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Rh the Park, by the Wissahickon, to Chestnut Hill, it was looked upon as no less unladylike on our part than the new generation's cigarette and demand for the vote on theirs. But if I did my duty, I was sadly bored by it. Often I turned homeward with that cruel aching of the heart the young know so well, longing for something, anything, to happen on the way to interrupt, to disorganize, to shatter to pieces the daily routine of life. I still shrink from the sharp pain of those cool, splendid October days when Philadelphia was aglow and quiveringly alive, and with every breath of the brisk air came the desire to be up and away and doing—but away where in Philadelphia?—doing what in Philadelphia? I still shrink from the sharp pain of the first langourous days of spring when every Philadelphia back-yard was full of perfume and every Philadelphia street a golden green avenue leading direct to happiness could I have found the way along its bewildering straightness.

If youth only knew! There was everywhere to go, everything to do, every happiness to claim. Philadelphia waited, the Promised Land of action and romance, had I not been hide-bound by Philadelphia conventions, absorbed in Philadelphia ideals, disdaining all others with the intolerance of my years. According to these conventions and ideals, there was but one adventure for the Philadelphia girl who had finished her education and arrived at the appointed age—the social adventure of coming out.


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 (AND OTHER SHORT ESSAYS).

BY

London:

MACMILLAN AND CO.

1877.

[All Rights reserved.]

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Rh possess, and I learned, too, of the unbelievable manner in which Iod, the Source, is worshipped beyond the outer galaxies, I plumbed the blackest pits of hell and came back—laughing. I was one with the rest of those dark warders, and I joined them in the saturnalia of horror until the scarred man spoke to us again.

"Our time grows short," he said, his scarred and bearded white face like a gargoyle's in the half-light. "We must depart soon. But you are a true Kralitz, Franz, and we shall meet again, and feast again, and make merry for longer than you think. One last pledge!"

I gave it to him. "To the House of Kralitz! May it never fall!"

And with an exultant shout we drained the pungent dregs of the liquor.

Then a strange lassitude fell upon me. With the others I turned my back on the cavern and the shapes that pranced and bellowed and crawled there, and I went up through the carved stone portal. We filed up the stairs, up and up, endlessly, until at last we emerged through the gaping hole in the stone flags and proceeded, a dark, silent company, back through those interminable corridors. The surroundings began to grow strangely familiar, and suddenly I recognized them.

We were in the great burial vaults below the castle, where the Barons Kralitz were ceremoniously entombed. Each Baron had been placed in his stone casket in his separate chamber, and each chamber lay, like beads on a necklace, adjacent to the next, so that we proceeded from the farthermost tombs of the early Barons Kralitz toward the unoccupied vaults. By immemorial custom, each tomb lay bare, an empty mausoleum, until the time had come for its use, when the great stone coffin, with the memorial inscription carved upon it, would be carried to its place. It was fitting, indeed, for the secret of Kralitz to be hidden here.

Abruptly I realized that I was alone, save for the bearded man with the disfiguring scar. The others had vanished, and, deep in my thoughts, I had not missed them. My companion stretched out his black-swathed arm and halted my progress, and I turned to him questioningly. He said in his sonorous voice, "I must leave you now. I must go back to my own place." And he pointed to the way whence we had come.

I nodded, for I had already recognized my companions for what they were. I knew that each Baron Kralitz had been laid in his tomb, only to arise as a monstrous thing neither dead nor alive, to descend into the cavern below and take part in the evil saturnalia. I realized, too, that with the approach of dawn they had returned to their stone coffins, to lie in a death-like trance until the setting sun should bring brief liberation. My own occult studies had enabled me to recognize these dreadful manifestations.

I bowed to my companion and would have proceeded on my way to the upper parts of the castle, but he barred my path. He shook his head slowly, his scar hideous in the phosphorescent gloom.

I said, "May I not go yet?"

He stared at me with tortured, smoldering eyes that had looked into hell itself, and he pointed to what lay beside me, and in a flash of nightmare realization I knew the secret of the curse of Kralitz. There came to me the knowledge that made my brain a frightful thing in which shapes of darkness would ever swirl and scream; the dreadful comprehension of when each Baron Kralitz was initiated into the brotherhood of blood. I knew—I knew—that no coffin had ever been placed unoccupied in the tombs, and I read upon the stone sarcophagus at my feet the inscription that made my doom known to me—my own name, "Franz, twenty-first Baron Kralitz."


text: Our Philadelphia/Chapter 5

title: Our Philadelphia/Chapter 5


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Rh are reached towards which all these lines of vehicles are tending—be it Epping, or Richmond, or Greenwich, or Hampstead—every place seems swarming with an undisciplined, but heartily happy, crowd. The swings, the roundabouts, the donkeys, the stalls, are beset by dozens or even hundreds of pleasure-seekers, gay and happy, though they are not always the gentlest or most refined. Look at the happy family groups—father, and mother, and children, with their picnic dinners neatly tied up in handkerchiefs; watch the joy of eager children leaning out of vans to purchase for a halfpenny the wonderful pink paper streamers which they will stick proudly in their caps; see the merry little things running untiringly up and down the bank of sand or grass; notice the affectionate father bringing out the pot of ale to the wife as she sits comfortably tucked up in shawls in the little cart, or treating the children to sweetmeats; sympathise in the hearty energy of the great


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F ALL the sciences which have puzzled the sons of men, none had such an attraction for the learned Professor von Baumgarten as those which relate to psychology and the ill-defined relations between mind and matter. A celebrated anatomist, a profound chemist, and one of the first physiologists in Europe, it was a relief for him to turn from these subjects and bring his varied knowledge to bear upon the study of the soul and the mysterious relationship of spirits. At first, when as a young man he began to dip into the secrets of mesmerism, his mind seemed to be wandering in a strange land where all was chaos and darkness, save that here and there some great unexplainable and disconnected fact loomed out in front of him. As the years passed, however, and as the worthy professor's stock of knowledge increased, for knowledge begets knowledge as money bears interest, much which had seemed strange and unaccountable began to take another shape in his eyes. New trains of reasoning became familiar to him, and he perceived connecting links where all had been incomprehensible and startling. By experiments which extended over twenty years, he obtained a basis of facts upon which it was his ambition to build up a new exact science which should embrace mesmerism, spiritualism, and all cognate subjects. In this he was much helped by his intimate knowledge of the more intricate parts of animal physiology which treat of nerve currents and the working of the brain; for Alexis von Baumgarten was regius professor of physiology at the University of Keinplatz, and had all the resources of the laboratory to aid him in his profound researches.

