 Section 15 of Jurisprudence We have seen that the law consists of the principles in accordance with which justice is administered by the state and that the administration of justice consists in the use of the physical force of the state in enforcing rights and punishing the violation of them. The conception of a right is accordingly one of fundamental significance in legal theory and the purpose of this chapter is to analyze it and to distinguish its various applications. Before attempting to define a right, however, it is necessary to define two other terms which are closely connected with it, namely wrong and duty. A wrong is simply a wrong act, an act contrary to the rule of right and justice. A synonym of it is injury in its true and primary sense of injuria, that which is contrary to use, though by a modern perversion of meaning this term has acquired the secondary sense of harm or damage, damnum, whether rightful or wrongful, and whether inflicted by human agency or not. Wrongs or injuries are divisible for our present purpose into two kinds, being either moral or legal. A moral or natural wrong is an act which is morally or naturally wrong being contrary to the rule of natural justice. A legal wrong is an act which is legally wrong being contrary to the rule of legal justice and a violation of the law. It is an act which is authoritatively determined to be wrong by a rule of law and is therefore treated as a wrong in and for the purposes of the administration of justice by the state. It may or may not be a wrong indeed and in truth, and conversely a moral wrong may or may not be a wrong in law. Natural and legal wrongs, like natural and legal justice, form intersecting circles. This discordance between law and fact being partly intentional and partly the result of imperfect historical development. In all ordinary cases, the legal recognition of an act as a wrong involves the suppression or punishment of it by the physical force of the state, this being the essential purpose for which the judicial action of the state is ordained. We shall see later, however, that such forcible constraint is not an invariable or essential incident, and that there are other possible forms of effective legal recognition. The essence of a legal wrong consists in its recognition as wrong by the law, not in the resulting suppression or punishment of it. A legal wrong is a violation of justice according to law. Section 71, Duties A duty is an obligatory act, that is to say, it is an act the opposite of which would be a wrong. Duties and wrongs are co-relatives. The commission of a wrong is the breach of a duty, and the performance of a duty is the avoidance of a wrong. A synonym of duty is obligation in its widest sense, although in a special and technical application the latter term denotes one particular kind of duty only, as we shall see later. Duties like wrongs are of two kinds, being either moral or legal. A moral or natural duty is an act the opposite of which would be a moral or natural wrong. A legal duty is an act the opposite of which would be a legal wrong. It is an act recognized as a duty by the law and treated as such in and for the purposes of the administration of justice by the state. These two classes are partly coincident and partly distinct. A duty may be moral but not legal, or legal but not moral, or both at once. When the law recognizes an act as a duty, it commonly enforces the performance of it or punishes the disregard of it. But this sanction of legal force is in exceptional cases absent. A duty is legal because it is legally recognized, not necessarily because it is legally enforced or sanctioned. There are legal duties of imperfect obligation, as they are called, which will be considered by us at a later stage of our inquiry. Section 72, writes, A right is an interest recognized and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind. That is to say, upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially affected by it. Act which has no influence upon the interests of anyone has no significance either in law or morals. Every wrong, therefore, involves some interest attacked by it, and every duty involves some interest to which it relates, and for whose protection it exists. The converse, however, is not true. Every attack upon an interest is not a wrong, either in fact or in law, nor is respect for every interest a duty, either legal or natural. Any interests exist de facto and not also de llore. They receive no recognition or protection from any rule of right. The violation of them is no wrong, and respect for them is no duty. For the interests of men conflict with each other, and it is impossible for all to receive rightful recognition. The rule of justice selects some for protection, and the others are rejected. The interests which thus receive recognition and protection from the rules of right are called rights. Every man who has a right to anything has an interest in it also, but he may have an interest without having a right. Whether his interest amounts to a right depends on whether there exists with respect to it a duty imposed upon any other person. In other words, a right is an interest the violation of which is a wrong. Every right corresponds to a rule of right from which it proceeds, and it is from this source that it derives its name. That I have a right to a thing means that it is right that I should have that thing. All right is the right of him for whose benefit it exists. Just as all wrong is the wrong of him whose interests are affected by it. In the words of Vincheid, Das Recht ist sein Recht geworden. Rights like wrongs and duties are either moral or legal. A moral or natural right is an interest recognized and protected by a rule of natural justice, an interest the violation of which would be a moral wrong and respect for which is a moral duty. A legal right, on the other hand, is an interest recognized and protected by a rule of legal justice, an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty. Rights, says Ehring, are legally protected interests. Bentham set the fashion, still followed by many, of denying that there are any such things as natural rights at all. All rights are legal rights and the creation of the law. Natural law, natural rights, he says, are two kinds of fiction or metaphors which play so great a part in books of legislation that they deserve to be examined by themselves. Rights, properly so-called, are the creatures of law, properly so-called. Real laws give rise to real rights. Natural rights are the creatures of natural law. They are a metaphor which derives its origin from another metaphor. In many of the cultivated, says Spencer, criticizing this opinion, there has been produced a confirmed and indeed contemptuous denial of rights. There are no such things, say they, except such as are conferred by law. Following Bentham, they affirm that the state is the originator of rights, and that apart from it, there are no rights. A complete examination of this opinion would lead us far into the regions of ethical rather than juridical conceptions, and would here be out of place. It is sufficient to make two observations with respect to the matter. In the first place, he who denies the existence of natural rights must be prepared at the same time to reject natural or moral duties also. Rights and duties are essentially correlative, and if a creditor has no natural right to receive his debt, the debtor is under no moral duty to pay it to him. In the second place, he who rejects natural rights must at the same time be prepared to reject natural right. He must say with the Greek skeptics that the distinction between right and wrong, justice and injustice, is unknown in the nature of things, and a matter of human institution merely. If there are no rights, save those which the state creates, it logically follows that nothing is right and nothing wrong, save that which the state establishes and declares as such. If natural justice is a truth and not a delusion, the same must be admitted of natural rights. It is to be noticed that in order that an interest should become a legal right, it must obtain not merely legal protection, but also legal recognition. The interests of beasts are to some extent protected by the law, and as much as cruelty to animals is a criminal offense. But beasts are not, for this reason, possessed of legal rights. The duty of humanity so enforced is not conceived by the law as a duty towards beasts, but merely as a duty in respect of them. There is no bond of legal obligation between mankind and them. The only interest and the only right which the law recognizes in such a case is the interest and right of society as a whole in the welfare of the animals belonging to it. He who ill treats a child violates a duty which he owes to the child, and a right which is vested in him. Though he who ill treats a dog breaks no viniculum juris between him and it, though he disregards the obligation of humane conduct which he owes to society or the state, and the correlative right which society or the state possesses. Similarly, a man's interest may obtain legal protection as against himself as when drunkenness or suicide is made a crime. But he has not, for this reason, a legal right against himself. The duty to refrain from drunkenness is not conceived by the law as a duty owing by a man to himself, but is one owing by him to the community. The only interest which receives legal recognition is that of the society in the sobriety of its members. Although a legal right is commonly accompanied by the power of instituting legal proceedings for the enforcement of it, this is not invariably the case, and does not pertain to the essence of the conception. As we shall see, there are classes of legal rights which are not enforceable by any legal process, for example, debts barred by prescription or the lapse of time. Just as there are imperfect and unenforceable legal duties, so there are imperfect and unenforceable legal rights. Rights and duties are necessarily correlative. There can be no right without a corresponding duty, or duty without a corresponding right, any more than there can be a husband without a wife or a father without a child. For every duty