# Classification of Rights and Wrongs

Published in the Harvard Law Review, Voume XIII, No. 7, pages 537–556 (March 1900).
ARTICLE IX.
VIII.
CLASSIFICATION OF RIGHTS AND WRONGS.
MORE than twelve years ago, the writer published in this REVIEW, by way of introduction to a series of articles on equity jurisdiction, a classification of those rights which it is the duty of courts of justice to protect and enforce, and also of the wrongs by which such rights may be infringed. The views then stated, having only recently been adopted by the writer, were comparatively crude and undeveloped. Since that date, however, he has given considerable attention to the classification of rights and wrongs, and has made his views upon that subject the basis of an elementary course of instruction on equity jurisdiction; and the result has been that his views of twelve years ago have undergone some modification and much development. It has occurred to him, therefore, that a re-statement of the views now held by him might not be out of place, especially as some of his former pupils, now engaged in teaching, have done him the honor to make some use of his former observations in their own teaching.
As those rights which it is the duty of courts of justice to protect and enforce include equitable as well as legal rights, and as each of these classes of rights requires separate treatment, it will be convenient to begin with legal rights.
Legal rights are either absolute or relative. An absolute right is one which does not imply any correlative obligation or duty. A relative right is one which does imply a correlative obligation or duty.
Absolute rights are either personal rights or rights of property. A personal right is one which belongs to every natural person as such. A right of property is one which consists of ownership or dominion {dominium}.
Every personal right is born with the person to whom it belongs, and dies with him. Personal rights, therefore, can neither be acquired nor parted with, and hence they are never the subjects of commerce, nor have they any pecuniary value. For the same reasons, courts of justice never have occasion to take cognizance of them except when complaints are made of their infringement; and even then the only question of law that can be raised respecting them is whether or not they have been infringed. It follows, therefore, that all the knowledge that we have of personal rights relates to the one question, what acts will constitute an infringement of them. We can neither number them nor define them, and any attempt to do either will be profitless. There is, however, one personal right which differs so widely from most others that it deserves to be mentioned, namely, the equal right of all persons to use public highways, navigable waters, and the high seas.
In all the foregoing particulars, rights of property are the very converse of personal rights. All such rights are acquired, and they may all be alienated. They are all, therefore, the subjects of commerce, and they all have, or are supposed to have, a pecuniary value. For the same reasons, courts of justice take cognizance of them for a great variety of purposes, and they are all capable of being enumerated and defined.
Rights of property are said to be either corporeal or incorporeal. In truth, however, all rights are incorporeal; and what is meant is that the subjects of rights of property (i.e., things owned) are either corporeal or incorporeal. A thing owned is corporeal when it consists of some portion of the material world, and incorporeal when it does not.
A single material thing may be owned by several persons, and that too without any division of it, either actual or supposed, each person owning an undivided share of it; and in that case each owner has a right of property just as absolute as if he were the sole owner of the thing. In case of land also, the ownership, instead of being divided into shares, may be divided among several persons in respect to the time of their enjoyment, one of them having the right of immediate enjoyment, and the others having respectively successive rights of future enjoyment. This peculiarity in the ownership of land comes from the feudal system. Land itself is also peculiar in this, namely, that a physical division of it among different owners is impossible; and hence the land of A, for example, is separated from the adjoining land only by a mathematical line described upon the surface, A's ownership extending to the centre of the earth in one direction, and indefinitely in the other direction. By our law, land is also capable of an imaginary division, for the purposes of ownership, laterally as well as vertically; for one person may own the surface of the land, and another may own all the minerals which the land contains. Such a mode of dividing the ownership of land certainly creates many legal difficulties, but it seems to be persisted in notwithstanding, at least in England. In like manner, by our law, a building is capable of an imaginary division, for purposes of ownership, both lateral and vertical.
Relative rights are either obligations or duties. Strictly, indeed, "obligation" or "duty" is the name of the thing with which a relative right correlates; but such is the poverty of language that we have to use the same word also to express the right itself.
An obligation is either personal or real, according as the obligor is a person or a thing. An obligation may be imposed upon a person either by his own act, i.e., by contract (pbligatio ex contractu), or by act of law (obligatio ex lege, or obligatio quasi ex contractu).
An obligation may be imposed upon a thing either by the law alone, or by the law acting concurrently with the will of the owner of the thing. In the latter case, the will of the owner must be manifested in such manner as the law requires or sanctions. By our law, it is sometimes sufficient for the owner of a thing to impose an obligation upon himself, the law treating that as sufficient evidence of an intention to impose it upon the thing also, — when, for example, the owner of land enters into a covenant respecting it, and the covenant is said to run with the land. The most common way, however, in which an owner of land manifests his will to impose an obligation upon it is by making a grant to the intended obligee of the right against the land which he wishes to confer, i.e., he adopts the same form as when he wishes to transfer the title to the land. If, however, an owner of land, upon transferring the title to it, wishes to impose upon it an obligation in his own favor, he does this by means of a reservation, i.e., by inserting in the instrument of transfer a clause by which he reserves to himself the right which he wishes to retain against the land. An owner of a movable thing imposes an obligation upon it by delivering the possession of it to the intended obligee, declaring the purpose for which he does it, as when a debtor delivers securities to his creditor by way of pledge to secure the payment of the debt. A real obligation is undoubtedly a legal fiction, but it is a very useful one. It was invented by the Romans, from whom it has been inherited by the nations of modern Europe. That it would ever have been invented by the latter is very unlikely, partly because they have needed it less than did the ancients, and partly because they have not, like the ancients, the habit of personifying inanimate things. The invention was used by the Romans for the accomplishment of several important legal objects, some of which no longer exist, but others still remain in full force. It was by means of this that one person acquired rights in things belonging to others (jura in rebus alienis). Such rights were called servitutes (i.e., states of slavery) in respect to the thing upon which the obligation was imposed, and they included every right which one could have in a thing, short of owning it. These servitudes were divided into real and personal servitudes, being called real when the obligee as well as the obligor, i.e., the master (dominus) as well as the slave (servus), was a thing, and personal when the obligee was a person. The former, which may be termed servitudes proper, have passed into our law under the names of easements and profits à prendre. The latter included the pignus and the hypotheca, i.e., the Roman mortgage, — which was called pignus when the thing mortgaged was delivered to the creditor, and hypotheca when it was constituted by a mere agreement, the thing mortgaged remaining in the possession of its owner. Originally, possession by the creditor of the thing mortgaged was indispensable, and so the pignus alone existed; but, at a later period, the parties to the transaction were permitted to choose between a pignus and a hypotheca. So long as the pignus was alone in use, it is obvious that the obligation could be created only by the act of the parties, as they alone could change the possession of the property. But when the step had been taken of permitting the mere agreement of the parties to be substituted for a change of possession, it was another easy step for the law, whenever it saw fit, to substitute its own will for the agreement of the parties; and hence hypothecations came to be divisible into such as were created by the acts of the parties (conventional hypothecations), and such as were created by the act of the law (legal or tacit hypothecations). Again, so long as a change of possession was indispensable, it is plain that the obligation could attach only upon property which was perfectly identified, and that there could be no change in the property subject to the obligation, except by a new change of possession. But when a change of possession had been dispensed with, and particularly when legal or tacit hypothecations had been introduced, it became perfectly feasible to make the obligation attach upon all property, or all property of a certain description, either then belonging to the debtor or afterward acquired by him, or upon all property, or all property of a certain description, belonging to the debtor for the time being; and hence hypothecations came to be divided into those which were special and those which were general.
The pignus has passed into our law under the name of pawn, or pledge, as to things movable, but has been wholly rejected as to land. The conventional hypotheca has been wholly rejected by our common law, though it has passed into our admiralty law. The legal or tacit hypothecation, on the other hand, has been admitted into our common law to some extent, though under the name of lien (a word which has the same meaning and the same derivation as "obligation"). Thus, by the early statute of 13 E. I. c. 18, a judgment and a recognizance (the latter being an acknowledgment of a debt in a court of record, of which acknowledgment a record is made) are a general lien on all the land of the judgment debtor and recognizer respectively, whether then owned by them or afterwards acquired. So also, in many cases, the law gives to a creditor a similar lien on the debtor's movable property, already in the creditor's possession when the debt accrues, though, in respect to the creditor's possession, this lien has the features of a pignus rather than of a hypotheca.
