Page:The Green Bag (1889–1914), Volume 18.pdf/88

 THEORY AND DOCTRINE OF TORT A general and fundamental limitation of right by law is found in the objects over which the right can extend. The general right "to have" imports, legally speaking, that the object of the particular right is within the control or the authority of the will. Indeed, so far as the question of the existence of the particular right is con cerned, control or authority enters into the very constitution of the idea, as limited by law. Apart from cases of right of the lower order, I have no legal right to or over ob jects beyond my control or authority. Thus I have no legal right to or over light and air beyond me, in the general atmosphere. I have no legal right to the free fish in a stream, though the stream run through my land. An object is within the control of my will, within the meaning of the foregoing para graph, when I can exercise control over it. The object may or may not be in my hands or within my reach; enough that there is nothing to prevent my exercising control over it, so far as any interference by others is concerned. I have a contract for the purchase, and conveyance at a future time, of a house; the house is not mine yet, but no one can interfere with my right to become the owner of it according to the contract — tliat is within my control. So far the house is within the control of my will; so far I have a legal right over it. I have seed in the ground, from which a crop is likely to grow; I have control of seed and expected crop, if no one is preventing my exercise of it. An object is within the authority, as dis tinguished from the control of my will when I am wrongfully deprived, in whole or in part, of my control over it, without losing title to it, as, for example, when my horse is stolen or otherwise wrongfully taken or withheld from my proper control. So of the means by which I aim to exer cise or obtain a legal right. The means must be commensurate with the end; and I have a legal right to use such means

whether within the control or only the authority of my will. But if the means be beyond my control or authority, I can, of course, have no legal right over them and the end desired must as well be in suspense accordingly. The second limitation upon freedom to do what is reasonable is found in procedure. Rights must always be subject to such modes of procedure as are provided for the administration of justice. As a matter of fact, this, until in quite recent times, has been, and to some extent still is, true beyond what might well be considered reasonable requirement. Historically speaking, and the historical side of the matter still lingers, procedure has been treated practically as if that were the principal matter, and rights have had to take second place, reversing the true order and handicapping justice. The handling by the courts of the famous statute of Westminster 2, ch. 24, affords a striking example. Intended to ameliorate rules of procedure, the statute was frittered away by endless refinements, until matters became worse, if possible, than they were before; rights were sacrificed every day to the supposed requirements of procedure. But rules and theories of procedure have undergone much change in recent times, and it is now true in the main that men are free to do what is reasonable, subject to rules of procedure operating only as a nec essary narrowing of the field of legal right. It must not, however, be overlooked that these rules may, themselves, require inter pretation; and so once more what consti tutes legal right is for the judge to decide. The third and last limitation is the per sonal factor, by which is meant the personal limitations of the judge himself, or of judge and jury — the bias of the judge, any lack of knowledge or sound judgment on his part, his views of the law, politics, political economy, ethics, public opinion, or other matter. This limitation need not be dwelt upon; it must be an obvious factor in de termining questions of right by the courts.