Professor von Baumgarten was tall and thin, with a hatchet-face and steel-gray eyes, which were singularly bright and penetrating. Much thought had furrowed his forehead and contracted his heavy eyebrows, so that he appeared to wear "a perpetual frown, which often misled people as to his character; for though astute he was tender-hearted. He 366


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 VI.

OPEN SPACES

that is strictly practical that I have to say to-day could be summed up in a very few words. I have no changes in the law to suggest. I have not thought it well to relate the past history of inclosures, nor even to prepare for you statistics, neither have I touched on recent legislation respecting commons. I have had but one end in view in writing this paper the laying out and opening small central spaces as public gardens.

I have to interest you in accomplishing the object. "There is little to see, and little to say; it is only to do it," as was once said by a hard worker. I cannot transport you


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 rough lads who have walked miles, as their dusty boots well show; their round, honest faces have beamed with rough mirth at every joke that has come in their way all day; they have rejoiced more in the clamber to obtain the great branches of may than even in the proud possession of them, though they are carrying them home in triumph. To all these the day brings unmixed good.

Now, have you ever paused to think what Londoners would do without this holiday, or what it would be without these open spaces? Cooped up for many weeks in close rooms, in narrow streets, compelled on their holiday to travel for miles in a crowded stream, first between houses, and then between dusty high hedges, suddenly they expand into free uncrowded space under spreading trees, or on to the wide Common from which blue distance is visible; the eye, long unrefreshed with sight of growing grass, or star-like flowers, is rejoiced by them again. To us the Common


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 all to see the good sample-work which there is in some few neighbourhoods in London. I can, therefore, only ask you to let me describe in some detail the need of these gardens, then what has been, and what, it seems to me, should be, done, with various kinds of small spaces. This paper contains this description and information, as to the very simple preliminary steps necessary to be taken to render some of these spaces available for public use; but though so much of it is thus necessarily descriptive, it is only on the ground of its bearing on distinct practical results that I trouble you with it.

There are two great wants in the life of the poor of our large towns, which ought to be realised more than they are—the want of space, and the want of beauty. It is true that we have begun to see that a whole family living in one room is very crowded, and we have been for some years well aware that it would be a good thing if we could


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 a Common, when he knows that by doing so he shuts out from himself and his successors for ever the possibility of inclosing it, and appropriating some part of it? Do any provisions for regulating, however excellent, avail anything when no motive exists which should prompt the lord of the manor to bring the Common under them? and, as the Bill stands, it cannot be so brought without his consent.

Secondly, the Bill provides that urban sanitary authorities can purchase rights which will enable them to keep open any suburban Common, or may accept a gift of the same. But then a suburban Common is defined as one situated within six miles of the outside of a town of 5,000 inhabitants. Now, I hardly know how far out of a large town Bank-holiday excursionists go, but I know they go every year farther and farther. I am sure that a Common twelve, nay, twenty, miles off from a large town is accessible by cheap trains


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 1,000,000 acres left. The right of roving over these lands has been an immense boon to our people; it becomes at once more valued and rarer year by year. Is it impossible, I would ask lawyers and statesmen, to recognise this right as a legal one acquired by custom, and not to be taken away? Mr. Lefevre suggested this in a letter to The Times. He says:

“The right of the public to use and enjoy Commons (which they have for centuries exercised), it must be admitted, is not distinctly recognised by law, though there is a remarkable absence of adverse testimony on the subject. The law, however, most fully recognises the right of the village to its green, and allows the establishment of such right by evidence as to playing games, &c., but it has failed as


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 roughly over the facts and the rights of the case. The first placed the lord of the manor in his position as lord, giving him certain privileges, and coupling with them many responsibilities. The second gradually removed these responsibilities, and converted into a property what was at first little more than an official trust. If these considerations are beyond the scope of the law courts, they are proper for Parliament. One step has been made. It has been proved that it is not necessary to purchase Commons for the public, but that ample means of protecting them from inclosure exist. It is also obvious that the rights which constitute these means are now in practice represented by a public user of Commons for recreation. The Legislature should, I venture to think, recognise this user as a legal right.”

If the Legislature would do this, Commons all over England might be kept open, which, I venture to think, would be a great gain.