There are also in our law other instances of what the Romans would have called personal servitudes, if they had existed in their law; for example, easements and profits in gross, i.e., easements and profits which exist for the benefit of their owner generally, — not for the exclusive benefit of some particular estate belonging to him. Rents and tithes seem also to fall into the same category.
Passing from obligations to duties, the first thing to be observed is that the latter are either public or private, according as they are imposed for the benefit of individuals as such, or for the benefit of the public, or of some portion of the public.
Duties have attracted very little notice either from courts or from legal writers. There has, indeed, been a general failure, as well in our law as in the Roman law, and also among writers on jurisprudence, to discriminate between obligations and duties; and yet the distinctions between them are many and important. All duties originate in commands of the State; while all obligations originate either in a contract between the parties, or in something which has been done or has happened to the gain of the one and the loss of the other, and under such circumstances as make it unjust for the one to retain the gain or the other to suffer the loss. It is true that every obligation (being a vinculum juris) has in it a legal element, and that those obligations which do not originate in contract are pure creatures of the law: yet, in creating obligations, the only object of the State is to see that all persons within its jurisdiction act justly towards others, while, in imposing duties, it acts from motives of policy, or at least it imposes them as a part of the system of law which it adopts, and without reference to any particular case or any particular persons. Moreover, in creating obligations, the State acts in each particular case, and only after the events have happened which render its action necessary, and in each case its action has reference solely to the parties between whom the obligation is created, while, in imposing duties, the State issues its command once for all, and the command always precedes the duty. In creating obligations, the State acts generally through its courts of justice, while, in imposing duties, it acts directly or indirectly through its legislature, i.e., duties are imposed by positive laws. In short, the necessity for creating an obligation is established by a posteriori reasoning, while the necessity for imposing a duty is established by a priori reasoning. To an obligation there must always be two parties or sets of parties, and neither of them can ever be changed except by authority of law. Of duties, on the other hand, parties cannot properly be predicated, as duties are imposed, not upon identified persons, but upon persons in certain situations, or occupying certain positions, and they are imposed also in favor of persons in certain situations, or occupying certain positions, and, therefore, the person who is to perform a given duty, as well as the person in whose favor it is to be performed, is liable to constant change.
The cases in which duties are imposed, especially by modern statutes, are numberless, and any attempt to enumerate or classify them would be futile. There are, however, many duties, most of which are imposed by ancient statutes, or by rules of the common law or the canon law which have the force of statutes, — which are well known, and some of which it may be well to mention. Probably the most ancient instance to be found is the duty imposed upon an executor to pay legacies. It was originally imposed by the Roman law upon the predecessor of our executor, namely, the heir appointed by the will of a deceased person; but when the Roman empire became Christian, and the Church at length obtained exclusive jurisdiction over the estates of deceased persons, it was by a law of the Church that the duty was imposed. This duty constitutes the only legal means of compelling an executor to pay legacies, as the assets out of which they are to be paid vest in him absolutely, both at law and in equity. A closely analogous duty is that imposed by the Statute of Distributions upon administrators of the estates of intestates to divide the estate among the intestate's next of kin. Another ancient duty (which, however, no longer exists in English-speaking countries) was the duty imposed by the canon law upon every tithe-payer to set out the tithes payable by him, i.e., to sever the tenth part from the other nine parts, and to set apart the former for the tithe-owner. It was by means of this duty alone that payment of tithes could be enforced; for, until tithes were set out, the title to the entire produce of the land was vested in the tithe-payer, but, when the tithes were set out, the title to the tenth part vested in the tithe-owner, who had accordingly, in respect to it, the same common-law remedies as any other owner of chattels. Another ancient instance is the duty imposed by the common law upon the heir of a deceased person to assign dower to the widow of the latter. Here, again, the enforcement of this duty was the widow's only resource, as the title to all the land of which her husband died seized vested in the heir, both at law and in equity. Another very numerous class of duties consists of those which are imposed upon all persons who travel upon public highways, or upon navigable waters (including the high seas), with respect to other persons with whom they come in contact. It is upon these duties that the rights of such persons as against each other wholly depend. Other instances will be found in the well-known duties imposed by the common law upon common carriers and innkeepers, not only towards the employers of the one and the guests of the other, but also towards all those who desire to employ the one or to become the guests of the other; also in the duty imposed by the common law upon professional men, and upon others whose callings require the exercise of special skill, to exercise reasonable skill on behalf of all those by or for whom they are employed. In the cases mentioned in the last sentence, there may, indeed, be a liability on contract; but, on the other hand, in many of those cases there may either be no contract, or none that can be proved, while the duty is always available, and never involves any difficulty as to proof.
Domestic or family relations give rise to a numerous class of duties, but most of them are moral rather than legal, or, at all events, are not such as any court of justice will enforce, and do not, therefore, come within the scope of this article.
Another very numerous and important class of cases consists of those in which duties are imposed upon joint-stock corporations towards their shareholders, and also towards those who establish a right to become holders of their shares. As a rule, these duties furnish the only means by which these two classes of persons can enforce their rights against the corporation. There may be exceptions to this rule, and one exception certainly is where a dividend has been declared (and the declaration of a dividend is the performance of a duty); for then the amount payable to each shareholder becomes a debt, and so, of course, an obligation.
The class of cases, however, in which an alleged breach of duty becomes more frequently the subject of litigation than in all other cases put together, is that in which the duty imposed is to exercise care and diligence to secure the safety of others, or to avoid being the cause of personal harm to others. Such a duty is imposed upon all persons to whom the personal safety of others is largely intrusted, and especially upon all carriers of passengers. A similar duty is also imposed upon all persons whose occupation involves special danger to the public, for example, upon railway companies, or who do or permit to be done, or keep or permit to be kept, upon their own land, what is fraught with a like danger. A breach of this duty is negligence, and whether such breach has been committed is the question to be tried in what is by far the most numerous class of litigated cases with which courts of justice are troubled. Negligence may, indeed, be a breach of contract, and it may also be one of the elements of an affirmative tort, namely, where one person by an affirmative act unintentionally causes harm to another, but might have avoided doing so by the exercise of reasonable care. It would not, however, be too much to say that, in ninety-nine out of every hundred of the reported cases involving a question of negligence, the alleged negligence was a breach of duty.
We are now prepared to inquire why it is that duties have attracted so little attention. Some of the reasons certainly are not far to seek. In several particulars, duties bear a striking resemblance to personal rights. The latter are pure creatures of the law, and are not in the least dependent upon the will or the action of the person to whom they belong. The former also are pure creatures of the law, and are not directly (though they may be indirectly) dependent upon the will or the action either of the person upon whom the burden of them is imposed, or of the person entitled to have them performed. Personal rights accompany their owner from his birth to his death; and while that is not true of duties, yet it is true of every duty that it is a mere legal incident of certain situations, that a person can avoid incurring liability to a duty only by avoiding the situation to which such liability is incident (as he can free himself from a duty, to which he has once incurred liability, only by ceasing to occupy the situation to which such liability is incident); and that a person can acquire a right to the performance of a duty only by placing himself in a situation to which such right is incident, and will lose the right whenever he ceases to occupy that situation. A personal right can neither be bought, nor sold, nor be the subject of commerce, nor have any pecuniary value; and so also the right to have a duty performed can neither be bought, nor sold, nor be the subject of commerce, nor have any pecuniary value, except indirectly, as stated above. As courts of justice can have no occasion to take cognizance of personal rights, except when complaints are made of their infringement, so also the same thing is true of duties; and though a duty, unlike a personal right, may be easily formulated, and the question of its existence is entirely distinct from the question of its infringement, yet the former, in comparison with the latter, very seldom arises, and, even when it does arise, there is little in it to stimulate inquiry beyond the mere practical question whether the person charged was bound to do the thing the not doing of which is the alleged cause of action. If an explanation be asked of the comparative infrequency with which any question as to the existence of a duty arises, it may be answered that a duty once existing continues to exist so long as the statute which imposed it remains in force, or so long as the situation which gave rise to it continues to exist; and that, while an obligation as a rule is capable of but one performance and one breach, and, therefore, when once performed or once broken, is at an end, the same duty may be imposed upon an unlimited number of persons, and may be performed an unlimited number of times, and hence is capable of an unlimited number of breaches.