must be a duty towards some person or persons in whom, therefore, a correlative right is vested. And conversely, every right must be a right against some person or persons, upon whom, therefore, a correlative duty is imposed. Every right or duty involves a verniculum uris or bond of legal obligation, by which two or more persons are bound together. There can be no duty unless there is some one to whom it is due. There can be no right unless there is some one from whom it is claimed. And there can be no wrong unless there is some one who is wronged. That is to say, whose right has been violated. We must therefore reject the opinion of those writers who distinguish between relative and absolute duties, the former being those which have rights corresponding to them, and the latter being those which have none. This opinion is held by those who conceive it to be of the essence of a right, that it should be vested in some determinate person and be enforceable by some form of legal process instituted by him. On this view, duties towards the public at large or towards indeterminate portions of the public have no correlative rights, the duty, for example, to refrain from committing a public nuisance. There seems no sufficient reason, however, for defining a right in so exclusive a manner. All duties towards the public correspond to rights vested in the public, and a public wrong is necessarily the violation of a public right. All duties correspond to rights, though they do not all correspond to private rights vested in determinate individuals. In every legal right, the five following elements are involved. One, a person, in whom it is vested, and who may be distinguished as the owner of the right, the subject of it, or the person entitled. Two, a person against whom the right avails, and upon whom the correlative duty lies, he may be distinguished as the person bound, or as the subject of the duty. Three, an act or omission which is obligatory on the person bound in favor of the person entitled. This may be termed the content of the right. Four, some thing to which the act or omission relates, and which may be termed to the object or subject matter of the right. Five, a title, that is to say, certain facts or events by reason of which the right has become vested in its owner. Thus, if a buys a piece of land from b, a is the subject or owner of the right so acquired. The persons bound by the correlative duty are persons in general, for a right of this kind avails against all the world. The content of the right consists in non-interference with the purchaser's exclusive use of the land. The object or subject matter of the right is the land. And finally, the title of the right is the conveyance by which it was acquired from its former owner. Every right, therefore, involves a threefold relation in which the owner of it stands. One, it is a right against some person or persons. Two, it is a right to some act or omission of such person or persons. Three, it is a right over or to some thing to which that act or omission relates. An ownerless right is an impossibility. There cannot be a right without a subject in whom it inheres any more than there can be weight without a heavy body. For rights are merely attributes of persons and can have no independent existence. Yet, although this is so, the ownership of a right may be merely contingent or uncertain. The owner of it may be a person indeterminate. He may even be a person who is not yet born and may therefore never come into existence. Although every right has an owner, it need not have a vested and certain owner. Thus, the fee simple of land may be left by will to a person unborn at the death of the testator. To whom does it belong in the meantime? We cannot say that it belongs to no one for the reasons already indicated. We must say that it is presently owned by the unborn person, but that his ownership is contingent on his birth. Who is the owner of a debt in the interval between the death of the creditor and testate and the vesting of his estate in an administrator? Roman law in such a case personified the inheritance itself and regarded the rights contingently belonging to the heir as presently vested in the inheritance by virtue of its fictitious personality. According to English law before the Judicature Act, 1873, the personal property of an intestate in the interval between death and the grant of letters of administration was deemed to be vested in the judge of the court of probate and it may be assumed that it now vests either in the president of the probate divorce and admiralty division or in the judges of the high court collectively. But neither the Roman nor the English fiction is essential. There is no difficulty in saying that the estate of an intestate is presently owned by an inserta persona namely by him who is subsequently appointed the administrator of it. The law however abhors a temporary vacuum of vested ownership. It prefers to regard all rights as presently vested in some determinate person, subject if need be to be divested on the happening of the event on which the title of the contingent owner depends. Certain writers define the object of a right with such narrowness that they are forced to the conclusion that there are some rights which have no objects. They consider that the object of a right means some material thing to which it relates and it is certainly true that in this sense an object is not an essential element in the conception. Others admit that a person as well as a material thing may be the object of a right as in the case of a husband's right in respect of his wife or a father's in respect of his children but they go no further and consequently deny that the right of reputation for example or that of personal liberty or the right of a patentee or a copyright has any object at all. The truth seems to be however that an object is an essential element in the idea of a right. A right without an object in respect of which it exists is as impossible as a right without a subject to whom it belongs. A right is as we have said a legally protected interest and the object of the right is the thing in which the owner has this interest. It is the thing material or immaterial which he desires to keep or to obtain and which he is enabled to keep or to obtain by means of the duty which the law imposes on other persons. We may illustrate this by classifying the chief kinds of rights by reference to their objects. One, rights over material things. In respect of their number and variety and of the great mass of legal rules relating to them these are by far the most important of legal rights. Their nature is too familiar to require illustration. Two, rights in respect of one's own person. I have a right not to be killed and the object of this right is my life. I have a right not to be physically injured or assaulted and the object of this right is my bodily health and integrity. I have a right not to be imprisoned save in due course of law. The object of this right is my personal liberty that is to say my power of going where I will. I have a right not to be coerced or deceived into acting contrary to my desires or interests. The object of this right is my ability to fulfill my desires and protect and promote my interests by my own activities. Three, the right of reputation. In a man's reputation that is to say in the good opinion that other persons have of him he has an interest just as he has an interest in the money in his pockets. In each case the interest has obtained legal recognition and protection as a right and in each case the right involves an object in respect of which it exists. Four, rights in respect of domestic relations. Every man has an interest and a right in the society, affections and security of his wife and children. Any person who without just cause interferes with this interest as by the seduction of his wife or daughter or by taking away his child is guilty of a violation of his rights. The wrongdoer has deprived him of something which was his no less than if he had robbed him of his purse. Five, rights in respect of other rights. In many instances a right has another right as its subject matter. I may have a right against A that he shall transfer to me some right which is now vested in himself. If I contract with him for the sale of a piece of land to me I acquire thereby a right against him that he shall so act as to make me the owner of certain rights now belonging to himself. By the contract I acquire a right to the right of ownership and when the conveyance has been executed I acquire the right of ownership itself. Similarly, a promise of marriage vests in the woman a right to the rights of a wife but the marriage vests in her those rights themselves. It is commonly a question of importance whether the right acquired by an agreement or other transaction is merely a right to a right or is one having something else than another right as its immediate object. If I buy a ton of coal or a flock of sheep the right which I thereby acquire may be of either of these kinds according to circumstances. I may become forthwith the owner of the coal or the sheep that is to say my right may have these material things as its immediate and direct object. On the other hand, I may acquire merely a right against the seller that he by delivery or otherwise shall make me the owner of the things so purchased. In this case I acquire a right which has as its immediate and direct object nothing more than another right. Though its immediate and indirect object may be said truly enough to be the material things purchased by me. Six, rights over immaterial property. Examples of these are patent rights, copyrights, trademarks and commercial goodwill. The object of a patent right is an invention that is to say the idea of a new process, instrument or manufacture. The patentee has a right to the exclusive use of this idea. Similarly, the object of literary copyright is the form of literary expression produced by the author of a book. In this he has a valuable interest by reason of the disposition of the public to purchase copies of the book and by the copyright act this interest has been raised to the level of a legal right. Seven, rights to services. Finally, we have