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 manage so to build that a working man could pay for two or even three rooms; it is true that we have learned that the extreme narrowness of our courts and alleys, and the tiny spaces, often only four or five feet square, called by courtesy "yards," which are to be found at the back of many of the houses filled with families of the poor, appear to us insufficient. We wish we could enlarge them, we wish that Building Acts had prevented landlords thus covering with rent-producing rooms the gardens or larger yards which once existed at the back of high houses; and we are alive to the duty of trying to obviate, as soon as may be, this want of space, to any degree to which it may yet be possible. But there is a way in which some compensation for this evil may be provided, which appears only to have begun lately to dawn upon the perception of men. I mean the provision of small open spaces, planted and made pretty, quite near the homes of the


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 They tell me also (and it certainly appears to me that both statements are evident on reading the Bill) that unless Mr. Cross consents to insert a clause forbidding all inclosures except under this Act, the passing of it will be followed by a large number of high-handed inclosures under old Acts, or without legal right. For unless the right of some independent body like the public who use the space can be recognised as having a voice in opposing illegal inclosures, what chance have the rural Commons? The agricultural labourers, often tenants-at-will of a powerful landlord, can be ejected and their rights immediately cancelled; moreover, they do not know the law, they have few to advise them, to plead their cause, or to spend money on expensive lawsuits. Mr. Lefevre says in the same letter quoted above, “I would at least ask them to declare all inclosures not authorised by Parliament to be primâ facie illegal and to remove the necessity of litigation by


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 by the rich, or the recipients of which are arbitrarily selected by them, may in many cases be blindly accepted by cottagers in lieu of Common rights. Is the influence of such doles so healthy that we should wish to see them taking the place of a Common right over a little bit of English soil? The issue at a nominal charge of orders to cut turf or furze by a lord of the manor has been known gradually to extinguish the right to do so without his leave. Is the influence of the rich and powerful so slight that we should let it be thus silently strengthened? Is the knowledge just brought so prominently before us that one quarter of the land in England is owned by only seven hundred and ten persons so satisfactory that we will stand by and see quietly absorbed those few spots which are our common birthright in the soil? It is not likely that farms or estates will diminish in size; and the yeoman class is, I suppose, passing away rapidly. With the small


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 wonder that a thoroughly cultivated country is, in most instances, so much less beloved by its people than a wild and open one. Rights of proprietorship may exist equally in both; but there is an important sense in which the open country belongs to the proprietors and to the people too. All that the heart and intellect can derive from it may be alike free to peasant and aristocrat; whereas the cultivated and strictly fenced country belongs usually, in every sense, to only the proprietor; and as it is a much simpler and more obvious matter to love one’s country as a scene of hills, and streams, and green fields, amid which nature has often been enjoyed, than as a definite locality, in which certain laws and constitutional privileges exist, it is rather to be regretted than wondered at that there should be often less true patriotism in a country of just institutions and equal laws, whose soil has been so exclusively appropriated as to leave only the dusty high-roads to


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 II.

DISTRICT VISITING

assumed throughout this paper that most district visitors feel a certain dissatisfaction both with district visiting and with systems of relief as they exist, even where such systems are best organised. Some may think that there is too much relief given, some that there is too little, others that what is given is of the wrong kind. I believe, also, some visitors feel that their spiritual influence is interfered with in different ways by the unsatisfactory character of the temporal relief. To some of them it


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 and schools, and thousands of souls to see to, have inherited systems of relief in their parishes which they hardly have time to reform, and the gigantic pressure of daily duty perpetuates many unwise plans, though many, I am well aware, are being abolished. How far the best still falls below what they would like to see let the clergy themselves say. I believe most of them, if asked, would reply: "I have tried honestly to make my system of relief as satisfactory as I could, but it is far from my ideal." And this is so from another cause. You can never make a system of relief good without perfect administration, far-sighted watchfulness in each individual case; and this is specially true in an age in which bad systems of relief have trained the people to improvidence. Given your entirely enlightened clergyman, he cannot in a large London parish do much more than see to his people when the crisis of distress has come. He cannot watch over them before it comes, yet it is then that distress is preventable.


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 people, which might be used by them in common as sitting-rooms in summer. Even in England there are a good many days when at some hours sitting out of doors is refreshing, and when very hot days do come, it seems almost a necessity.

I fancy very few of you know what a narrow court near Drury Lane or Clerkenwell is on a sultry August evening. The stifling heat, the dust lying thick everywhere, the smell of everything in the dirty rooms, the baking, dry glare of the sun on the west window of the low attic, just under the roof, making it seem intolerable—like an oven. The father of the family which lives there, you may be pretty sure, is round the corner at the public-house, trying to quench his thirst with liquor which only increases it; the mother is either lolling out of the window, screaming to the fighting women below, in the court, or sitting, dirty and dishevelled, her elbow on her knee, her chin on her hand, on the dusty,


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HE tragic death of Robert E. Howard has called forth a chorus of praise from discerning critics who have appreciated the genuine literary value of his work. H. P. Lovecraft, one of the acknowledged masters of weird fiction, whose keenly analytical mind has started many young writers on literary careers, makes the following comment on Howard's work: "Howard's death forms weird fiction's worst blow since the passing of good old Canevin [ Henry S. Whitehead ] in 1932. Scarcely anybody else in the pulp field had quite the driving zest and spontaneity of Robert E. Howard. He put himself into everything he wrote—and even when he made outward concessions to pulp standards he had a wholly unique inner force and sincerity which broke through the surface and placed the stamp of his personality on the ultimate product. How he could surround primal megalithic cities with an aura of seon-old fear and necromancy! And his recent Black Canaan (WT's best story in the last three or so issues) is likewise magnificent in a more realistic way—reflecting a genuine regional background and giving a clutchingly powerful picture of the horror that stalks through the moss-hung, shadowcursed, serpent-ridden swamps of the farther South. Others' efforts seem pallid by contrast. Weird fiction certainly has occasion to mourn."

To which E Hoffmann Price, the only author who knew Howard personally, adds: "I know of few people whose sudden death would be such a savage luck on the chin. Lovecraft says it is the saddest blow to writers since the death of Henry S. Whitehead—and I answer, saying, 'Be damned to writing—it's a lot worse blow to anyone who knew Bob and his parents.' Bob Howard was as complex and likable a character as one would meet in many a long day's march. There is going to be much wailing among the fantasy fans, and just as much among those who read only Howard's vivid action stories in other books—but the heaviest of it is coming from those who met him in his native territory."