Having now gone through with the different classes of legal rights, it is next to be observed that a relative right is relative only as between the person to whom the right belongs and the person who is subject to the correlative obligation or duty; and, therefore, so far as such a right concerns the rest of the world, it is an absolute right of the second class, i.e., a property right. Moreover, every relative right which has, or is supposed to have, a pecuniary value, does or may concern the rest of the world. What relative rights then have, or are supposed to have, a pecuniary value? Clearly, all obligations fall within that category; and though in strictness this cannot be said of any duty, yet some duties consist, in whole or in part, in transferring money, or other things of value, to other persons, and when that is the case, and especially when the duty furnishes the only legal means of compelling such transfer, the performance of the duty certainly confers a pecuniary benefit upon the person in whose favor it is performed, and yet, prior to its performance, the only legal right vested in the latter is the right to have the duty performed. Of this description is the duty of an executor to pay legacies, of the administrator of an intestate to divide the personal estate of the latter among his next of kin, and of a tithe-payer to set out tithes.
Probably many persons will be surprised at being told that the legatees and next of kin of deceased persons have no right or interest in the estates out of which their legacies and distributive shares are respectively to be paid. Their surprise ought, however, to cease when they are further told that, by the Roman law, no one could directly dispose of any part of his estate by will; that when a person died, whether testate or intestate, his entire estate vested absolutely and by operation of law in his heir, namely, in his hæres natus if he died intestate, and in his hæres factus if he died testate; that property could be given by will only in the form of legacies, and that legacies could be given only indirectly, namely, by directing the heir to pay them; and, lastly, that our executor and administrator have respectively succeeded, as to personal estate, to the situation of the hæres factus and hæres natus of the Romans. Hence it is that, while the real estate of a deceased person passes, upon his death, directly to his heir, no one can acquire any interest in his personal estate except through his executor or administrator, i.e., through the performance of a duty imposed upon the latter.
It follows from what has been said that all obligations, whether personal or real, and also such duties as have just been described, have two aspects, i.e., they are to be regarded as relative rights, or as absolute rights, according to the point of view from which they are looked at, but with this difference, that, while personal obligations and duties are chiefly to be regarded as relative rights, real obligations are chiefly to be regarded as absolute rights.
It is now necessary to return to the subject of incorporeal things which may be owned, — of which it has thus far only been said that they constitute no part of the material world, and that is no more than saying that they are incorporeal.
Ownership of corporeal things is merely the result of appropriation by individuals to themselves, with the sanction of the law, of portions of the material world; i.e., all material things exist in nature, though their form and appearance may be indefinitely changed, and their value in consequence indefinitely increased or diminished. All that can be done, therefore, respecting them by human will or human action, is to change their form and appearance, and to make them the subjects of individual ownership. Those incorporeal things, however, which may be owned, have no existence in nature, and are all, therefore, of human creation. Moreover, they are all created either by the State alone, or by private persons with the authority of the State. A private person can create incorporeal ownership either against himself or against things belonging to him. He does the former whenever he incurs a personal obligation, i.e., he creates in the obligee a relative right as between the latter and himself, and an absolute right as between the obligee and the rest of the world. So, too, a private person creates an absolute right against himself when he grants an annuity, and in that case there is no relative right. A private person creates an incorporeal property right against a thing whenever he creates a real obligation, i.e., imposes an obligation upon a thing belonging to him; for, though the right thus created is relative as between the obligee and the thing upon which the obligation is imposed, yet it is also absolute, not only as to all persons other than the owner of the thing, but even as to him. In case of some duties, also, a private person may contribute to the creation of incorporeal ownership, not against himself personally, nor against things belonging to him, but against another person, though in respect of things belonging to himself, as when a testator directs his executor to pay legacies to certain persons out of his personal estate, or to sell certain land and pay the proceeds to persons named, the land not being devised to the executor, but left to descend to the testator's heir; for in each of these cases the law makes it the duty of the executor to do as the testator has directed, and this duty the beneficiaries can compel him to perform; and this right in the beneficiaries is incorporeal property.
Another important class of cases in which a private person may create incorporeal ownership, is where an owner of things grants to another person an authority to transfer the title to them, or to use and enjoy them. In the first of these cases, the authority is technically called a power, and the acts authorized to be done would, without such authority, be inoperative and void. In the second case, the authority is commonly called a license, and the acts authorized to be done would, without such authority, be tortious. The grantor of a power may limit the persons in whose favor it may be exercised (not including the grantee), or he may authorize its exercise for the grantee's own benefit. In the former case, the grantee of the power is not entitled to receive any pecuniary benefit from its exercise, while, in the latter case, the power is practically equal to ownership of the things over which it extends. In point of law, however, it is, in each case, incorporeal property, i.e., it is no less than that in the first case, and no more in the second. In the first case, the exercise of the power may be discretionary or mandatory, and, if mandatory, its exercise will be a duty.
A license is commonly granted for the benefit of the licensee, and in that case the right granted differs practically from ownership only in being less extensive. It may, indeed, differ practically from ownership only in not being exclusive; but a grant by the owner of a thing of all his rights as such owner will be a grant of the ownership itself, though in terms a license only be granted. A good illustration of a license will be found in the grant of a right to work a patent for a new invention, neither the patent itself, nor any part of it, being granted. This is an instance, moreover, of a license in which the thing to be enjoyed, as well as the right to use and enjoy it, constitutes incorporeal property. Another good illustration will be found in a grant by an owner of land of the right to dig in his land for minerals, and to appropriate to the grantee's own use all the minerals dug and carried away by him. Care must be taken, however, not to confound this case with that of a grant by an owner of land of all the minerals under the land, the latter being, as has been seen, a grant of corporeal property.
Another instance of incorporeal ownership created by private persons is where a right is created which depends upon the happening of a condition. Thus, if A incur an obligation to B to pay him $100 on the happening of some uncertain event, the obligation does not come into existence until the event happens, and yet B has a fixed right to be paid $100 by A in case the event happens. So, if A give B a legacy of $100 in the event of B's attaining the age of twenty-one years, the gift will not take effect during B's infancy, but yet he will have a fixed right to have the legacy paid to him by A's executor, in case he attains the age of twenty-one years. So, if A give land to B, but declare that, if B die without issue then living, the land shall go to C, C will have nothing in the land during B's life, but yet he will have a fixed right, by virtue of which the ownership of the land will vest in him on the happening of the event named.
There is still another kind of incorporeal property, created by private persons, which is very different from any hitherto mentioned, namely, the property which an author, musical composer, or artist has in his literary, musical, or artistic creations. This is not a right conferred upon one person by another against himself, or against things belonging to him; nor is it a right against any person or any thing, nor is it dependent upon any person or any thing; but it is property which has a more independent existence than any corporeal thing whatever, — which a person, by his own intellectual labor, creates in himself out of nothing. It consists, not in the ideas expressed (which cannot be the subject of ownership), but in the expression of them, i.e., in the case of an author or musical composer, it consists in the selection and arrangement of the words and signs by which the ideas are expressed, — in the case of an artist, it consists in what the artist embodies in his picture or statue.