to take account of rights vested in one person to the services of another. The rights, for example, which are created by a contract between master and servant, physician and patient or employer and workman. In all such cases, the object of the right is the skill, knowledge, strength, time and so forth of the person bound. If I hire a physician, I obtain thereby a right to the use and benefit of his skill and knowledge. Just as when I hire a horse, I acquire a right to the use and benefit of his strength and speed. Or we may say if we prefer it that the object of a right of personal service is the person of him who is bound to render it. A man may be the subject matter of rights as well as the subject of them. His mind and body constitute an instrument which is capable of certain uses just as a horse or a steam engine is. In a law which recognizes slavery, the man may be bought and sold just as the horse or steam engine may. But in our own law, this is not so. And the only right that can be acquired over a human being is a temporary and limited right to the use of him created by voluntary agreement with him, not a permanent and general right of ownership over him. Section 74, legal rights in a wider sense of the term. Hitherto, we have confined our attention to legal rights in the strictest and most proper sense. It is in this sense only that we have regarded them as the co-relatives of legal duties and have defined them as the interests which the law protects by imposing duties with respect to them upon other persons. We have now to notice that the term is also used in a wider and laxer sense to include any legally recognized interest, whether it corresponds to a legal duty or not. In this generic sense, a legal right may be defined as any advantage or benefit which is in any manner conferred upon a person by a rule of law. Of rights in this sense, there are at least three distinct kinds sufficiently important to call for separate classification and discussion. These are one, rights in the strict sense, two, liberties and three, powers. Having already sufficiently considered the first of these, we shall now deal briefly with the others. Section 75, liberties. Just as my legal rights in the strict sense are the benefits which I derive from legal duties imposed upon other persons, so my legal liberties are the benefits which I derive from the absence of legal duties imposed upon myself. They are the various forms assumed by the interest which I have in doing as I please. They are the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone. It is clear that the term right is often used in a wide sense to include such liberty. I have a right, that is to say I am at liberty, to do as I please with my own, but I have no right and am not at liberty to interfere with what is another's. I have a right to express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel. I have a right to defend myself against violence, but I have no right to take revenge upon him who has injured me. The interests of unrestrained activity thus recognized and allowed by the law constitute a class of legal rights clearly distinguishable from those which we have already considered. Rights of the one class are concerned with those things which other persons ought to do for me. Rights of the other class are concerned with those things which I may do for myself. The former pertain to the sphere of obligation or compulsion, the latter to that of liberty or free will. Both are legally recognized interests. Both are advantages derived from the law by the subjects of the state, but they are two distinct species of one genus. It is often said that all rights whatsoever correspond to duties. And by those who are of this opinion a different explanation is necessarily given of the class of rights which we have just considered. It is said that illegal liberty is in reality a legal right not to be interfered with by other persons in the exercise of one's activities. It is alleged that the real meaning of the proposition that I have a legal right to express what opinions I please is that other persons are under illegal duty not to prevent me from expressing them. So that even in this case the right is the co-relative of a duty. Now there is no doubt that in most cases a legal liberty of acting is accompanied by a legal right not to be hindered in so acting. If the law allows me a sphere of lawful and innocent activity it usually takes care at the same time to protect this sphere of activity from alien interference. But in such a case there are in reality two rights and not merely one. And there are instances in which liberties are not thus accompanied by protecting rights. I may have a legal liberty which involves no such duty of non-interference imposed on others. If a land owner gives me a license to go upon his land I have a right to do so in the sense in which a right means a liberty. But I have no right to do so in the sense in which a right vested in me is the co-relative of a duty imposed upon him. Though I have a liberty or right to go on his land he has an equal right or liberty to prevent me. The license has no other effect than to make that lawful which would otherwise be unlawful. The right which I so acquire is nothing more than an extension of the sphere of my rightful activity. So a trustee has a right to receive from the beneficiaries remuneration for his trouble in administering the estate in the sense that in doing so he does no wrong. But he has no right to receive remuneration in the sense that the beneficiaries are under any duty to give it to him. So an alien has a right in the sense of liberty to enter British dominions but the executive government has an equal right in the same sense to keep him out. That I have a right to destroy my property does not mean that it is wrong for other persons to prevent me. It means that it is not wrong for me so to deal with that which is my own. That I have no right to commit theft does not mean that other persons may lawfully prevent me from committing such a crime but that I myself act illegally in taking property which is not mine. Section 76, powers. Yet another class of legal rights consist of those which are termed powers. Examples of such are the following. The right to make a will or to alienate property. The power of sale vested in a mortgagee. A landlord's right of reentry. The right to marry one's deceased wife's sister. That power of obtaining in one's favor the judgment of a court of law which is called a right of action. The right to rescind a contract for fraud. A power of appointment. The right of issuing execution on a judgment. The various powers vested in judges and other officials for the due fulfillment of their functions. All these are legal rights. They are legally recognized interests. They are advantages conferred by the law but they are rights of a different species from the two classes which we have already considered. They resemble liberties and differ from rights stricto senzu in as much as they have no duties corresponding to them. My right to make a will corresponds to no duty in anyone else. A mortgagee's power of sale is not the correlative of any duty imposed upon the mortgageor. Though it is otherwise with his right to receive payment of the mortgage debt. A debt is not the same thing as a right of action for its recovery. The former is a right in the strict and proper sense corresponding to the duty of the debtor to pay. The latter is a legal power corresponding to the liability of the debtor to be sued. That the two are distinct appears from the fact that the right of action may be destroyed as by prescription while the debt remains. It is clear therefore that a power is not the same thing as a right of the first class. Neither is it identical with the right of the second class namely a liberty. That I have a right to make a will does not mean that in doing so I do no wrong. It does not mean that I may make a will innocently. It means that I can make a will effectively. That I have a right to marry my cousin does not mean that such a marriage is legally innocent but that it is legally valid. It is not a liberty that I have but a power. That a landlord has a right of reentry on his tenant does not mean that in reentering he does the tenant no wrong but that by so doing he effectively terminates the lease. A power may be defined as ability conferred upon a person by the law to determine by his own will directed to that end the rights, duties, liabilities or other legal relations either of himself or of other persons. Powers are either public or private. The former are those which are vested in a person as an agent or instrument of the functions of the state. They comprise the various forms of legislative, judicial and executive authority. Private powers on the other hand are those which are vested in persons to be exercised for their own purposes and not as agents of the state. Power is either ability to determine the legal relations of other persons or ability to determine one's own. The first of these power over other persons is commonly called authority. The second power over oneself is usually termed capacity. These then are the three chief classes of benefits, privileges or rights conferred by the law. Liberty when the law allows to my will a sphere of unrestrained activity. Power when the law actively assists me in making my will effective. Right in the strict sense when the law limits the liberty of others in my behalf. A liberty is that which I may do innocently. A power is that which I can do effectively. A right in the narrow sense is that which other persons ought to do on my behalf. I use my liberties with the acquiescence of the law. I use my powers with its active assistance in making itself the instrument of my will. I enjoy my rights through the control exercised by it over the acts of others on my behalf. Section 77, duties, disabilities and liabilities. There is no generic term which is the correlative of right in the wide sense and includes all the burdens imposed by the law as a right includes all the benefits conferred by it. These legal burdens are of three kinds being either duties, disabilities or liabilities. A duty is the absence of liberty. A