Howard wrote his own epitaph shortly before his death, when he typed the following couplet, the second line of which is taken from the well-known poem by Ernest Dowson:

Irvin T. Gould, of Philadelphia, writes: "It may be rather late to mention it, but your May issue of is the best collection of stories I have ever seen between your front and back covers. Child of the Winds and The Room of Shadows top a splendid collection of weird tales Glad to hear that Robert E. Howard is coming to the fore with another Conan story. I was afraid the rascally old barbarian was going to sink down in slothful ease upon the Aquilonian throne and not furnish R. E. H. with any more weird adventure material, but I guess you can't keep that wild Cimmerian blood quiet; so more power to him. I can't take enough space to give bouquets to all that rate it, so I have just mentioned those that have particularly impressed me. Bring on that Conan story. I'm all agog. Couldn't you prevail upon Mr. Howard to furnish us a map of all those strange lands that have felt the swish of that Cimmerian sword? Or would that be in keeping with a weird tale? I leave it to you." [Mr. Howard prepared a map showing the strange lands visited by Conan, when he wrote that superb weird 378


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 or forest looks indeed crowded with people, but to them the feeling is one of sufficient space, free air, green grass, and colour, with a life without which they might think the place dull. Every atom of open space you have left to these people is needed; take care you lose none of it; it is becoming yearly of more vital importance to save or increase it.

There is now a Bill for regulating inclosure before the House of Commons. Mr. Cross has said what he trusts will be its effect if it becomes law; but those who have been watching the history of various inclosures, and the trials respecting special Commons, are not so hopeful as Mr. Cross is as to the effect this Bill would have. It makes indeed good provisions for regulating Commons to be kept open for the public when a scheme for regulation is applied for. But the adoption of such a scheme depends in large part on the lord of the manor. Will he in nine cases out of ten ever even apply for a scheme for


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 to hundreds of excursionists all the summer, to whom it is an inestimable boon. Again, is the privilege of space, and light, and air, and beauty not to be considered for the small shopkeeper, for the hard-working clerk, who will probably never own a square yard of English land, but who cares to take his wife and children into the country for a fortnight in the summer? Do you not know numbers of neighbourhoods where woods, and Commons, and fields used to be open to pedestrians, and now they must walk, even in the country, on straight roads between hedges? The more that fields and woods are closed, the more does every atom of Common land, everywhere, all over England, become of importance to the people of every class, except that which owns its own parks and woods. “On the lowest computation,” says the Report of the Commons Preservation Society, “5,000,000 acres of Common land have been inclosed since Queen Anne’s reign; now there are but


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 yet to recognise the analogy between the great town and its Common, and the village and its green, however complete in fact that analogy may be. But some of these rights of Common, which are now so prized as a means of keeping Commons open, had, if legal theory is correct, their origin centuries ago in custom. For long they had no legal existence, but the courts of law at last learned to recognise custom as conferring rights. The custom has altered in kind; in lieu of cattle, sheep, and pigs turned out to pasture on the Commons, human beings have taken their place, and wear down the turf instead of eating it. I can see no reason why the law, or, if the courts are too slow to move, the Legislature, should not recognise this transfer and legalise this custom. Again, it is probable that Commons belonged originally much more to the inhabitants of a district than to the lord. Feudal theory and its subsequent development—English Real Property Law—have ridden rather


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 Hitherto the right to keep Commons open has been maintained, even in the neighbourhood of towns, by legal questions affecting rights of pasturage, of cutting turf, or carting gravel. This is all very well if it secures the object, but it is on the large ground of public policy, for the sake of the health and enjoyment of the people, that the conscience of the nation supports the attempt to keep them open; it cares little for the defence of obsolete and often nearly valueless customs, and it would be very well if the right acquired by use could be recognised by law, and the defence put at once on its real grounds.

I have referred to the opinion expressed by lawyers and members of Parliament that the opportunity of applying for schemes for regulation provided by the Bill now before the House will not be used at all largely, owing to the necessity of the consent of those owning two-thirds value of the Common, and of the veto possessed by the lord of the manor.


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 low door-step, side by side with a drunken woman who comments with foul oaths on all who pass. The children, how they swarm! The ground seems alive with them, from the neglected youngest crawling on the hot stones, clawing among the shavings, and potato-peelings, and cabbage-leaves strewn about, to the big boy and girl "larking" in vulgarest play by the corner. The sun does not penetrate with any purifying beams to the lower stories of the houses, but beats on their roofs, heating them like ovens. The close staircase is sultry, the dust-bins reek, the drains smell, all the dirty bedding smells, the people's clothes smell. The wild cries of the thirsty, heated, irritated crowd driven to drink, the quarrelling children's voices echo under the low and narrow archway by which you enter the court. Everyone seems in everyone else's way. You begin to wonder whether a human being, man, woman, or child, is in very deed in any sense precious, either to God who made them, or to their


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 persons actually themselves commoners, by authorising any public body, or public-spirited individual, to interfere in the case of any such inclosures, and put the lord to strict proof of his right.”

And do not let us be too ready to see the question dealt with as a matter of mere money compensation. It is much to be feared lest the short-sighted cupidity of one generation of rural commoners may lose a great possession for future times. This danger is imminent because we are all so accustomed to treat money value as if it were the only real value! Can we wonder if the eyes of poor men are often fixed rather on the immediate money value to themselves than on the effect of changes for their descendants? Should we stand by, we who ought to see farther, and let them part with what ought to be a possession to the many in the future? A few coals at Christmas, which rapidly come to be looked upon as a charity graciously accorded


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Rh, is there to pass away from our people the sense that they have any share in the soil of their native England? I think the sense of owning some spaces of it in common may be healthier for them than even the possession of small bits by individuals, and certainly it now seems more feasible. Lowell tells us that what is free to all is the best of all possessions:

Hugh Miller, too, points out how intimately the right to roam over the land is connected with the love of it, and hence with patriotism. He says, speaking of his first visit to Edinburgh: “I threw myself, as usual, for compensatory pleasures, on my evening walks, but found the inclosed state of the district, and the fence of a rigorously-administered trespass-law, serious drawbacks; and ceased to


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 its people, than in wild open countries, in which the popular mind and affections are left free to embrace the soil, but whose institutions are partial and defective.” So writes at least one man of the people; and whether we estimate the relative value of just laws or familiar and beloved scenes quite as he does, or not, I think we must all feel there is deep truth in what he says.