It is, however, those classes of incorporeal property which are created by the State that attract the most attention. Blackstone enumerates five of these, namely, advowsons, tithes, offices, dignities, and franchises. I. An advowson is the right conferred by the State upon a person who has founded and endowed a church, and upon his heirs and assigns forever, of appointing the priest who is to officiate in that church. Though this right has no existence in this country, it is a very important right in England, as most of the parish churches in that country were originally founded and endowed by the lords of the manors in which they are respectively situated; and hence it is that the parson of a parish is there generally selected, not by the parishioners, but by the lord of the manor. 2. "Tithes" mean either the things received under that name, or the right to receive them, and that right is created by the State, and is incorporeal property. Like other property rights, it may be temporary or perpetual. Presumably all the tithes payable in any parish are payable to the parson of the parish for the time being, and they ought always to be payable to, or for the benefit of, either the parson of the parish, or other persons holding spiritual offices, and, if they had been, they would never have made an important figure as a species of incorporeal property. By an abuse, however, they were permitted to be alienated in fee simple, and vested in laymen; and hence they became subject to all the usual incidents of private property. 3. Most offices are not only created by the State, but the right to hold them, as well as the tenure of them, is regulated by law; and, therefore, though they are in their nature incorporeal property, yet they are without some of the most usual and important incidents of property, as they can neither be bought nor sold. They are also usually held, especially in this country, only for short periods. There is seldom, therefore, a serious controversy as to the title to an office, unless it be elective; and even then the only question which can often arise is, whether a person claiming it has been elected to it. Regarded as property, an office is peculiar in this, namely, that all the emoluments which are incident to it are conferred as a compensation for duties to be performed, and that no one can become entitled to receive the one without becoming bound to perform the other. The duties which the holder of an office is bound to perform may, of course, become the subject of controversy; and so, though less frequently, may the emoluments to which he is entitled. 4. When dignities exist in a State, and are held by a legal title, they also constitute a species of incorporeal property; but their existence in a State implies that the people of that State are, to some extent, ranked and graded by law; and, as that is not the case in this country, it follows that dignities have no legal existence here. 5. A franchise is defined by Blackstone to be a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject, i.e., by virtue of the king's grant, or by virtue of an enjoyment so long continued as to be in law equivalent to a grant. It is only in exceptional cases that the king's prerogative can thus be vested in a private person, and the fact that it can be done in those cases calls for some explanation. The explanation seems to be that certain prerogatives are vested in the king merely for the benefit of the general public. For example, the convenience of the public requires that certain services should be performed for the benefit of all persons who require their performance, and who are able and willing to pay for it; and the problem is to secure the efficient performance of such services for a fixed and reasonable compensation. One way of doing this is for the government itself to assume the performance of the service; while another way is for the government to delegate the performance of the service to private persons or corporations, making it the duty of the latter to perform the service efficiently in consideration of receiving a compensation, either fixed and agreed upon, or to be allowed by the government for the time being. Of course, it is assumed that the principle of competition is inapplicable to the case; for if it were applicable, there would be no problem to be solved, nor anything for the government to do. Moreover, it is further assumed that the very opposite principle is applicable, namely, that of monopoly; for the State must either not interfere at all, or it must assert absolute control, i.e., it must either leave the needs of the public to be provided for by free and unlimited competition, or it must make it unlawful for any one to supply such needs except with the permission and under the authority of the State. Accordingly, when the State itself undertakes the performance of a service for the general public, it always maintains a monopoly of such service, — for example, that of carrying the mails. When, therefore, the State delegates the performance of a public service to a private person or corporation, it ought to secure to the latter a monopoly commensurate, as nearly as possible, with the duty imposed.
It is upon these principles that most franchises exist in England at the present day. First, a monopoly of a certain public service is vested in the Crown. Then the Crown by its grant delegates the performance of such service to private persons or corporations. Grants of a right to keep a fair, a market, or a ferry, are the most conspicuous instances; and every such grant carries with it by implication the exclusive right of keeping a fair, market, or ferry (as the case may be), within the district which such fair, market, or ferry is supposed to serve.
Whatever belongs to the Crown in England of course belongs to the State in this country; and when the State delegates its power, it commonly does it, not by a grant, but by law, i.e., by a statute; and yet such delegations of the power of the State are commonly called franchises.
Even in England, a grant from the Crown has, in modern times, been found inadequate in many cases in which the power of the State is delegated. Thus, when an ancient ferry is superseded by a bridge, and it is yet thought desirable that the bridge should be built and maintained with private capital, and that the capital thus expended should be returned in tolls, a statute is found necessary. So, when the policy was successively adopted of inviting the expenditure of private capital in building and maintaining highways, canals, and railways, a statute was always indispensable, as all such enterprises involved the compulsory taking of the land of many persons. Lastly, the needs of large cities have, within recent times, introduced several species of public service which involve an interference with public streets, and hence the right to perform such services can properly be delegated only by statute.
In this country a strong disposition has been shown to delegate the power of the State, not to particular persons or corporations selected by the legislature, but to any persons who shall voluntarily organize themselves into corporations, and comply with certain prescribed conditions. This is, of course, upon the principle of granting equal rights to all; but unfortunately the recognition of that principle has been accompanied by an abandonment of all attempt to protect from unjust and ruinous competition those who have invested their money irrevocably in providing means and facilities for serving the public. For example, when one set of men have built a railway from A to B, the State does nothing to prevent another set of men from building another railway between the same points, and as near to the former as they please.
When the State has vested in a corporation a right, for example, to take tolls in consideration of duties to be performed, as such corporation cannot transfer to any one else the burden of the duties which it has assumed, so it cannot transfer to any one else the right which was designed to furnish the means for discharging those duties efficiently. In other words, such a right is inalienable; and, therefore, it is established in England that a railway company can transfer by way of mortgage only its surplus income, i.e., what remains for its creditors and shareholders after payment of all its necessary expenses. Unfortunately, however, our State legislatures have lost sight of these principles, and have accordingly passed statutes authorizing railway companies to mortgage all their property and "franchises"; and hence receiverships and re-organizations of railway companies, which are entirely unknown in England, have become disastrously familiar in this country.
It has been seen that the ancient franchises of fairs, markets, and ferries, as well as many modern "statutory franchises," — for example, toll-bridges, turnpike roads, canals, and railways, — have in them an element of monopoly. There are other delegations of sovereignty, however, which are monopolies pure and simple, i. e, delegations of an exclusive right to do what before was free and open to all. There are in modern times two classes of these rights, namely, patent rights and copyrights. They are peculiar, not only in the particular just stated, but also in being conferred, not in consideration of duties to be performed to the public, but in consideration of services already rendered, as well as in being conferred only for limited periods of time. A patent right is conferred by grant (in England from the Crown, in this country from the United States), though under statutory authority. A copyright is conferred directly by statute. A copyright must be sharply distinguished from the common-law right of an author, musical composer, or artist, heretofore mentioned. The latter exists only before publication, the former only after publication.
Although a copyright is in strictness of law a pure monopoly, yet it ought to be regarded, not as a favor conferred, but as a partial atonement for the wrong done by the State in putting an end, upon publication, to the common-law right of an author, musical composer, or artist, in his own creation.
Having now said all that it is thought necessary to say of incorporeal things, it is next in order to inquire what rights are affirmative in their nature, and what are negative. If, however, we can ascertain what rights are negative, and why, the inquiry will be fully answered. What is a negative right? Clearly, it is a right against some person or persons, i.e., a right not to have something done by him or them. By whom can such a right be given? Clearly, only by the person against whom it is given, or by some one in whose power such person is, i.e., by the State. How can one person give another a negative right against himself? Only by incurring a negative personal obligation to that other. How can the State give a negative right to one person against another? It is neither easy nor necessary to specify all the possible ways in which this can be done. How does the State in fact give a negative right to one person against another? Only by giving it against all persons within the limits of its territory, or some portion of that territory, i.e., by giving a monopoly or exclusive right, as already explained.
It follows, therefore, that all personal rights, all property rights, except those incorporeal rights by which the State confers a monopoly, and all relative rights, except negative personal obligations, are affirmative. If it be asked why a real obligation cannot confer a negative right against the thing bound by it, the answer is plain: as an inanimate thing is in the nature of things incapable of acting, it is impossible that a real obligation should ever consist in doing {faciendo); and, though it is possible that such an obligation should consist in not doing (non faciendo), yet an obligation not to do what the obligor by no possibility can do, is absurd and unmeaning, and therefore, in legal contemplation, cannot exist. In what, then, does a real obligation consist? Here again the answer is plain: it consists in permitting or suffering something to be done {patiendo).
But, though it seems so clear upon principle that there is no such thing as a negative real obligation, yet it is far less clear upon authority; for the Civilians all say there is such a thing, and, in so saying, they are supported, to some extent, by texts of the Roman law. Thus, in Justinian's Institutes, it is said there is a servitude, that one shall not build his house higher, lest he obstruct his neighbor's lights (ut ne altius tollat quis cedes sitas, ne luminibus vicini officiatur). Upon this passage, however, it may be remarked, first, that what it actually expresses is a personal obligation binding the owner of the house, — not a real obligation binding the house itself; secondly, that one is tempted to say that the passage is only an inaccurate mode of stating an affirmative servitude, namely, that the servient tenement is bound to permit the light to pass over it without obstruction to the windows of the dominant tenement.
If it be asked why a duty may not be negative, as well as a personal obligation, the answer is that a person can deprive himself of the right to do a thing only by conferring upon some one else the right not to have it done, — which he can do only by incurring a negative personal obligation in favor of the latter; but when the State wishes to deprive a person of the right to do a thing, it has a much more direct and simple (and therefore a better) way of accomplishing its object than by imposing upon him a duty not to do it, — namely, by commanding him not to do it, and so making the doing of it an affirmative tort; and, as the State is never supposed to do a vain and nugatory act, nor to do circuitously what it can do directly, it follows that the State can never be supposed to impose a negative duty.
ARTICLE X.
CLASSIFICATION OF RIGHTS AND WRONGS (continued).