disability is the absence of power. A liability is the presence either of liberty or of power vested in someone else as against the person liable. Examples of liabilities correlative to liberties are the liability of a trespasser to be forcibly ejected, that of a defaulting tenant to have his goods seized for rent and that of the owner of a building to have his windows darkened or his foundations weakened by the building or excavations of his neighbors. Examples of liabilities correlative to powers are the liability of a tenant to have his lease determined by re-entry, that of a mortgager to have his property sold by the mortgagee, that of a judgment debtor to have execution issued against him and that of an unfaithful wife to be divorced. The most important form of liability is that which corresponds to the various powers of action and prosecution arising from the different forms of wrongdoing. There is accordingly a narrow sense of the word liability in which it covers this case exclusively. Liability in this sense is the correlative of a legal remedy. A synonym for it is responsibility. It is either civil or criminal according as it corresponds to a right of action or to a right of prosecution. Summary, the nature of a wrong, moral and legal wrongs, the nature of a duty, moral and legal duties, the nature of a right, interests, their protection by the rule of right, interests and rights, moral and legal rights, the denial of moral rights, the correlation of rights and duties, no rights without duties, no duties without rights, the elements of a legal right, one, person entitled or owner, two, person bound, three, content, four, object or subject matter, five, title, no rights without owners, no rights without objects, objects of rights, one, material things, two, one's own person, three, reputation, four, domestic relations, five, other rights, six, immaterial property, seven, services, rights in the generic sense, any benefit conferred by the law, one, rights strictosensu, correlative to duties, two, liberties, correlative to liabilities, three, powers, correlative to liabilities, one, rights strictosensu, what others must do for me, two, liberties, what I may do for myself, three, powers, what I can do as against others, duties, liabilities, disabilities. End of section 15, recording by Colleen McMahon. Section 16 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Jurisprudence by John Salman. Section 16. Chapter 11, The Kinds of Legal Rights, Part 1. Section 78, Perfect and Imperfect Rights. Recognition by the law in the administration of justice is common to all legal rights and duties, but the purposes and effects of this recognition are different in different cases. All are not recognized to the same end. Hence, a division of rights and duties into two kinds distinguishable as perfect and imperfect. A perfect right is one which corresponds to a perfect duty, and a perfect duty is one which is not merely recognized by the law but enforced. A duty is enforceable when an action or other legal proceeding, civil or criminal, will lie for the breach of it and when judgment will be executed against the defendant if need be through the physical force of the state. Enforceability is the general rule. In all ordinary cases, if the law will recognize a right at all, it will not stop short of the last remedy of physical compulsion against him on whom the correlative duty lies. Aut, in the mouth of the law, commonly means must. In all fully developed legal systems, however, there are rights and duties which though undoubtedly recognized by the law, yet fall short of this typical and perfect form. Examples of such imperfect legal rights are claims barred by lapse of time, claims unenforceable by action, owing to the absence of some special form of legally requisite proof, such as a written document, claims against foreign states or sovereigns as for interest due on foreign bonds, claims unenforceable by action as exceeding the local limits of a court's jurisdiction, such as claims in respect of foreign land, debts due to an executor from the estate which he administers. In all those cases, the duties and the correlative rights are imperfect. No action will lie for their maintenance, yet they are for all that legal rights and legal duties, for they receive recognition from the law. The statute of limitations, for example, does not provide that after a certain time, a debt shall become extinct, but merely that no action shall thereafter be brought for its recovery. Lapse of time, therefore, does not destroy the right, but merely reduces it from the rank of one which is perfect to that of one which is imperfect. It remains valid for all purposes, save that of enforcement. In like manner, he from whom a chattel is taken wrongfully and detained for six years, loses all right to sue the taker for its recovery, but he does not cease to be the owner of it, nor is his ownership merely an empty title, for in diverse ways it may lead him with the assistance of the law to the possession and enjoyment of his own again. All these cases of imperfect rights are exceptions to the maxim, Ubi Yus Ebi Remedium. The customary union between the right and the right of action has been for some special reason severed, but the right survives. For what purposes the law will recognize an imperfect right is a question relating to the concrete details of a legal system and cannot be fully discussed here. We may, however, distinguish the following effects as those of greatest importance and most general application. One, an imperfect right may be good as a ground of defense, though not as a ground of action. I cannot sue on an informal contract, but if money is paid or property delivered to me in pursuance of it, I can successfully defend any claim for its recovery. Two, an imperfect right is sufficient to support any security that has been given for it. A mortgage or pledge remains perfectly valid, although the debt secured by it has ceased to be recoverable by action. But if the debt is discharged, instead of becoming merely imperfect, the security will disappear along with it. Three, an imperfect right may possess the capacity of becoming perfect. The right of action may not be non-existent, but may be merely dormant. An informal verbal contract may become enforceable by action by reason of the fact that written evidence of it has since come into existence. In like manner, part payment or acknowledgement will raise once more to the level of a perfect right, a debt that has been barred by the lapse of time. Section 79, the legal nature of rights against the state. A subject may claim rights against the state, no less than against another subject. He can institute proceedings against the state for the determination and recognition of those rights in due course of law, and he can obtain judgment in his favor, recognizing their existence or awarding to him compensation for their infringement. But there can be no enforcement of that judgment. What duties the state recognizes as owing by it to its subjects, it fulfills of its own free will and unconstrained good pleasure. The strength of the law is none other than the strength of the state and cannot be turned or used against the state whose strength it is. The rights of the subject against the state are therefore imperfect. They obtained legal recognition, but no legal enforcement. The fact that the element of enforcement is thus absent in the case of rights against the state has induced many writers to deny that these are legal rights at all. But as we've already seen, we need not so narrowly define the term legal right as to include only those claims that are legally enforced. It is equally logical and more convenient to include within the term all those claims that are legally recognized in the administration of justice. All rights against the state are not legal any more than all rights against private persons are legal, but some of them are those namely which can be sued for in courts of justice and the existence and limits of which will be judicially determined in accordance with fixed principles of law, redress or compensation being awarded for any violation of them. To hold the contrary and to deny the name of legal right or duty in all cases in which the state is the defendant is to enter upon a grave conflict with legal and popular speech and thought. In the language of lawyers, as in that of laymen, a contract with the state is as much a source of legal rights and obligations as is a contract between two private persons and the right of the holder of consoles is as much a legal right as is that of a debenture holder in a public company. It is not to the point to say that rights against the state are held at the state's good pleasure and are therefore not legal rights at all for all other legal rights are in the same position. They are legal rights, not because the state is bound to recognize them but because it does so. Whether rights against the state can properly be termed legal depends simply on whether judicial proceedings in which the state is the defendant are properly included within the administration of justice. For if they are rightly so included, the principles by which they are governed are true principles of law in accordance with the definition of law and the rights defined by these legal principles are true legal rights. The boundary line of the administration of justice has been traced in a previous chapter. We there saw sufficient reason for including not only the direct enforcement of justice but all other judicial functions exercised by courts of justice. This is the ordinary use of the term and it seems open to no logical objection. Section 80, positive and negative rights. In respect of their contents, rights are of two kinds being either positive or negative. A positive right corresponds to a positive duty and is a right that he on whom the duty lies shall do some positive act on behalf of the person entitled. A negative right corresponds to a negative duty and is a right that the person bound shall refrain from some act which would operate to the prejudice of the person entitled. The same distinction exists in the case of wrongs. A positive wrong or wrong of commission is the