Let us then press Government, while there is still time, that no bit of the small portion of uninclosed ground, which is the common inheritance of us all as English men and women, shall be henceforth inclosed, except under this Bill; which simply means that each scheme shall be submitted to a Committee of the House, and considered on its merits.

Surely this is a very reasonable request. Do not let us be satisfied with less. Do not let us deceive ourselves as to the result of this Bill if it pass unamended.


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 seems incongruous to carry tracts in one hand and coal-tickets in another; to others, that carrying either, still more carrying both, as a matter of course, shuts them off from true intercourse with the best kind of working men and women; others, again, feel that carrying tracts without coal-tickets when the grate is empty seems a little like want of sympathy; and others that carrying coal-tickets without tracts is treating the poor as if they were only concerned with the outside things of life.

However earnestly our clergy have desired to solve this problem of how to deal wisely with the temporal condition of their flocks, it remains a problem still. However tenderly our visitors have mourned over it, as it affects hundreds of individuals, it remains mournful still. What prospect is there of its being vigorously studied with a view to solution, or even to radical improvement, by those who have power to effect improvement? Busy, overworked clergymen, with services and sermons, and churches


text:
Enabling Act of 1910

Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That the qualified electors of the Territory of New Mexico are hereby authorized to vote for and choose delegates to form a constitutional convention for said territory for the purpose of framing a constitution for the proposed State of New Mexico.

title: Enabling Act of 1910


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Rh novel, The Hour of the Dragon.—

Corwin Stickney, Jr., of Belleville, New Jersey, writes: "The July issue is excellent. I rank it second only to the April issue when rating the seven published so far this year. Lost Paradise and Necromancy in Naat are in a virtual tie for this month's honors. Moore is practically unbeatable, while Clark Ashton Smith's work is always of the finest quality. Since each of these two stories is so different from the other, both in theme and in the style in which it was written, I do not undertake to evaluate one above the other. Let it suffice to say that I enjoyed both hugely, and would appreciate nothing more than a story by each of them in each issue. Ronal Kayser constructed a vivid, stirring story in The Unborn. Seldom have I read one more fascinating. Edmond Hamilton disappointed me with When the World Slept. It was entirely too obvious; I hadn't read two pages before I had guessed the story's outcome. I cannot at all understand how this yarn can possibly be called weird. It might pass—on a dark night—as science-fiction. But weird fiction—never! The other tales are good, especially Loot of the Vampire and The Return of Sarah Purcell. I haven't yet read the new serial or the reprint Peculiar thing: three of the victims in this month's stories—in The Return of Sarah Purcell, The Unborn, and Kharu Knows All, to be exact—'got theirs' by way of the falling method—either by jumping out a window or by falling down a flight of stairs, as in the case of Emma in The Return of Sarah Purcell. I wonder how many discerning readers will notice that Tim Cirewe (in Kharu Knows All) chose Kharu as his new name because it and his real name, Carewe, are phonetically alike."

Gertrude Hemken, of Chicago, contributes the following comments: "Now I'm gonna unload something from my mind that's been rankling me for yars 'n' yars. So often in stories one runs across French phrases, and it is taken for granted the reader knows what they mean, so no explanation is offered. All well and good. However, when one uses a sprinkling of other foreign phrases, unless the author offers translations immediately


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question of the appropriation of the common land of England is one which is of great importance now, and which will be of increasing importance as time goes on. The matter is not simply one of providing a public park or common in the near neighbourhood of cities which are now large and rapidly increasing, nor of securing a cricket or recreation ground and an acre or two of cottage gardens to a few villagers. The question before the country—and it is well we should realise its magnitude before important decisions are made—is whether, consistently with all private rights, there is still any land in


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Proclamation 1175

Whereas, the Congress of the United States did by an act approved on the twentieth day of June, one thousand nine hundred and ten, authorize the people of the territory of New Mexico to form a constitution and state government, and provide for the admission of such state into the union on an equal footing with the original states upon certain conditions in said act specified:

And Whereas, said people did adopt a constitution and ask admission into the union:

And Whereas, the Congress of the United States did pass a joint resolution, which was approved on the twenty-first day of August, one thousand nine hundred and eleven, for the admission of the state of New Mexico into the union, which resolution required that the lectors of New Mexico should vote upon an amendment of their state constitution, which was proposed and set forth at length in said resolution of Congress, as a condition precedent to the admission of said state, and that they should so vote at the same time that the first general election as provided for in the said constitution should be held:

And Whereas, it appears from information laid before me that said first general state election was held on the seventh day of November, one thousand nine hundred and eleven, and that the returns of said election upon said amendment were made and canvassed as in Section Five of said resolution of congress provided:

And Whereas, the governor of New Mexico has certified to me the result of said election upon said amendment and of the said general election:

And Whereas, the conditions imposed by the said act of Congress approved on the twentieth day of June, one thousand nine hundred and ten, and by the said joint resolution of congress have been fully complied with:

Now, Therefore, I, William Howard Taft, President of the United States of America, do, in accordance with the provisions of the act of Congress and the joint resolution of Congress herein named, declare and proclaim the fact that the fundamental conditions imposed by congress on the state of New Mexico to entitle that state to admission have been ratified and accepted, and that the admission of the state into the union on an equal footing with the other states is now complete.