SOMETHING still remains to be said upon the subject of rights, but it will be convenient first to consider the wrongs by which rights may be infringed. Such wrongs are divisible into two classes, namely, torts and breaches of obligation. A tort is disobedience to a command of the State, and is affirmative or negative, according as the command is negative or affirmative, the tort being in that respect the converse of the command. The State commands every person within its limits to do no act which will infringe an absolute right of any other person, i.e., it prohibits all such acts. Moreover, such acts are the only ones which the State prohibits in the interest of private rights. It follows, therefore, that every infringement of an absolute right is an affirmative tort, and that every affirmative tort is an infringement of an absolute right.
It will be seen, therefore, that an infringement of an absolute right is equally an affirmative tort, whether the right itself be affirmative or negative; and the reason is that the infringement constitutes equally, in either case, an act of disobedience to a prohibitory command of the State. The only important difference between the two cases is that, in the case of an affirmative right, the right exists independently of the command, and the command is issued merely to protect the right, while, in the case of a negative right, the right has no existence until the command is issued, and it is the prohibitory command alone that both creates the right and makes the act of infringement tortious. This difference between an affirmative and a negative right is attended with some important consequences, but they do not relate to the nature of the act which will constitute an infringement of the right.
The State also commands every person within its limits to do every act which the State makes it his duty to do. Indeed, to command one to do a thing, and to make it his duty to do it, are one and the same thing, each necessarily implying the other. Moreover, as all duties are affirmative, all commands to do one's duty are also affirmative, and these are the only affirmative commands which the State issues. It follows, therefore, that, as every breach of duty is a negative tort, so every negative tort is a breach of duty.
An impression seems always to have prevailed that a tort must necessarily be an affirmative act; and the explanation of this seems to lie in the fact that duties and their true nature have received so little attention. Certainly, the impression appears to rest upon no more solid foundation, for no reason can be given for regarding disobedience to an affirmative command as any less tortious than disobedience to a negative command. At all events, there is no doubt whatever that every breach of duty is a tort. This is conclusively proved by the fact that the only action that will lie for a breach of duty is the Action on the Case; and this again is not the least convincing proof of the correctness of the view heretofore stated as to the legal nature of a duty, and as to the radical difference between a duty and an obligation. It also explains a phenomenon which has caused much difficulty to courts and lawyers, namely, that, in certain classes of actions, in which the defendant has committed no affirmative wrong, — for example, actions against common carriers, innkeepers, or professional persons, — the plaintiff often has an option between framing his action in contract and in tort. It also explains the fact that certain classes of torts may be affirmative or negative, according as they consist of affirmative acts or of mere breaches of duty; for example, any tort committed by a tenant for life or for years as such, against the owner of the reversion, is termed waste; and this may consist either of affirmative acts which injure the reversion (i.e., wilful or voluntary waste), or in a failure to perform the duty of keeping the property in as good a condition as it was in when it first came into the tenant's possession (i.e., involuntary or permissive waste).
The infringement by an obligor of the right created by a personal obligation incurred by him is the only infringement of a right which does not constitute a tort, and hence it is distinguished from all others by being termed simply a breach of obligation. Hence also the remedy, for it is not (as for the infringement of all other rights) an action ex delicto, but an action ex contractu. This seems to prove conclusively that the State is not supposed to command the performance of obligations. It also proves the existence of the wide difference between obligations and duties which has been herein contended for.
As torts are affirmative or negative, according as the commands which they infringe are negative or affirmative, the one being the converse of the other, so breaches of obligation are negative or affirmative, according as the obligation is affirmative or negative, the one being the converse of the other.
It remains to speak of the infringement of relative rights regarded as absolute rights. Such infringements always constitute affirmative torts; but they chiefly occur in connection with real obligations. Indeed, as real obligations consist merely in authorizing something to be done, the doing of which the obligor (being an inanimate thing) has no power to prevent or even obstruct, it may be correctly said that a real obligation is incapable of being broken; and, therefore, every infringement of the right created by a real obligation, whether it be by the owner of the res, which is subject to the obligation, or by a stranger to the obligation, is necessarily an affirmative tort.
It has been seen that, in the case of personal obligations and duties, the infringement of the right is precisely the converse of the right itself, and, therefore, if one knows what the right is, he will necessarily know what will be an infringement of it; and, if one knows what will be an infringement of the right, he will also know what the right itself is. An infringement is not necessarily, indeed, coextensive with the right, but, so far as the infringement goes, the correspondence between it and the right is perfect. In the case of absolute rights, however, i.e., in all cases in which the infringement of the right is an affirmative tort, the correspondence is not between the right and its infringement, but between the latter and a prohibitory command issued by the State for the protection of the right. While, therefore, the fact that an affirmative tort has been committed is sure proof that the act which constituted it had been prohibited, and also that the right which it infringed was neither an obligation of the person committing the act, nor a duty imposed upon him, it does not necessarily furnish any further proof as to the nature or extent of the right infringed. Nor will the most perfect knowledge of the nature and extent of a right, any infringement of which will be an affirmative tort, necessarily enable one to say what acts will, and what will not, constitute an infringement of the right. It follows, therefore, that, in order to determine, in a given case, whether an affirmative tort has or has not been committed, it may be necessary, first, to identify the right which has been infringed (if there have been an infringement), and to ascertain its legal nature and extent, and, secondly, to ascertain whether the act which has been committed is an infringement of that right; and the accomplishment of the first of these objects may afford no material aid in accomplishing the second.
There is also another reason why an affirmative tort is apt to involve greater legal difficulty than a negative tort or a breach of obligation, namely, that it is more difficult to identify the right infringed, and ascertain its legal nature and extent. Obligations and duties are all of human creation, and it is the business of those who create them to mark out their extent; and, if they neglect to do so, they are liable to be visited with the consequences of their negligence. Hence it seldom happens, when an obligation or duty is admitted to exist, that any question arises as to its extent; and it is scarcely possible in the nature of things that any question should arise as to its identity. Persons and other corporeal things, on the other hand, exist in nature, and the rights to which they give rise have always and everywhere existed, and the State has seldom done more than passively recognize their existence. As to personal rights, the State does not, as has been seen, attempt to enumerate, define, or limit them, nor even to ascertain their existence further than is from time to time found necessary for the purpose of protecting them. As to corporeal things, other than human beings, the State recognizes individual ownership of them, and, as to movable things, this seems to be all that is necessary; but individual ownership of land implies a division of it among its different owners, and accordingly the State recognizes any division which the owners may make, and, if they cannot agree upon a division, the State itself makes the division; and thus the lateral extent of each person's ownership may be definitely ascertained. But it is also necessary to ascertain how far the individual ownership of land extends vertically, and, as to that, the State has established the rule that it extends downwards to the centre of the earth, and upwards to the heavens (usque ad cœlum), and also that this is presumptively the vertical extent of the ownership of every person who owns the surface of a given piece of land, though the contrary may be proved. The State also permits an owner of land, as such, as we have seen, to acquire rights in the land of his neighbor, — which rights the State declares to be accessory, appendant, or appurtenant to his ownership of his own land, and which are known in our law as easements and profits.
Perhaps the reader will think there is nothing in the foregoing to cause any uncertainty or confusion in regard to rights of property in land, and perhaps also he will be right in so thinking. Unfortunately, however, uncertainty and confusion do exist upon this subject, whatever may be their cause, and it is hoped that the following observations will have a tendency to lessen them.
First. Ownership of Blackacre (for example) constitutes only a single legal right. It may be said, indeed, that such ownership gives to the person in whom it is vested a right to do a great variety of things, but that only means that it enables him to do them without committing a tort, and that it renders tortious any act which prevents his doing them, or obstructs him in doing them; and it is by virtue of the one right of ownership that any act done by the owner of Blackacre is rightful, which without such ownership would be tortious; and it is the same one right that is infringed by any act which is a tort to the owner of Blackacre as such, and which, in the absence of such ownership, would be rightful as against him.
Secondly. If, therefore, the owner of Blackacre has two or more rights, which are liable to affect the legal relations between him as the owner of Blackacre and the owner of Whiteacre, which adjoins Blackacre, it is because he has one or more rights in Whiteacre, — which rights are appendant or appurtenant to such ownership. Moreover, such rights must have been acquired either by the present owner of Blackacre, or by some preceding owner, and they can have been acquired only in two ways, namely, either by grant from a person who had the power to create the right, i.e., from the owner of Whiteacre, or by prescription, i.e., by enjoyment so long continued as to be in law equivalent to a grant.