breach of a negative duty and the violation of a negative right. A negative wrong or wrong of omission is the breach of a positive duty and the infringement of a positive right. A negative right entitles the owner of it to the maintenance of the present position of things. A positive right entitles him to an alteration of this position for his advantage. The former is merely a right not to be harmed. The latter is a right to be positively benefited. The former is a right to retain what one already has. The latter is a right to receive something more than one already has. In the case of a negative right, the interest, which is its de facto basis, is of such a nature that it requires for its adequate maintenance or protection nothing more than the passive acquiescence of other persons. All that is asked by the owner of the interest is to be left alone in the enjoyment of it. In the case of a positive right, on the other hand, the interest is of a less perfect and self-sufficient nature in as much as the person entitled requires for the realization and enjoyment of his right the active assistance of other persons. In the former case, I stand in an immediate and direct relation to the object of my right and claim from others nothing more than that they shall not interfere between me and it. In the latter case, I stand in immediate and indirect relation to the object so that I can attain it to it only through the active help of others. My right to the money in my pocket is an example of the first class. My right to the money in the pocket of my debtor is an instance of the second. The distinction is one of practical importance. It is much easier, as well as much more necessary for the law to prevent the infliction of harm than to enforce positive beneficence. Therefore, while liability for hurtful acts of commission is the general rule, liability for acts of omission is the exception. Generally speaking, all men are bound to refrain from all kinds of positive harm, while only some men are bound in some ways actively to confer benefits on others. No one is entitled to do another any manner of hurt save with special ground of justification, but no one is bound to do another any matter of good save on special grounds of obligation. Every man has a right against every man that the present position of things shall not be interfered with to his detriment, whilst it is only in particular cases and for special reasons that any man has a right against any man that the present position shall be altered for his advantage. I have a right against everyone not to be pushed into the water. If I have a right at all to be pulled out, it is only on special grounds against determinate individuals. Section 81, real and personal rights. The distinction between real and personal rights is closely connected but not identical with that between negative and positive rights. It is based on a difference in the incidence of the correlated duties. A real right corresponds to a duty imposed upon persons in general. A personal right corresponds to a duty imposed upon determinate individuals. A real right is available against the world at large. A personal right is available only against particular persons. The distinction is one of great prominence in the law and we may take the following as illustration of it. My right to the peaceable occupation of my farm is a real right for all the world is under a duty towards me not to interfere with it. But if I grant a lease of the farm to a tenant, my right to receive the rent from him is personal for it avails exclusively against the tenant himself. For the same reason, my right to possession and use of the money in my purse is real but my right to receive money from someone who owes it to me is personal. I have a real right against everyone not to be deprived of my liberty or my reputation. I have a personal right to receive compensation from any individual person who has imprisoned or defamed me. I have a real right to the use and occupation of my own house. I have a personal right to receive accommodation at an inn. A real right then is an interest protected against the world at large. A personal right is an interest protected solely against determinate individuals. The distinction is clearly one of importance. The law confers upon me a greater advantage in protecting my interest against all persons than in protecting them only against one or two. The right of a patentee who has a monopoly as against all the world is much more valuable than the right of him who purchases the goodwill of a business and is protected only against the competition of his vendor. If I buy a chattel it is an important question whether my interest in it is forthwith protected against everyone or only against him who sells it to me. The main purpose of mortgages and other forms of real security is to supplement the imperfections of a personal right by the superior advantages inherent in a right of the other class. Furthermore, these two kinds of rights are necessarily very different in respect of the modes of their creation and extinction. The indeterminate incidents of the duty which corresponds to a real right renders impossible many modes of dealing with it which are of importance in the case of personal rights. The distinction which we are now considering is closely connected with that between positive and negative rights. All real rights are negative and most personal rights are positive. Though in a few exceptional cases they are negative. It is not difficult to see the reason for this complete or partial coincidence. A real right available against all other persons can be nothing more than a right to be left alone by those persons. A right to their passive non-interference. No person can have a legal right to the active assistance of all the world. The only duties therefore that can be of general incidents are negative. It may be objected to this that though a private person cannot have a positive right against all other persons, yet the state may have such a right against all its subjects. All persons, for example, may be bound to pay a tax or to send in census returns. Are not these duties of general incidents and yet positive? The truth is, however, that the right of the state in all such cases is personal and not real. The right to receive a tax is not one right, but as many separate rights as there are taxpayers. If I owe 10 pounds to the state as income tax, the right of the state against me is just as personal as that of any other creditor and it does not change its nature because other persons or even all my fellow citizens owe a similar amount on the like account. My debt is not theirs, nor are their debts mine. The state has not one real right available against all, but an immense number of personal rights, each of which avails against a determinate taxpayer. On the other hand, the rights of the state that no person shall trespass on a piece of crown land is a single interest protected against all the world and is therefore a single real right. The unity of a real right consists in the singleness of its subject matter. The right of reputation is one right, corresponding to an infinite number of duties. For the subject matter is one thing belonging to one person and protected against all the world. Although all real rights are negative, it is not equally true that all personal rights are positive. This is so indeed in the great majority of cases. The merely passive duty of non-interference, when it exists at all, usually binds all persons in common. There are, however, exceptional cases in which this is not so. These exceptional rights, which are both negative and personal, are usually the product of some agreement by which some particular individual has deprived himself of a liberty which is common to all other persons. Thus all tradesmen may lawfully compete with each other in the ordinary way of business, even though the result of this competition is the ruin of the weaker competitors. But in selling to another the goodwill of my business I may lawfully deprive myself of this liberty by an express agreement with the purchaser to that effect. He thereby acquires against me a right of exemption from competition and this right is both personal and negative. It is a monopoly, protected not against the world at large but against a determinate individual. Such rights belong to an intermediate class of small extent, standing between rights which are both real and negative on the one side and those which are both personal and positive on the other. In defining a real right as one availing against the world at large, it is not meant that the incidents of the correlative duty is absolutely universal but merely that the duty binds persons in general and that if anyone is not bound to his case is exceptional. Similarly, a personal right is not one available against a single person only but one available against one or more determinate individuals. The right of the creditor of a firm is personal though the debt may be due from any number of partners. Even as so explained however, it can scarcely be denied that if intended as an exhaustive classification of all possible cases, the distinction between real and personal rights between duties of general and of determinate incidents is logically defective. It takes no account of the possibility of a third and intermediate class. Why should there not be rights available against particular classes of persons as opposed both to the whole community and to persons individually determined? For example, a right available only against aliens. An examination however, of the contents of any actual legal system will reveal the fact that duties of this suggested description either do not exist at all or are so exceptional that we are justified in classing them as anomalous. As a classification therefore of the rights which actually obtain legal recognition, the distinction between real and personal rights may be accepted as valid. The distinction between a real and personal right is otherwise expressed by the terms right in rem or in re and right in personum. These expressions are derived from the commentators on the civil and canon law. Literally interpreted, use in rem means a right against or in