In Testimony Whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington this sixth day of January, in the year of our Lord one thousand nine hundred and twelve and of the independence of the United States of America the one hundred and thirty-sixth.

WILLIAM HOWARD TAFT

By the President:

PC Knox Secretary of State

title: Proclamation 1175


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pity for the poor has been a growing characteristic of this age; a better sign of it still is the increased sense of duty to them, not only as poor men, but as men. There needs, however, it appears to me, something still before our charity shall be effectual for good. The feeling is there, the conscience is there, but there is wanting the wise thought and the resolute, because educated, will.

Our charity, if by the word we mean our loving-kindness, has been good in itself, but if we mean by the word, alms-giving, can we


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58 X.

RECIPROCITY.

have just seen that whatever increases the expense of conveying commodities from one country to another—in other words, whatever renders transport more onerous—acts in the same way as a protective duty; or if you prefer to put it in another shape, that a protective duty acts in the same way as more onerous transport.

A tariff, then, may be regarded in the same light as a marsh, a rut, an obstruction, a steep declivity—in a word, it is an obstacle, the effect of which is to augment the difference between the price which the producer of a commodity receives, and the price which the consumer pays for it. In the same way, it is undoubtedly true that marshes and quagmires are to be regarded in the same light as protective tariffs.

There are people (few in number, it is true, but there are such people) who begin to understand that obstacles are not less obstacles because they are artificial, and that our mercantile prospects have more to gain from liberty than from protection, and exactly for the same reason which makes a canal more favourable to traffic than a steep, roundabout, and inconvenient road.

But they maintain that this liberty must be reciprocal. If we remove the barriers we have erected against the admission of Spanish goods, for example, Spain must remove the barriers she has erected against the admission of ours. They are, therefore, the advocates of commercial treaties, on the basis of exact reciprocity, concession for concession; let us make the sacrifice of buying, say they, to obtain the advantage of selling.

People who reason in this way, I am sorry to say, are, whether they know it or not, protectionists in principle; only, they are a little more inconsistent than pure protectionists, as the latter are more inconsistent than absolute prohibitionists.

The following apologue will demonstrate this:—

There were, no matter where, two towns called Stulta and

title: Page:Economic Sophisms.djvu/70


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Legal Rights

LEGAL RIGHTS. ROSCOE POUND.

T HAS been a common complaint on the part of analytical jurists that the philosophical jurist is wont to import ethical ideas into legal science which, in that environment, breed far-reaching confusions. How far these complaints are well grounded, and why, has been considered in another place. In the present connection it is more germane to point out that importation of a confused juristic conception and ambiguous juristic term into ethical science has bred quite as many far-reaching confusions in that domain. Law held the hegemony in the field of learning when ethical and political and social science were formative as certainly as the natural sciences dominate our thinking to-day. As to-day we resort to figures of speech drawn from organic creation and summon biological analogies to our aid in all fundamental difficulties, so men formerly resorted to juristic figures of speech and sought for legal analogies. No legal institution seemed more apt for the purpose than the legal right. But the word “” is a blind guide in its own proper field. Outside of that field, it has made for loose thinking and has actively stimulated misunderstanding and confusion at least since the seventeenth century. It is task enough to deal with this much enduring word of many turns upon its own ground. Let us see, therefore, what it means when, supposedly, it is used strictly.

As a noun, the word “right” is used in the law books in at least five senses. (1) Frequently it is used in the sense of interest—a “subjectively perceived relation derived from necessity, between the person feeling the necessity and an object; that is, the object for which the necessity exists and is felt and through which, by use or consumption, actually or probably, it will or may be satisfied in whole or in part.” So used, it may mean an interest which one thinks should be recognized and secured by law, as in most discussions of natural rights, or an interest as recognized and delimited for the purpose of securing it through the legal order.

(2) Again the term “right” is used to designate the chief means which the law adopts in order to secure interests, namely, a recognition in persons, or a conferring upon persons, of certain capacities of influencing the action of others. The courts give effect to these capacities of influence by protecting those in whom they are recognized or upon whom they are conferred in the exercise of them, or by enforcing them specifically against those whom the law holds subject to such influence, or by vindicating them by some form of redress when they are interfered with. No doubt this sense has a certain relation to the foregoing. It is possible to define each conception in terms of “claim.” The general claim or demand in the first use of the word “right” has now become a recognized claim to acts or forbearances by another or by all others, in order to make the interest effective. Putting it in this way, the claim may be one recognized and potentially effective legally, through the force of politically-organized society exerted to maintain the interest as the law has delimited it, or it may be one recognized and made effective morally, to maintain the interest as delimited by the moral sense of the community. I shall endeavor to show presently how this definition of “right” in the second sense in terms of “claim” grew out of Roman legal procedure, and hence to show why Anglo-American jurists are warranted in speaking instead of a capacity of influencing others which is recognized or conferred in order to secure an interest. But in either view two points are to be noted. In the first place, as Merkel puts it, the idea in the second use of “right” differs from that in the first use as the fortification from the protected land. Secondly, rights, in the second sense of the term, are clearly set off from those legal institutions which are called “rights” in the other senses in which the word is used, in that a right in this sense always has as a correlative a legal duty. It is a capacity of exacting or claim to exact some act or forbearance, with a corresponding legal subjecting of all persons or of some particular person to that exaction; a legal treatment of them as bound to accede thereto.

