the salad, or, correlatively, the respective "no-rights" of A. B. C. D and others that the party should not eat the salad; second, the party's respective rights (or claims) as against A, B. C. D 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 mentioned 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, but we don't agree not to interfere with you." In such a case 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 equally clear that if A had succeeded in holding so fast to the dish that X couldn't eat the contents, no right of X would have been violated.39

Perhaps the essential character and importance of the distinction can be shown 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,

In sec.

39 Other instances in Professor Gray's work may be noted. 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.

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.40

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 way, 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 correl..tive 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 nugatory 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 that is the fair connotation of the term as used the first three times in the passage quoted. It is equally clear, as already indicated, that such a privilege or liberty to deal with others at wil might very conceivably exist without any peculiar concomitant rights against "third parties" as regards certain kinds of interference. Whether there should be such concomitant rights. (or claims) is ultimately a question of jus'ice and policy; and it shcu'd be considered, as such, on its merits. The only correlative logical'y implied by the privileges or liberties in question are the "no-rights" of "third parties." It would therefore be a non

43

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.

48 Compare Allen v. Flood (1898), A. C., 1.

sequitur to conclude from the mere existence of such liberties that "third parties." are under a duty not to interfere, etc. Yet in the middle of the above passage from Lord Lindley's opinion there is a sudden and question-begging shift in the use of terms. First, the "liberty" in question is transmuted into a “right," and then, possibly under the seductive influence of the latter word, it is assumed that the "correlative" must be "the general duty of every one not to prevent," etc.

Another interesting and instructive example may be taken from Lord Bowen's oft-quoted opinion in Mogul Steamship Co. v. McGregor.**

"We are presented in this case with an apparent conflict or an inɔmy between two rights that are equally 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 apparent; but this fact seems to be obscured by the very indefinite and rapidly shifting meanings with which the term "right" 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 must 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 the defendants have no privileges ("no-privilege" equals duty of opposite tenor).45

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

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 Law1 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 singulare s. exorbitans). 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 (beneficium juris) or privilege (privilegium)

First a special law, and then by association of ideas, a special advantage 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) belonging either to some individual or to some particular class of persons.48 There are, indeed, a number of judicial opinions

He may act

under the circumstances stated requires no cause or excuse. 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