respect of a thing, use in personum, a right against or in respect of a person. In truth however, every right is at the same time one in respect of something, namely its object and against some person, namely the person bound. In other words, every right involves not only a real but also a personal relation. Yet although these two relations are necessarily coexistent, their relative prominence and importance are not always the same. In real rights, it is the real relation that stands in the forefront of the juridical conception. Such rights are emphatically and conspicuously in rem. In personal rights, on the other hand, it is the personal relation that forms the predominant factor in the conception. Such rights are before all things in personum. For this difference, there is more than one reason. In the first place, the real right is a relation between the owner and a vague multitude of persons, no one of whom is distinguished from any other. While a personal right is a definite relation between determinate individuals and the definiteness of this personal relation raises it into prominence. Secondly, the source or title of a real right is commonly to be found in the character of the real relation, while personal right generally derives its origin from the personal relation. In other words, if the law confers upon me a real right, it is commonly because I stand in some special relation to the thing which is the object of the right. If, on the contrary, it confers on me a personal right, it is commonly because I stand in some special relation to the person who is the subject of the correlative duty. If I have a real right in a material object, it is because I made it or found it or first acquired possession of it, or because by transfer or otherwise, I have taken the place of someone who did originally stand in some such relation to it. But if I have a personal right to receive money from another, it is commonly because I have made a contract with him or have come in some other manner to stand in a special relation to him. Each of these reasons tends to advance the importance of the real relation in real rights and that of the personal relation in personal rights. The former are primarily and preeminently in REM, the latter primarily and preeminently in personem. The commonest and most important kind of use in personem is that which has been termed by the civilians and canonists, use ad REM. I have a use ad REM when I have a right that some other right shall be transferred to me or otherwise vested in me. Use ad REM is a right to a right. We have already seen in the previous chapter that it is possible for one right to be in this way, the subject matter of another. A debt, a contract to assign property and a promise of marriage are examples of this. It is clear that such a right to a right must be in all cases in personem. The right, which is to be transferred however, the subject matter of the use ad REM may be either real or personal, though it is more commonly real. I may agree to assign or mortgage a debt or the benefit of a contract no less than lands or chattels. An agreement to assign a chattel creates a use ad use in REM. An agreement to assign a debt or contract creates a use ad use in personem. The terms use in REM and use in personem were invented by the commentators on the civil law and are not found in the original sources. The distinction thereby expressed however, received adequate recognition from the Roman lawyers. They drew a broad line of demarcation between dominium on the one side and obligatio on the other, the former including real and the latter personal rights. Dominium is the relation between the owner of a real right, dominus, and the rights so vested in him. Obligatio is the relation between the owner of a personal right, creditor, and the person on whom the correlative duty lies. Obligatio, in other words, is the legal bond by which two or more determinate individuals are bound together. Our modern English obligation has lost this specific meaning and it is applied to any duty, whether it corresponds to a real or a personal right. It is to be noticed, however, that both dominium and obligatio are limited by the Romans to the sphere of what, in the succeeding part of this chapter, we term proprietary rights. A man's right to his personal liberty or reputation, for example, falls neither within the sphere of dominium nor within that of obligatio. The distinction between real and personal rights on the other hand is subject to no such limitation. The terms use in rem and use in personum are derived from the Roman terms oxio in rem and oxio in personum. An oxio in rem was an action for the recovery of dominium, one in which the plaintiff claimed that a certain thing belonged to him and ought to be restored or given up to him. An oxio in personum was one for the enforcement of an obligatio, one in which the plaintiff claimed the payment of money, the performance of a contract or the protection of some other personal right vested in him as against the defendant. Naturally enough, the right protected by an oxio in rem came to be called use in rem and a right protected by an oxio in personum, use in personum. End of section 16, recording by Colleen McMahon. Section 17 of jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Colleen McMahon. Jurisprudence by John Salman, section 17. Chapter 11, The Kinds of Legal Rights, part two. Section 82, Proprietary and Personal Rights. Another important distinction is that between proprietary and personal rights, the aggregate of a man's proprietary rights constitutes his estate, his assets, or his property in one of the many senses of that most equivocal of legal terms. German jurisprudence is superior to our own in possessing a distinct technical term for this aggregate of proprietary rights, namely Vermuggen, the rights themselves being Vermuggensrecht. The French speak in the same fashion of avoire or patrimoine. The sum total of a man's personal rights, on the other hand, constitutes his status or personal condition as opposed to his estate. If he owns land or chattels or patent rights or the goodwill of a business or shares in a company or if debts are owing to him, all these rights pertain to his estate. But if he is a free man and a citizen, a husband and a father, the rights which he has as such pertain to his status or standing in the law. What then is the essential nature of this distinction? It lies in the fact that proprietary rights are valuable and personal rights are not. The former are those which are worth money. The latter are those that are worth none. The former are the elements of a man's wealth. The latter are merely elements in his well-being. The former possess not merely juridical but also economic significance while the latter possess juridical significance only. It makes no difference in this respect whether a right is use in rem or use in personem. Rights of either sort are proprietary and make up the estate of the possessor if they are of economic value. Thus my right to the money in my pocket is proprietary but not less so is my right to the money which I have in the bank. Stock in the funds is part of a man's estate just as much as land and houses and a valuable contract just as much as a valuable chattel. On the other hand, a man's rights of personal liberty and of reputation and of freedom from bodily harm are personal not proprietary. They concern his welfare not his wealth. They are juridical merely not also economic. So also with the rights of a husband and father with respect to his wife and children. Rights such as these constitute his legal status not his legal estate. If we go outside the sphere of private into that of public law we find the list of personal rights greatly increased. Citizenship, honors, dignities and official position in all its innumerable forms pertain to the law of status not to that of property. With respect to the distinction between proprietary and personal rights, estate and status there are the following supplementary observations to be made. One, the distinction is not confined to rights in the strict sense but is equally applicable to other classes of rights also. A person's estate is made up not merely of his valuable claims against other persons but of such of his powers and liberties as are either valuable in themselves or are accessory to other rights which are valuable. A landlord's right of reentry is proprietary no less than his ownership of the land and a mortgagee's right of sale no less than the debt secured. A general power of appointment is proprietary but the power of making a will or a contract is personal. Two, the distinction between personal and proprietary rights has its counterpart in that between personal and proprietary duties and liabilities. The latter are those which relate to a person's estate and diminish the value of it. They represent a loss of money just as a proprietary right represents the acquisition of it. All others are personal. A liability to be sued for a debt is proprietary but a liability to be prosecuted for a crime is personal. The duty of fulfilling a contract for the purchase of goods is proprietary but the duty of fulfilling a contract to marry is personal. Three, although the term estate includes only rights in the generic sense the term status includes not only rights but also duties, liabilities and disabilities. A miner's contractual disabilities are part of his status though a man's debts are not part of his estate. Status is the sum of one's personal duties, liabilities and disabilities as well as of one's personal rights. Four, a person's status is made up of smaller groups of personal rights, duties, liabilities and disabilities and each of these constituent groups is itself called a status. Thus the same person may have at the same time the status of a free man, of a citizen, of a husband, of a father and so on. So we speak of the status of a wife meaning all the personal benefits and burdens of which marriage is the legal source and title in a woman. In the same way we speak of the status of an alien, a lunatic or an infant. Five, it may be thought that proprietary rights should be defined as those which are transferable. Rather than as those