At this point a digression must be made. The term “duty” is used by jurists in more than one sense. (a) It is used to denote the correlative of a legal right in the sense of that term now under consideration. (b) It is used also to denote what Austin calls “absolute duties,” imposed upon individuals to secure social interests and vindicated, not by the judicial assertion of a correlative private right (sense No. 2), but by a criminal prosecution intended to deter others, to meet the social demand for punishment of the offender and to reclaim the offender from his anti-social tendencies. We have been wont to speak of a “right” of the state in this connection. But that “right” is really dragged in by the heels to save the proposition that every duty must have a correlative right. Where the state as a corporation has interests of substance—e.g., holds property for public purposes, takes bonds for the faithful conduct of its officers, has liens on property for taxes, loans its funds to depositary private banks—here it has private rights (sense No. 2) given by law to secure these public interests. No such rights are correlative to a duty not to be cruel to animals. The interest secured in this case is a general social interest in public morals, and the legal system secures it, not by conferring any right (in sense No. 2) but by imposing an absolute duty of humanity to animals, enforced by penal actions or criminal prosecutions, (c) The word “duty” is also used, for another legal institution of great importance, namely, a legal situation where, as a consequence of his calling or as a consequence of a course of conduct which does not measure up to the standard imposed by the law in order to maintain the social interest in the general security, the individual is subjected to a possibility of being under an obligation of action towards someone, without voluntarily assuming it or of being held to make reparation to someone, if injury results, where, if none results, unless a prosecution will lie to secure the social interest, no legal consequences will follow.

Summing up this second use of the term “right,” we may say that so used it signifies one of the legal institutions whereby “rights” in the first sense are secured, and that it is distinguished from the other legal institutions which secure “rights” in the first sense in that there is always a correlative legal duty.

(3) Still another sense of “right” is a capacity of creating, divesting, or altering “rights” in the second sense, and so of creating or altering duties. Rights in this sense, or powers, as we are now coming to call them, like “rights” in the second sense, are legal institutions devised to give effect to “rights” in the first sense. In order to secure certain individual interests, the law confers directly or recognizes, as the case may be, certain capacities of altering the existing legal situation. Examples of powers conferred by the law directly are the ius disponendi of an owner, the power of making a will, the power (in Anglo-American law) to break a contract and substitute a duty of paying damages for the pre-existing duty of performing the promise, the power to create a new title by sale in market overt, the power of the assignee (at common law) to sue in the name of the assignor, the power of a grantor in an unrecorded conveyance (under American recording acts) to convey to a bona fide purchaser what he no longer has to give, so that if the purchaser records he will obtain a new title to the estate which the grantor appeared to have and purported to dispose of. Examples of powers conferred by one person upon another and recognized by law, are powers of appointment of estates in the law of real property (i.e., powers given by a testator or settlor to some person who does not own an interest in property, to determine upon whom that interest shall devolve, as in a gift to John Doe for life, remainder to such of Doe’s nephews as he shall appoint by deed or will); the power of an agent to bind his principal, conferred by appointing the agent; directions to a trustee to make some disposition which does not involve a beneficial interest in any human being, so that the trustee, although no one can compel him to make such disposition, may do so with impunity by virtue of the power, if he chooses.

An example of the need for discrimination in the use of the term “right” is afforded in the law of agency. Agency is a relation growing out of entrusting a person with a power of representation. The principal confers on the agent and the law recognizes a power of binding the principal by acts within the scope of the agent’s authority. This is recognized by law in order to secure the principal’s individual interests. But the law also, against the principal’s individual interest, confers directly upon all agents a certain power of binding their principals (as between the principal and third persons) by acts within the apparent scope of their authority. That is, an agent is given a power of creating rights (sense No. 2) in others against his principal and of creating corresponding duties in his principal, in order to give effect to the social interest in the security of transactions and the free course of trade. It is wrong for the agent to exercise this power. We say that he “has no right to do it” as against his principal, and is liable to his principal if he does. Still he may do so and in that event the principal will be bound. This is as much a “right” as the so-called “right to break a contract of personal service,” where specific performance cannot be coerced—and no more.

Again, whereas a right in the second sense has a legal duty as its correlative, there is no significant legal institution correlative to a power. At this point a second digression becomes expedient.

A useful method in getting at some of the conceptions which have been confused and are still confused too often under the term “right” is to work out the correlative and the opposite respectively of each idea. Salmond was the first to employ this method, but it has been carried out thoroughly and tested with reference to a wealth of judicial material by Professor Hohfeld in the paper heretofore cited. In the case of a right in the second sense above set forth, he points out that the opposite is “no right” and the correlative “duty.” In the case of a right in the fourth sense, to be discussed presently, he points out that the opposite is “duty” and the correlative is “no right.” But in the case of a right in the third sense, or a power, as it is better to call it, this method gives us no positive result. It does no more than confirm the conclusion, reached on other grounds, that we have here an institution significantly different from rights in the second or the fourth sense and yet, like them, a means of securing rights in the first sense. Professor Hohfeld has, indeed, ingeniously worked out an opposite, which he calls “disability,” and a correlative, which he calls “liability.” But these conceptions are quite without independent jural significance, and each name is available and in use for other and important legal conceptions. The opposite of power—of the capacity of creating legal consequences, or, as Gareis puts it, of altering the sphere of rights or the jural relations of persons—is the absence or want of capacity to create such consequences. This may, it is true, be involved in a wider incapacity or disability. It may be that the natural entity in question is not a legal entity, as formerly in the case of a slave. Or it may be that a legal entity, with capacity for rights in the second sense, is subject to a total or partial incapacity for legal transactions, and so may not exercise powers that involve such acts. Yet there are cases where one who labors under a general incapacity for legal transactions may have a power, notwithstanding his general disability, as in the case of an infant agent. Again, it may be that there is a mere absence of capacity to alter the legal situation because the situation is one which may only be altered by virtue of a power conferred voluntarily by some person entitled and no such power has been given. Here again the so-called disability is quite without jural significance. One may admit, it is true, that in each case there is an inability to create a certain type of legal consequences. But this is quite different from the condition of general want of capacity for legally effective action which goes by the name of disability and plays so important a role in the law of persons. So also with respect to the correlative. Professor Hohfeld calls this by the name of “liability,” that is a situation where one is subject to have a relation in which he is interested controlled by another. Thus, one who has appointed an agent may find himself bound by what the latter has done. A promisee (at common law) may find his claim to performance changed into a cause of action for damages by a breach of the contract. An offeror may find himself bound by contract through acceptance of his offer. An offeree may find his power of acceptance cut off by revocation. The owner of a stolen chattel (in England) may find himself under a duty of respecting the control of a purchaser in market overt, and may find his claim against the whole world cut off. The grantee in an unrecorded deed may find his legal relation to the property terminated in an instant by prior record of a conveyance to a bona fide purchaser. But this subjection to the operation of a power is not a jural conception of any significance. The significant conception is that already considered in connection with the third sense of the term “duty.” This does not detract from the great merit of Professor Hohfeld’s discussion of the idea of a legal power. But it requires us to emphasize the distinction between a right in the second sense, with the significant juristic conception of legal duty as its correlative, and a right in the third sense, or a power, where there is no correlative institution which plays any part in the legal system.

