Page:The Green Bag (1889–1914), Volume 18.pdf/90

 THEORY AND DOCTRINE OF TORT tain defined or ascertainable persons. The typical example of a right in rent is a right of property; such a right may be enforced against any one and every one whenever occasion arises. The typical example of a right in personam is a right of contract; such a right can be enforced only between the parties to it and their successors. But just as one has the right to enter into contracts freely, so after a contract has been made each of the parties has a corresponding right that others shall not hinder the performance of it with out just cause or excuse. It results that a right in personam may generate a (quasi?) right in rem. But the product, it should be noticed, is a very different thing from that which produces it. The law of torts relates both to rights in rem and to rights in personam, though most torts are breaches of rights availing against all the world, that is, are breaches of rights in roil. Another way of putting the Roman di vision of rights will be found helpful, as serving to explain the origin as well as the nature of rights; and that is by saying that rights are paramount or consensual; the first kind designating those which exist inde pendently of the will of individuals; the second, those which come into existence by consent, actual or presumptive. Both kinds of right are paramount in a sense; but the one kind exists originally and of its own efficacy and is universal, while the other is brought into existence, typically speaking, by the agreement of two or more • persons, and, generally speaking, governs them alone. Still, even with regard to the latter kind of rights, the judges have found it desirable to hold that the relations of the parties to the thing agreed upon are not in all respects consensual, in the sense that there can be no right or duty paramount to the will of the parties in the subject of agreement, a mat ter to which further attention will be called later on. The law of torts deals with both classes of rights; with the first class generally, with the second so far as the rights are

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treated as paramount to the will of the par ties. In a word, the domain of the law of torts, so far as rights are concerned, lies in rights paramount, and hence tort, as a ground of action, consists in the breach of rights paramount, that is, of rights estab lished by municipal law, as distinguished from rights created only by consent between two or more persons.

§ 2. LEGAL PRIVILEGE OR PERMISSIVE LEGAL RIGHT Within the domain of torts fall also those legal rights of the second order already spoken of as privilege in the sense of mere permission; the rules for determining which are subject of the present section. Priv ilege may indeed include the higher legal right, as where it consists in special powers granted by law, of which riparian water privileges would be an example, or where it is absolute, of which exemption of a mem ber of the Legislature from liability for words spoken in that capacity would be an example. In that sense it has been dis posed of. But the term is also used, as we have already indicated, of mere permissions. In this sense it falls short of full legal right; towards the person granting it it is now purely negative in character; it does not furnish ground for an action against him. It imports protection, but protection only from an action by the party who has con ferred it. Towards third persons it may indeed confer a right of action, as in the case of a license to enter land, where entry is interrupted by a stranger,1 or in the case of a gratuity, such as gratuitous entertain ment.2 Indeed, this matter of the lower order of right rises in gradation until it reaches and culminates in the legal rights of a disseisor, available in many ways against all the world except the one person who has been disseised. But we are not now concerned 1 Barnstable v. Thacher, 3 Met. 239. J Williams v. Hill, 19 Wend. 305; Moore v. Meagher, i Taunt. 39.