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NOTES OF THE AMERICAN EDITOR TO CHAPTER I.
(1) Of the form in which rights and duties appear in the law.
Beginners sometimes do not see the extent to which rights and duties figure in the law, because they look only for the broad abstractions which are described under those names in the books. But most of the rights and duties known to the practical law appear either in the form of institutions and relations, each of which denotes complexes of many such rights and duties, or of the ultimate facts out of which rights spring, or by which a right is modified.
The systematic treatment of law is distinguished from that of other sciences by the fact that it does not consist merely in the proper arrangement of the single truths that compose it. In law, these truths change their nature as well as form in the process. The separate rules of law drop their form of rules, of injunctions and prohibitions, and become members of a legal institution. They become the ultimate facts that compose a transaction, or the elements out of which are formed such conceptions as person, thing, rights, obligations, etc. (Ihering, Spirit of Roman Law, 1, 37.)
It is needless to show that this is true of the various names of crimes, of torts and other wrongs, or of the terms of procedure, which belong to the category of remedies-both having definite relations to the conception of a right. But it is equally true of the words designating the different forms of property, e. g., tenement, estate, fee-simple, freehold, remainder, reversion, coparcenary, joint tenancy, appurtenance, fixture, chattel, chose in action, bill of exchange, each of which denotes either a form of the right of property or the object of such a right.
So, also, of the words expressing legal relations, citizen, alien, magistrate, husband, wife, parent, child, ancestor, heir, master, servant, every one of which im
plies a considerable number of rights and duties toward the related or other persons. These differ in this respect from such terms as creditor, debtor, vendor, vendee, grantor, grantee, principal, agent, etc., because the latter designate the parties to a single transaction, while the former characters inhere in the persons to which they belong through a great variety of different transactions, all of which will be modified by the rights and duties peculiar to the persons so designated. In other words, the former terms denote a true status, the others only normal persons, engaged in a single transaction to which their relation is limited, and with which it ends. E. g., of the vendor and vendee no peculiar rules of law can be stated, except those which belong to the sale in question; principal and agent are properly such only with reference to a single contract of agency, no matter how wide its scope. On the other hand, master and servant implies a continuous control, affecting all acts done while it lasts, and in that capacity; and like parent and child may modify rights and duties of any kind, by general rules of law forming the status. In other words, each of the last-mentioned terms "denotes a lot of distinctive rights and duties, marked by a collective name and bound by that name into a complex aggregate." (Bentham, quoted by Austin, p. 723.)
To understand the force or contents of a legal term, the student must distinguish what logicians term its extension, or what it denotes or applies to, and its comprehension (sometimes called intension, but the word is a bad one because only a letter distinguishes it from a word of same sound, but very different meaning, intention), or what it connotes or implies.
The extension of a term denotes the objects to which it may be applied; its comprehension, the qualities which it implies in every one of those objects. E. g., a hereditament is applicable to all kinds of land or rights
to land in fee, whether in possession or in expectancy, in severalty or in common, legal or equitable, absolute or conditional, and whether corporeal or incorporeal. This is the extension of the term "hereditament"; its comprehension implies that every such thing, however it may differ in other respects from the rest, will have the common qualities of passing to the legal heir on the death of the holder, of being exempt from the process of administration, of vesting in the heir by the mere process of law without act of the parties, etc. It will also imply all the qualities of a freehold, of which fee is merely a species if in possession.
Strictly speaking, hereditament and fee are distinguished as a thing, and right to a thing. But this may be overlooked here as belonging rather to the metaphysics of law than to its logic.
Again, crime in its extension denotes treason, felony, misdemeanor, and the subdivisions of each: in its comprehension it implies a wrongful act, a guilty intention or malice, imputability, and in some states an act forbidden by positive law. Misfeasance in its extension denotes acts of fraud, negligent breaches of duty (not of obligation), conversion, nuisance, and a great variety of other causes of action, while it comprehends in every case an indirect wrong, and damage proximately produced by it. Malfeasance in its extension denotes trespasses of all kinds, slander per se, and all other direct wrongs; while it comprehends in every such action a direct infringement of an absolute right from which the law implies damnum. Although actual and even special damnum may be also proved in such actions, it is not an essential part of the cause of action, and therefore is not comprehended in the term.
By a familiar law of logic, as the extension of a term is increased its comprehension is diminished, and vice versa; i. e., the greater number of separate facts or species there may be included in a term, or the greater
number of cases it will apply to, the fewer qualities will be comprehended in the term as common to and possessed by all of them, or the fewer qualities will be implied by it. E. g., the term "estate" is one of wide extension, and applies to every kind of interest held in land, whether freehold, leasehold, or copyhold. (It may be doubtful whether the copyholder had a status in the original sense of the term, but it would be an over-refinement to exclude him now.) But its comprehension is proportionately limited; it implies few qualities as always connoted by it, for the relation between the holder and the land may be of many different kinds.
A freehold estate is of less extension, excluding all the estates less than freehold (leasehold, copyhold, etc.); but it implies duration for life and much else. A fee is of still less extension, but comprehends other qualities, such as inheritability; and so we may go on with fee-simple, fee-simple in possession, fee-simple in possession upon condition, fee-simple in possession upon condition subsequent, etc. For other examples take (a) private wrong (3 Blackst. Com. 1), tort, trespass, false imprisonment; (b) private wrong, tort, case, malicious arrest; (c) private wrong, tort, conversion; (d) remedy, action, equitable action, suit for specific performance; (e) remedy, action, action of tort, replevin. When we analyze a term like real property or crime into various things to which it applies, we proceed from the general to the particular. When we analyze the facts of a client's case until from the concrete fact we have reached the primary right which lies at the basis of the cause of action, we are proceeding from the particular to the general. Yet the term "analysis" is properly used in both cases. The former is analysis in extension; the latter, in comprehension. (Jevons, Lessons in Logic, p. 208.)
The student who wishes to master the whole law
easily and rapidly can find no better exercise than to take any large collection of legal terms, like the titles of the United States Digest or the index of Blackstone or Kent, and arrange them systematically under the following categories:—
1. Denoting legal institutions, e. g., courts.
2. Denoting relations, guardianship.
3. Denoting parties to a single transaction of any kind, e. g., partner.
4. Denoting status, infant.
5. Denoting transactions, contract, gift.
6. Denoting things, easement, fixture, hereditament. 7. Denoting remedies, action, trover, habeas corpus. And the scheme may be enlarged and subdivided to almost any extent, until it embraces every term of fixed legal meaning which is capable of being treated as an ultimate fact.
(2) Rights of things, page 1, title.
Most systems of legal classification, English as well as civilian, are based on the well-known analysis of a right which we owe to Gaius. Every right must belong to a person-must have some thing for its objectmust be enforcible by some remedy or action in the civilian sense, which is broader than the English, and includes what we term special proceedings. It is evident, therefore, that the whole law might be classified by means of persons, or things, or actions. In fact, however, neither method has been used exclusively. A considerable part of English law was classified by means of actions, while the common-law forms of action were in use; but recent changes in practice have deprived this classification of its value. Under the head of Rights of Persons we classify all such rights as attach to some particular class of persons or status, but this leaves undiscriminated the great mass of rights which may belong to all persons. These can only be classified by means of the "things" which are their