which are valuable. As to this it seems clear that all transferable rights are also proprietary for if they can be transferred they can be sold and are therefore worth money. But it is not equally true that all proprietary rights are transferable. Popular speech does not and legal theory need not deny the name of property to a valuable right merely because it is not transferable. A pension may be inalienable but it must be counted for all that as wealth or property. Debt were originally incapable of assignment but even then they were elements of the creditor's estate. A married woman may be unable to alienate her estate but it is an estate nonetheless. The true test of a proprietary right is not whether it can be alienated but whether it is equivalent to money and it may be equivalent to money though it cannot be sold for a price. A right to receive money or something which can itself be turned into money is a proprietary right and is to be reckoned in the possessor's estate even though inalienable. Six, it is an unfortunate circumstance that the term status is used in a considerable variety of different senses. Of these we may distinguish the following. A, legal condition of any kind whether personal or proprietary. This is the most comprehensive use of the term. A man's status in this sense includes his whole position in the law. The sum total of his legal rights, duties, liabilities or other legal relations whether proprietary or personal or any particular group of them separately considered. Thus we may speak of the status of a landowner, of a trustee, of an executor, of a solicitor and so on. It is much more common however to confine the term in question to some particular description of legal condition, some particular kind of status in this wide sense. Hence the other and specific meanings of the term. B, personal legal condition. That is to say a man's legal condition only so far as his personal rights and burdens are concerned to the exclusion of his proprietary relations. It is in this sense that we have hitherto used the term. Thus we speak of the status of an infant, of a married woman, of a father, of a public official or of a citizen but not of a landowner or of a trustee. C, personal capacities and incapacities as opposed to the other elements of personal status. By certain writers the term status is applied not to the whole sphere of personal condition but only to one part of it, namely that which relates to personal capacity and incapacity. The law of status in this sense would include the rules as to the contractual capacities and incapacities of married women but not the personal rights and duties existing between her and her husband. So it would include the law as to infant's contracts but not the law as to the mutual rights of parent and child. This law of status in the sense of personal capacity is considered as a special branch of the law introductory to the main body of legal doctrine on the ground that a knowledge of the different capacities of different classes of persons to acquire rights and to enter into legal relations is presupposed in the exposition of those rights and legal relations themselves. It cannot be doubted that there are certain rules which so permeate the law that it is necessary in any well-arranged system to dispose of them once for all in a preliminary portion of the code instead of constantly repeating them in connection with every department of the law in which they are relevant but it may be doubted whether the rules of personal capacity belong to this category. Surely the contractual capacity of a minor is best dealt with in the law of contracts. His capacity to commit a tort in the law of tort. His capacity to commit a crime in the criminal law. His capacity to marry in the law of marriage. Moreover, even if personal capacity is a suitable subject for separate and introductory treatment in the law there seems little justification for confining the term status to this particular branch of personal condition. D, compulsory as opposed to conventional personal condition. Status is used by some writers to signify a man's personal legal condition so far only as it is imposed upon him by the law without his own consent as opposed to the condition which he has acquired for himself by agreement. The position of a slave is a matter of status. The position of a free servant is a matter of contract. Marriage creates a status in this sense for although it is entered into by way of consent it cannot be dissolved in that way and the legal condition created by it is determined by the law and cannot be modified by the agreement of the parties. A business partnership on the other hand pertains to the law of contract and not to that of status. Seven, the law of persons and the law of things. Certain of the Roman lawyers, for example, Gaius divided the whole of the substantive law into two parts which they distinguished as use quote add personas pertinent and use quote add rest pertinent. Terms which are commonly translated as the law of persons and the law of things. There has been much discussion as to the precise significance of this distinction and it is possible that it was based on no clear and consistent logical analysis at all. Any adequate investigation of the matter would here be out of place but it is suggested that the true basis of the division is the distinction between personal and proprietary rights between status and property. The use quote add rest pertinent is the law of property, the law of proprietary rights. The use quote add personas pertinent is the law of status, the law of personal rights. So far as such rights require separate consideration instead of being dealt with in connection with those portions of the law of property to which they are immediately related. Section 83, rights in repropria and rights in realiena. Rights may be divided into two kinds distinguished by the civilians as yorah in repropria and yorah in realiena. The latter may also be conveniently termed encumbrances if we use that term in its widest permissible sense. A right in realiena or encumbrance is one which limits or derogates from some more general right belonging to some other person in respect of the same subject matter. All others are yorah in repropria. It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass part of it being cut off to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to and limited by that of a tenant to the temporary use of the property or to the right of a mortgagee to sell or take possession or to the right of a neighboring landowner to the use of a way or other easement or to the right of the vendor of land in respect of restrictive covenants entered into by the purchaser as to the use of it. For example, a covenant not to build upon it. A right subject to an encumbrance may be conveniently designated as servient while the encumbrance which derogates from it may be contrasted as dominant. These expressions are derived from and conform to Roman usage in the matter of servitudes. The general and subordinate right was spoken of figuratively by the Roman lawyers as being in bondage to the special right which prevailed over and derogated from it. The term servitus thus derived came to denote the superior right itself rather than the relation between it and the other just as obligatio came to denote the right of the creditor rather than the bond of legal subjection under which the debtor lay. The terms use in repropria and use in realiana were devised by the commentators on the civil law and are not to be found in the original sources. Their significance is clear. The owner of a chattel has use in repropria, a right over his own property. The Pledgeee or other encumbrancer of it has use in realiana, a right over the property of someone else. There is nothing to prevent one encumbrance from being itself subject to another. Thus a tenant may sublet, that is to say, he may grant a lease of his lease and so confer upon the sublessee a use in realiana of which the immediate subject matter is itself merely another right of the same quality. The right of the tenant in such a case is dominant with regard to that of the landowner but servient with regard to that of the sublessee. So the mortgagee of land may grant a mortgage of his mortgage, that is to say he may create what is called a sub-mortgage. The mortgage will then be a dominant right in respect of the ownership of the land but a servient right with respect to the sub-mortgage. So the easements a pertinent to land are leased or mortgaged along with it and therefore though themselves encumbrances they are themselves encumbered. Such a series of rights each limiting and derogating from the one before it may in theory extend to any length. A right is not to be classed as encumbered or servient merely on account of its natural limits and restrictions. Otherwise all rights would fall within this category since none of them are unlimited in their scope all being restrained within definite boundaries by the conflicting interests and rights of other persons. All ownership of material things for example is limited by the maxim sik uderay tuo ut elianum non leedis. Every man must so restrain himself in the use of his property as not to infringe upon the property and rights of others. The law confers no property in stones sufficiently absolute and unlimited to justify their owner in throwing them through his neighbor's windows. No land owner may by reason of his ownership inflict a nuisance upon the public or upon adjoining proprietors. But in these and all similar cases we are dealing merely with the normal and natural boundaries of the right not with those exceptional and artificial restrictions which are due to the existence of Yorah Inri Aliana vested in other persons. A servient right is not merely a limited right for all are limited. It is a right so limited that its ordinary boundaries are infringed. It is a right which owing to the influence of some other and superior right is prevented from attaining its normal scope and dimensions. Until we have first settled the natural contents and limits of a right there can be no talk of other rights which qualify and derogate from it. It is essential to an encumbrance that it