It follows, therefore, that the so-called right of support from adjoining land, whether for land or for buildings, has no existence as a right separate and distinct from the ownership of the land or buildings to be supported, unless it be a right in the land which is to give the support, and that such a right can exist only by a grant from the owner of such land or by prescription. It also follows that the so-called right of support for land from adjoining land, whether the support be lateral or vertical, has no existence as a right in the land which is to give the support, as it is admitted that such right, if it exists at all, exists independently of either grant from the owner of such land or of prescription. It also seems to follow that the so-called right to support from adjoining land for buildings, whether the support be lateral or vertical, cannot exist, except as a right in the land which is to give the support, and that, as such a right, it cannot exist by prescription, unless the support enjoyed be such as would have enabled the owner of the land giving the support, prior to the acquisition of the right, to maintain an action for an affirmative tort, and that is something which practically never happens.
It also follows that there is no such thing as the ownership of a stream of water which flows over one's land, or of that part of it which flows over one's land, separate from the ownership of the land of which it forms a part, though there may be a right in the land of one's neighbor, in respect of such stream, and such right may consist (for example) either in a right to prevent the natural flow of the stream from the land above to one's own land, or in a right to prevent its regular and natural flow from one's own land to the land below.
While, however, the ownership of Blackacre constitutes only one legal right, yet that right may be infringed in many ways. It has just been seen, for example, that such ownership enables the person in whom it is vested to do a variety of acts, and it may now be added that the State forbids any other person either to do any of those acts, or to obstruct the owner in doing any of them, and any disobedience of this command will, of course, be an affirmative tort committed against the owner of Blackacre as such. Suppose, then, A and B are adjoining owners of land, and A makes an excavation in his land, and thereby causes the soil of B to fall into the excavation. Does A thereby infringe B's right of ownership? It is clear, both upon principle and authority, that he does. What is the nature of the tort which he commits? Clearly, it is trespass quare clausum fregit; for, though he does not personally enter B's close, yet the physical effect of his act extends into it, and thus produces important consequences. Suppose A, by means of artificial support, prevents B's soil from falling into the excavation? Then A commits no tort; and this proves, if proof be needed, that B has no right in A's land. Suppose the excavation produces no effect upon B's land for two years, but at the end of two years B's soil falls into the excavation? It is settled by the highest authority that the whole tort is committed at the latter date, and consequently that the Statute of Limitations then first begins to run in favor of A; and this proves that the tort consists, not in making the excavation, but in causing B's soil to fall into it, and consequently that the right infringed is B's ownership of his own land, and not any right of his in A's land.
Suppose the surface of certain land belongs to A, while all the minerals under the surface belong to B, or that the upper part of a house belongs to A, while the lower part belongs to B, and B so conducts his mining as to cause A's soil to sink, or so conducts the repairs of his part of the house as to cause A's part to fall? It must be regarded as settled by authority that B will be liable to A in either case; and yet it is assumed that A has acquired no right in B's part of the land, nor in his part of the house, whether by reservation, grant, or prescription; and, therefore, it must follow that the causing of the surface of the land to sink, or of the upper part of the house to fall, is a tort to A's right of ownership. It seems also to be so upon principle; for, if the State is to permit so artificial and inconvenient a division of land or houses to be made between different owners, it must, in all reason, afford some protection to one who owns the surface only of land, or the upper part only of a house; and, therefore, the State is supposed to forbid the owner of the minerals, in the first case, to do anything which shall cause the surface of the land to sink, and to forbid the owner of the lower part of the house, in the second case, to do anything which shall cause the upper part to fall. It seems also that the State is supposed to impose upon the owner of the lower part of the house the duty of keeping it in such a state of repair that it will afford a sufficient support for the upper part.
Suppose A and B are adjoining owners of land, and B builds a house on his land extending to the boundary line between B and A, and then A makes an excavation in his land, but leaves a space between the excavation and the boundary line which would have been sufficient to prevent B's soil in its natural state from falling, but which proves insufficient to support the land with the house on it, and consequently the house falls? It is generally admitted that A is not to be regarded as having caused B's house to fall, and so has not infringed B's right of ownership, and, therefore, that he is not liable to B, unless the latter has acquired by prescription or grant a right in the land of A to have his house supported by it; and it seems to be clear upon principle that no such right can be acquired by prescription, unless it can be shown that the pressure of the house, prior to the acquisition of the right, caused such a disturbance of A's soil as to render B liable in trespass; but this cannot be asserted upon authority.
If the owner of Blackacre have rights in Whiteacre, which adjoins Blackacre, and the owner of Whiteacre commit an affirmative tort against the owner of Blackacre, how shall it be ascertained whether the right infringed is the ownership of Blackacre, or some right which such owner has in Whiteacre? By ascertaining whether the tort was committed on Blackacre or on Whiteacre; and this depends, not upon where the act which constitutes the tort was done, but where it produced its tortious effect. Thus, if the tort consist in making soap on Whiteacre, or in manufacturing thereon bones into a fertilizer, or in burning bricks thereon, or in fouling the water of a stream which flows through Whiteacre, and thence into Blackacre, and sending it into Blackacre in its foul condition, or in making a dam in a stream which flows from Blackacre into Whiteacre, and thereby flooding Blackacre, — in each of these cases, it is plain that, while the tortious act is committed on Whiteacre, yet its tortious effect is produced wholly on Blackacre, and hence the right infringed is the ownership of Blackacre. On the other hand, if the tort consist in erecting a house on Whiteacre by which the access of light and air to ancient windows on Blackacre is obstructed, or in obstructing a way which the owner of Blackacre has over Whiteacre, it is plain that the tortious effect of the wrongful act is produced on Whiteacre; and, therefore, the right infringed is the easement of light and air in the first case, and the right of way in the second case. In the second case, also, the owner of Whiteacre, if he wishes to contest the right claimed by the owner of Blackacre, may, instead of obstructing the way, sue the owner of Blackacre for trespass quare clausum fregit; and then the owner of Blackacre will have to set up as a defence the right of way which he claims. In case of some easements, moreover, this is the only course open to the owner of Blackacre. Thus, in the case just put of fouling the water of a stream, as well as in that of erecting a dam across a stream in Whiteacre, and thereby flooding Blackacre, the owner of Blackacre has no means of preventing the act which he claims to be wrongful, and, therefore, if he wishes to contest the right of the owner of Whiteacre to do as he has done, the only course open to him is to sue the latter, and thus compel him to set up as a defence the right which he claims.
The ownership of incorporeal things differs, in respect to its infringement, from that of corporeal things, for the former can be infringed only by interfering with the owner's enjoyment of the thing owned; and, therefore, in order to ascertain in how many and what ways such a right can be infringed, one must ascertain in how many and what ways it can be enjoyed. The common law right of an author in his literary creations furnishes a good illustration of this. An ordinary literary composition can be enjoyed by its author to his profit in only one way, namely, by printing and selling copies of it; and, therefore, it is only by multiplying copies of it without the author's leave that his right can be infringed. The author of a dramatic composition may, however, enjoy it to his profit in another way, namely, by producing it on the stage, and, therefore, his right may be infringed either by multiplying copies of his composition, or by producing it on the stage, without his leave.
There is, moreover, one species of incorporeal ownership which is like a relative right in this respect, that it can be infringed in one way only, and that its infringement is precisely the converse of the right itself, namely, a monopoly or exclusive right granted by the State, i.e., a negative absolute right; for, as such a right consists merely in the power to prevent any one else from doing what the grantee of the monopoly has the exclusive right to do, it is only by doing something to which the monopoly extends that the right of such grantee can be infringed. In this respect, therefore, a monopoly is strictly analogous to a negative personal obligation. By incurring a negative obligation, the obligor deprives himself of the right to do something as between himself and the obligee; by granting a monopoly the State deprives all persons within its limits, except the grantee of the monopoly, of the right to do something as between them and such grantee. For example, a copyright is simply a monopoly of the right of multiplying copies of a printed book; and, therefore, it is no infringement of an author's copyright in a published drama to produce such drama on the stage. It follows, therefore, that a copyright in a published drama is by no means equal, even while it lasts, to an author's common law right in an unpublished drama. Of course, the State might have revested in the authors of published books, for a limited period, the right which it declared them to have lost by publication, and the title of the original copyright act indicates that the legislature which passed it supposed that that was what it was doing; but all that the act really did was to vest in authors of published books the exclusive right of multiplying copies of them; and a consequence was that, for more than a century, the publication of a drama deprived its author of all exclusive right of producing it on the stage. Another consequence was, that it required two statutes, and the creation of two rights, to replace, for a limited period, the one common law right which the author of a drama was held to have lost by publishing the drama. It may be further remarked that the two statutory rights are inferior to the one common law right, not only because of their limited duration, but also because they do not extend beyond the limits of the State which creates them, while the common law right is good everywhere.