should in the technical language of our law run with the right encumbered by it. In other words, the dominant and the servient rights are necessarily concurrent. By this it is meant that an encumbrance must follow the encumbered right into the hands of new owners so that a change of ownership will not free the right from the burden imposed upon it. If this is not so, if the right is transferable free from the burden there is no true encumbrance. For the burden is then merely personal to him who is subject to it and does not in truth limit or derogate from the right itself. This right still exists in its full compass since it can be transferred in its entirety to a new owner. For this reason an agreement to sell land vests an encumbrance or use in realiana in the purchaser but an agreement to sell a chattel does not. The former agreement runs with the property while the latter is non-concurrent. So the fee simple of land may be encumbered by negative agreements such as a covenant not to build. For speaking generally such obligations will run with the land into the hands of successive owners. But positive covenants are merely personal to the covenantor and derogate in no way from the fee simple vested in him which he can convey to another free from any such burdens. Concurrents however may exist in different degrees. It may be more or less perfect or absolute. The encumbrance may run with the servient right into the hands of some of the successive owners and not into the hands of others. In particular, encumbrances may be concurrent either in law or merely in equity. In the latter case the concurrence is imperfect or partial since it does not prevail against the kind of owner known in the language of the law as a purchaser for value without notice of the dominant right. Examples of encumbrances running with their servient rights at law are easements leases and legal mortgages. On the other hand, an agreement for a lease, an equitable mortgage, a restrictive covenant as to the use of land and a trust will run with their respective servient rights in equity but not at law. It must be carefully noted that the distinction between Yorah in Repropria and Yorah in Rialiena is not confined to the sphere of real rights or Yorah in Rem. Personal, no less than real rights may be encumbrances of other rights. Personal, no less than real rights may be themselves encumbered. A debtor, for example, may grant a security over the book debts owing to him and his business or over his shares in a company as well as over his stock and trade. A life tenancy of money in the public funds is just as possible as a life tenancy of land. There can be a lien over a man's share in a trust fund as well as over a chattel belonging to him. The true test of an encumbrance is not whether the encumbrancer has a use in Rem available against all the world but whether he has a right which will avail against subsequent owners of the encumbrant property. The chief classes of encumbrances are four in number, namely leases, servitudes, securities and trusts. In a later chapter we shall consider these at more length and in the meantime it is sufficient briefly to indicate their nature. One, a lease is the encumbrance of property vested in one man by a right to the possession and use of it vested in another. Two, a servitude is a right to the limited use of a piece of land unaccompanied either by the ownership or by the possession of it. For example, a right of way or a right to the passage of light or water across adjoining land. Three, a security is an encumbrance vested in a creditor over the property of his debtor for the purpose of securing the recovery of the debt. A right, for example, to retain possession of a chattel until the debt is paid. Four, a trust is an encumbrance in which the ownership of property is limited by an equitable obligation to deal with it for the benefit of someone else. The owner of the encumbrant property is the trustee. The owner of the encumbrance is the beneficiary. Section 84, principle and accessory rights. The relation between principle and accessory rights is the reverse of that just considered as existing between the servient and dominant rights. For every right is capable of being affected to any extent by the existence of other rights and the influence thus exercised by one upon another is of two kinds, being either adverse or beneficial. It is adverse when one right is limited or qualified by another vested in a different owner. This is the case already dealt with by us. It is beneficial on the other hand when one right has added to it a supplementary right vested in the same owner. In this case, the right so augmented may be termed to the principal while the one so appurtenant to it is the accessory right. Thus a security is accessory to the right secured. A servitude is accessory to the ownership of the land for whose benefit it exists. The rent and covenants of a lease are accessory to the landlord's ownership of the property. Covenants for title and a conveyance are accessory to the estate conveyed and a right of action is accessory to the right for whose enforcement it is provided. A real right may be accessory to a personal as in the case of a debt secured by a mortgage of land. A personal right may be accessory to a real as in the case of the covenants of a lease. A real right may be accessory to a real as in the case of servitudes appurtenant to land. And finally, a personal right may be accessory to a personal as in the case of a debt secured by a guarantee. A right which is dominant with respect to one right is often at the same time accessory with respect to another. It limits one right and at the same time, augments another. A typical example is a servitude over land. The owner of Whiteacre has a right of way over the adjoining farm Blackacre to the highway. This right of way is dominant with respect to Blackacre and accessory with respect to Whiteacre. For the burden of it goes with Blackacre and the benefit of it with Whiteacre. Blackacre is accordingly called the Serviant and Whiteacre the dominant tenement. So a mortgage is a dominant right with respect to the property subject to it and an accessory right with respect to the debt secured by it. In like manner, a landlord's right to his rent is dominant with regard to the lease but accessory with regard to the reversion. This double character, however, is not necessary or universal. A public right of way is an encumbrance of the land subject to it but it is not accessory to any other land. So a lease is a dominant right which is not at the same time accessory to any principle. Section 85, Legal and Equitable Rights. In a former chapter, we considered the distinction between common law and equity. We saw that these two systems of law administered respectively in the courts of common law and the court of chancery were to a considerable extent discordant. One of the results of this discordance was the establishment of a distinction between two classes of rights, distinguishable as legal and equitable. Legal rights are those which were recognized by the courts of common law. Equitable rights, otherwise called equities, are those which were recognized solely in the court of chancery. Notwithstanding the fusion of law and equity by the Judicature Act 1873, this distinction still exists and must be reckoned with as an inherent part of our legal system. That which would have been merely an equitable right before the Judicature Act is merely an equitable right still. In as much as all rights, whether legal or equitable, now obtain legal recognition in all courts, it may be suggested that the distinction is now of no importance. This is not so, however. For in two respects at least, these two classes of rights differ in their practical effects. One, the methods of their creation and disposition are different. A legal mortgage of land must be created by deed, but an equitable mortgage may be created by a written agreement or by a mere deposit of title deeds. A similar distinction exists between a legal and an equitable lease, a legal and an equitable servitude, a legal and an equitable charge on land, and so on. Two, equitable rights have a more precarious existence than legal rights. Where there are two inconsistent legal rights claimed adversely by different persons over the same thing, the first in time prevails. Qui prior est tempore potior est euro. A similar rule applies to the competition of two inconsistent equitable rights, but when a legal and an equitable right conflict, the legal will prevail over and destroy the equitable, even though subsequent to it in origin provided that the owner of the legal right acquired it for value and without notice of the prior equity. As between a prior equitable mortgage, for example, and a subsequent legal mortgage, preference will be given to the latter. The maximum is where there are equal equities the law will prevail. This liability to destruction by conflict with a subsequent legal right is an essential feature and a characteristic defect of all rights which are merely equitable. Summary. One, rights, perfect, enforceable by law, imperfect, recognized by law, but not enforceable, the legal quality of rights against the state. Two, rights, positive, correlative to positive duties and negative wrongs. Negative, correlative to negative duties and positive wrongs. Three, rights, real, in rem or in re, correlative to duties of indeterminate incidents, all negative. Personal, in personum, correlative to duties of determinant incidents, almost all positive. Yorah ad rem, dominium and obligatio. Four, rights, proprietary, constituting a person's estate or property. Personal, constituting a person's status or personal condition. Other uses of the term status. Five, rights, in re propria, in re aliena, servitus, encumbrance. The natural limits of rights distinguished from encumbrances. The concurrence of the encumbrance and the right encumbered. Encumbrances either real or personal rights. Classes of encumbrances, one leases. Two, servitudes. Three, securities. Four, trusts. Six, principal and accessory rights. Seven, legal and equitable rights. Eight, primary and sanctioning rights. End of section 17, recording by Colleen McMahon.