There are some affirmative torts which are clearly infringements of rights of property, but which consist, not in injuring anything which belongs to another, but in wrongfully depriving another of something which belongs to him, or in wrongfully intercepting something which would otherwise come to another, and yet under such circumstances that the person injured cannot be restored to what he has thus been wrongfully deprived of, and, therefore, he must content himself with a compensation in money, i.e., damages. In such cases, therefore, while the tort is clearly to property, yet it is not a tort to any particular thing, nor has it properly any relation to any particular thing. It is, therefore, a tort to the estate of the person injured in the aggregate, — to the universitas of his estate (as the Romans called it), consisting, as it does, in making him so much poorer. Of this description are many species of fraud, for example, the so-called infringement of a trade-mark, or of good-will, — which consists in wrongfully and fraudulently depriving another person of customers whose patronage he would otherwise have received.
In all such cases, it is very important that it be clearly understood that the tort is not to any specific thing; for, otherwise, one will be in danger of deceiving himself as to the nature of the right injured, — of persuading himself, indeed, that the injury is to a right which in truth has no existence. Thus, in cases of infringement of trade-mark or good-will, it has often happened that, as it was assumed that some specific thing must be injured, so it was concluded that a trade-mark or good-will is a species of incorporeal property, — a notion which clearly has no solid foundation. There may, indeed, be other reasons for the notion than the one just stated. For example, it has been found convenient to apply to trade-marks the nomenclature which had become familiar in connection with patent rights and copyrights, and the practice of doing so has suggested and made plausible the idea that the former were analogous to the two latter. So, also, trade-marks and good-will have often been spoken of and treated as proper subjects of purchase and sale. It is, however, only by a figure of speech that either of these can be said to be purchased or sold, and what is called a purchase and sale of a trade-mark or good-will is in truth only a contract, by which (for example) the so-called seller agrees to retire from business, and to introduce the so-called purchaser to his former customers and to the public as his successor.
What has thus far been said of rights and their infringement has in it no element of equity. The rights which have been described may be defined as original and independent rights, and equity has no voice either in the creation of such rights or in deciding in whom they are vested. Equity cannot, therefore, create personal rights which are unknown to the law; nor can it say that a thing, which by law has no owner, is a subject of ownership, nor that a thing belongs to A which by law belongs to B; nor can it create an obligation or impose a duty which by law does not exist; nor can it declare that a right arising from an obligation is assignable, if by law it is not assignable. To say that equity can do any of these things would be to say that equity is a separate and independent system of law, or that it is superior to law.
If there is no element of equity in a given right, neither is there any in the infringement of that right; for what is an infringement of a right depends entirely upon the extent of the right. If, therefore, equity could declare that a right has been infringed when by law it has not, it would thus enlarge the right of one man, and curtail that of another.
When, however, it is said that equity has no voice in a given question, it must not be inferred that a judge sitting in equity has no such voice. An equity judge administers the same system of law that a common law judge does; and he is therefore constantly called upon to decide legal questions. It, accordingly, sometimes happens that courts of equity and courts of common law declare the law differently; and a consequence of this may be that courts of equity will recognize a certain right which courts of common law refuse to recognize; but it does not follow that the right thus recognized is properly an equitable right. So courts of equity may treat an act as an infringement of a legal right, which courts of common law treat as rightful; but it does not follow that such an act is properly an equitable tort. A well-known instance of such an act is found in what is commonly called equitable waste. For example, if a tenant for life, without impeachment of waste, cut down ornamental trees, or pull down houses, a court of equity says he has committed waste, while a court of common law says he has not. Either court may be wrong, and one of them must be; for the question depends entirely upon the legal effect to be given to the words, "without impeachment of waste," and that cannot depend upon the kind of court in which the question happens to arise. Yet the practical consequence of this diversity of views is,
that there is a remedy in equity against the tenant in the case supposed, while there is none at law; and this gives to the act of the tenant the semblance of being an equitable tort. In truth, however, the act is a legal tort, if the view taken by courts of equity is correct, while it is a rightful act, if the view taken by courts of common law is correct.
As legal rights have in them no element of equity, so equitable rights have in them no element of law. In short, legal rights and equitable rights are entirely separate and distinct from each other, each having a source and origin of its own, — legal rights being the creatures of the law, i.e., of the State, and equitable rights being the creatures of equity. What then is the nature of equitable rights, and how can equitable rights and legal rights coexist in the same State? This question suggests another, namely, what is the nature of equity, and how can law and equity coexist in the same State? As law is the creature of the State, so equity was originally the creature of the supreme executive of the State, i.e., of the king. What then was the power of the king which enabled him to create equity? It may be answered that he had in him the sole judicial authority, as well as the sole executive power, but none of the legislative power (i.e., he could not alone exercise any portion of the latter). By virtue of his judicial power, he had entire control over procedure, so long as the legislature did not interfere; and this it was that enabled him to create equity. As he had no legislative power, he could not impart to his decisions in equity any legal effect or operation, but when he had, by the exercise of his judicial authority, rendered a decision in equity in favor of a plaintiff, he could enforce it by exerting his executive power against the person of the defendant, i.e., he could compel the defendant to do, or to refrain from doing, whatever he had by his decision directed him to do or to refrain from doing.
The subject must, however, be examined a little more closely. The cases in which equity assumes jurisdiction over controversies between litigants may be divided into two great classes, namely, those in which a plaintiff seeks relief in equity respecting some legal claim which he makes against the defendant, and those in which he makes no such claim. In the first class of cases, the ground upon which equity takes jurisdiction is that the plaintiff either can obtain no relief at all at law, or none which is adequate; and, therefore, so far as regards this class of cases, equity consists
merely in a different mode of giving relief from that employed by courts of common law, i.e., in a different mode of protecting and enforcing legal rights; and, therefore, the exercise of this branch of the jurisdiction has already been sufficiently accounted for.
The other class of cases, however, is not so easily disposed of. It may be divided into those in which the plaintiff sets up no legal right whatever, and those in which the only legal right he sets up is a defence to some legal claim which the defendant makes against him. In cases belonging to the first subdivision, equity interferes upon the ground that the substantive law (and not merely the remedial law) is inadequate to the purposes of justice. In cases belonging to the second subdivision, equity interferes upon the ground that justice requires that the plaintiff should be permitted to take the initiative in the litigation, and procure a decision of the controversy in a suit brought by himself, instead of being compelled to wait the pleasure of the defendant in suing him at law, and then to set up his defence. In one important particular, however, cases belonging to these two subdivisions are alike, namely, in the necessity which they impose upon equity of creating a new right in the plaintiff's favor; for no action or suit can be maintained in any court without some right upon which to found it. Moreover, such right must consist of a claim to be enforced against the defendant, and not merely of the means of defeating a claim which the defendant makes against the plaintiff, i.e., of a defence.
How then is the difficulty to be met? In early times, probably, the difficulty itself was not much felt. Perhaps, indeed, it was not felt at all, it not being perceived that the king could properly issue judicial commands only in support of some right. At the present day, however, the question whether any given action or suit will lie must be answered in one of three ways, namely, first, by showing some right in the plaintiff on which the suit can rest; secondly, by saying that it will not lie; or, thirdly, by saying it is an anomaly; and the cases in which the plaintiff asserts no legal claim against the defendant are too numerous to be disposed of in that way.
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,;'. e. , that they are a fiction invented by equity for the promotion of justice. Still, as in contemplation of equity such rights do exist, equity must reason upon them and deal with them as if they had an actual existence.
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? 1. They must not violate the law. 2. They must follow the analogy of one or more classes of legal rights. 3. There is no exclusive field for them to occupy; for the entire field is occupied by legal rights. Legal and equitable rights must, therefore, exist side by side, and the latter cannot interfere with, or in any manner affect, the former. 4. They must be such as can be enforced by the exercise of physical power in personam; for, as equity has no other means of enforcing rights, it would be in vain for it to create rights which could not be so enforced. 5. Propositions one and four prove that no equitable rights can be created, even by way of fiction, in analogy to either class of absolute rights, nor in analogy to real obligations; and, though expressions are often met with which seem to indicate the contrary, yet they must be regarded as mere figures of speech. 6. All equitable rights must, therefore, be in the nature either of personal obligations or of duties. 7. Equitable rights clearly constitute but one class, and, therefore, they must all be classed either as personal obligations or as duties. 8. They bear some analogy to duties but more to personal obligations; and, therefore, they must be classed as equitable personal obligations. They are analogous to duties in this respect, namely, that, as duties will be imposed whenever the State sees fit to impose them, so equitable rights will be created, subject to the limitations herein-before and herein-after stated, whenever equity finds it necessary to create them. In all other respects, however, they are analogous to personal obligations. 9. There is no division of equitable obligations answering to the division of legal obligations into those which are ex contractu and those which are ex lege; for a contract always produces a legal obligation. Therefore, all equitable obligations may be said to be ex æquitate. 10. An equitable obligation cannot impose a general personal liability upon the obligor, as that would be in violation of law. Therefore, while a covenant by a purchaser of land with his vendor, that no building shall ever be erected on the land other than a dwelling-house, will bind in equity all subsequent owners of the land until it comes into the hands of a purchaser for value and without notice of the covenant, yet a covenant by such purchaser with his vendor, that a dwelling-house shall be erected on the land, within a specified time, at a cost of $10,000, will bind no one in equity whom it will not bind at law. 11. An equitable obligation, therefore, can bind the obligor only in respect of some right vested in him; and, therefore, every right created by an equitable obligation is derived from, and dependent upon, some other right vested in the obligor. Moreover, every original equitable right is derived from, and dependent upon, a legal right vested in the obligor. In short, every equitable right is derived, either mediately or immediately, from a legal right; and, while an indefinite number of equitable rights may be derived from one legal right, yet they will all be dependent upon that one legal right.
It is not, however, all legal rights that can be the subjects of equitable obligations. Only those can be so which are alienable in their nature. Of absolute rights, therefore, none of those which are personal can ever be the subjects of equitable obligations, while nearly all rights which consist in ownership can be the subjects of such obligations. Relative rights can generally be the subjects of equitable obligations, but not always. For example, some rights arising from real obligations are inseparably annexed to the ownership of certain land, and, therefore, are not alienable by themselves. So, also, some rights arising from personal obligations are so purely personal to the obligee as to be obviously inalienable. It is only necessary to mention, as an extreme case, the right arising from a promise to marry.
If a legal right is capable of being the subject of an equitable obligation, the power of equity to impose an obligation upon the owner of it as such is subject to one limitation only, namely, that which is imposed by law. Under what circumstances, then, can an equitable obligation be imposed upon the owner of a legal right as such without violating the law? Whenever the owner of the right has received it by way of gift, but not for his own benefit, or has obtained it by fraud or other wrong, or has received it by way of gift, or without payment of value, from one who was himself bound by an equitable obligation respecting it, or has received it for value from a person so bound, but with notice that the latter was so bound. So, also, if the owner of a legal right incur a legal obligation respecting it, equity can, subject to the qualification stated in proposition ten, enforce that obligation against all subsequent owners of the right, until the latter reaches the hands of a purchaser for value and without notice. So, also, if the owner of a right has incurred a legal obligation to transfer it to another, and everything has been done, and all things have happened, necessary to transfer the right, if it were equitable, equity will treat the right as having passed in equity, though not at law, and, therefore, will impose upon its owner an obligation to hold it for the benefit of the legal obligee.
By an unfortunate anomaly it is also now held that the owner of a legal right may, by a mere declaration in writing to that effect, incur an equitable obligation respecting that right in favor of a person between whom and himself there has been no previous relation, and from whom he receives no consideration. This is as much in violation of law as the case mentioned in proposition ten. Moreover, it is in effect enforcing an agreement which has no consideration to support it.
If A convey land to B, and the conveyance be expressed to be in consideration of money paid by B to A, but in fact the money was paid as a loan, and not as the price of the land, the inference will be irresistible that the conveyance was made merely to secure the repayment of the money lent; and, therefore, the moment the conveyance is made, B will incur an equitable obligation to hold the land for A's benefit, subject to his own rights as A's creditor, i.e., there will be a resulting trust in favor of the debtor.
If land be conveyed by a debtor to his creditor upon a condition subsequent, namely, that the title conveyed shall revest in the debtor on his paying the debt on a day named, or upon an agreement by the debtor to reconvey the land on payment of the debt on a day named, and the day be permitted to pass without payment, equity will, the moment that the debtor's legal right is thus lost, impose an obligation upon the creditor to reconvey the land upon being paid "principal, interest, and costs"; and this obligation will continue in force till equity itself puts an end to it. The principle upon which equity does this is that the debtor has lost his legal right as a penalty for not paying the debt on the day named, that the debt still remains unpaid, and, therefore, if equity does not interfere, the debtor, having lost his land, will also be compelled to pay the debt, if he have the means of doing so, — in which event he will receive nothing for his land. It may be objected that equity here violates the legal rights of the creditor by converting a penalty, agreed upon between the parties, into a mere security for the payment of a debt; but the answer is that the objection comes too late, for equity has in this manner relieved against all penalties from the earliest times, and its action in that respect has been acquiesced in by the legislature. For example, by the common law the obligor in a bond, who failed to pay on the day named in the bond, became in consequence liable to pay twice the amount of the original debt, but equity would always restrain an action to recover the penalty on payment of "principal, interest, and costs"; and the interference of equity in this way was not only acquiesced in, but its view was adopted by the legislature, and became statute law, more than two hundred years ago.
If payment of a debt be secured by a pledge of the debtor's property, and also by the obligation of a personal surety, and the surety pay the debt, equity will compel the creditor to deliver the pledge to him, and not to the debtor, though the latter has a clear legal right to receive it, the debt being paid and extinguished; i.e., equity destroys the legal right of the debtor, and converts the creditor into a trustee for the surety. This is done upon the theory that the debt is not paid by the surety, but is purchased by him, and that he is, therefore, entitled to the pledge as an incident of the debt. This, however, is only a fiction, — a fiction, moreover, which is contrary to law; for the payment by the surety extinguishes the debt. Equity does this under the name of subrogation, and perhaps her best justification is that she borrowed both the name and the thing from the civil law. Equity has, moreover, followed the civil law in carrying the doctrine of subrogation still further; for it permits a surety who has paid the creditor, and thus extinguished the debt, to recover a full indemnity from the debtor, and that too on the theory that the debt still remains due from the latter, and that the surety is enforcing the rights of the creditor.
In all the foregoing cases the obligation imposed by equity upon the owner of a legal right is affirmative, i.e., it is an obligation to hold the legal right for the benefit of the equitable obligee, in whole or in part. There are cases, however, in which the object of equity is not to compel the owner of a legal right to hold the same for the benefit of another, but to restrain him from exercising it for his own benefit; and, whenever that is the case, the obligation imposed will of course be negative. Thus, if a debtor fraudulently procure from his creditor a release of the debt, or procure such release for a consideration which he afterwards refuses or fails to pay or perform, equity will impose upon him an obligation not to use the release as a defence to an action or suit by the creditor to recover the debt. So equity will impose upon a defendant to an action or suit an obligation not to use a defence which will prevent a trial of the case upon its merits, or by which the course of justice will otherwise be obstructed. So, if a legal claim be of such a nature that it may be the subject of an indefinite number of actions, and if it has already been litigated sufficiently to satisfy the purposes of justice, equity will impose upon the unsuccessful party an obligation not to prosecute the claim further, or not to resist it further, as the case may be.
When an equitable right has once been created, it may in its turn become the subject of a new equitable right, i.e., its owner may incur an equitable obligation in respect to it, just as the owner of a legal right may incur an equitable obligation in respect to that; and this process may go on indefinitely, each new equitable right becoming in its turn the subject of still another equitable right, and all the equitable rights being derived from the same legal right, the first immediately, the others mediately.
If equitable rights are to be classed as obligations rather than as duties, it will follow that infringements of such rights are to be regarded as breaches of obligation. Perhaps, however, it is not very material whether they be regarded as breaches of obligation or as equitable torts; for, whether they be the one or the other, it seems that the relief which equity will give will be the same. For equity never gives damages for an infringement of an equitable right, but makes the wrong-doer a debtor to the person wronged instead, and proceeds upon the theory of compelling the former to restore to the latter what he has lost, or to place him in the situation in which he would have been if the wrong had not been committed.