(4) Yet another use of the term “right” is to signify a condition of legal immunity from liability for what otherwise would be a breach of duty. Sometimes, as in the case of self-defense, there may be an absence of legal restriction upon exercise of one’s natural powers—a negative conception for which the English books have used the term “liberty.” But this “liberty” seems to be merely a negative way of looking at a positive facultas agendi, which, as a matter of course, may be exercised as an exercise of one’s personality, except as the law may limit it in order to secure some other interest. The more important legal institution is a means of securing interests (usually but not always, upon a balancing of conflicting interests) by positive exception of a situation from the operation of the ordinary legal rule. It seems convenient to use the term “privilege” for this conception. Using the term in this way, privileges may be conferred directly by the law because of some social or public interest which may be maintained best by exemption of certain persons or certain classes of acts or acts on certain occasions from the operation of general rules of law. For example, what would ordinarily be actionable as a libel because of its effect upon the reputation of the subject of the writing may be privileged and hence involve no liability when written in honest criticism of the official acts of a public officer, since the public interest in free criticism in such a case outweighs the individual interest. Again, a communication which would ordinarily be a wrong because defamatory, may be privileged because of a social interest in such communications, as in case of answers to inquiries by surety companies or inquiries as to the character of a servant. Again, privileges may be conferred directly by law upon a balancing of individual interests, as in case of those forms of self-redress which the law still permits. Thus recaption of chattels or distress of cattle damage feasant is allowed upon a balance of interests in certain cases to secure the interests of substance of an owner whose property rights are invaded, because in those cases the ordinary rules do not adequately secure them. But without any balancing of interests the law may recognize a privilege conferred by an individual in order to secure individual interests of substance, as in the case of a license.

Under the name of beneficium the conception denoted by this fourth sense of the word “right” plays an important part in Roman law. For example, co-debtors by stipulation were each liable for the whole; but if there was the beneficium diuisionis each was liable only for his share. Again, a debtor, as a general rule, was bound to answer for the debt with all his property until the debt was satisfied. But debtors in certain relations were allowed the beneficium competentiae, the privilege of answering only so far as they could do so and yet retain a competence. Here manifestly the beneficium was set up to secure a social interest in piety and good morals on a balancing of that interest with the individual interest of the creditor. While we sometimes call instances of this legal institution by the name of privilege, as in the typical cases of the privilege against self-incrimination in the law of evidence and privileged communications in the law of defamation, they are usually spoken of as “rights.” A good example of this may be seen in the so-called “right of deviation,” where the highway is impassable. Here, on a balancing of the individual interest of the owner and of the social interest in freedom of travel and communication, A, who would ordinarily be a trespasser in so doing, is permitted by law to make his way around the obstruction or the impassable spot in the highway by going over B’s land. But for the privilege (or so-called right) of deviation, B, in Windscheid’s way of putting it, can enforce a command of the legal order that A keep off. Because of the privilege, B has no right (in the second sense), no claim, such as he would ordinarily have, to the effect that A keep off, and A is not under a duty to keep off as he ordinarily would be. Thus, applying the method of correlatives and opposites, to which reference was made above, we see that this sort of so-called right has duty (in the first of the senses considered above) not for its correlative, but for its opposite, while its correlative, the mere absence of a right (in the second sense) is not a significant legal institution.

(5) Right, as a noun, is also used in a purely ethical sense of that which is just, so that, even in legal speech, we not infrequently say one has “a right” to this or that because, without any definite claim, we feel that on a balance of equities we should like to see him have it.

(6) Ius, in Latin, and its equivalents in the languages of Continental Europe, have the further ambiguity of also meaning “law” in general, compelling the German jurists to speak of “objective right” and “subjective right.” The one, that which is right looked at objectively, is a. complex conception of that which is right plus law in general as a formulation of what is right. The other, that which is right looked at from the standpoint of the individual, is a no less complex conception, or rather bundle of conceptions, which we express by the term “a right.” How many diverse legal institutions are included in that bundle is well illustrated in the conventional analysis of “the right of ownership.” The civilians tell us, and their statement is copied into the books in English, that dominium includes (1) ius possidendi, (2) ius utendi, (3) ius fruendi, (4) ius abutendi, (5) ius disponendi, and (6) ius prohibendi. What this means is not that one “right” involves six other constituent “rights.” The matter is far more complex. The interest of substance of the owner, in itself something which we think ought to be secured, is given effect by a variety of legal institutions: (1) A claim against the whole world to have possession of the thing owned, with a general correlative duty in all others; (2) a claim against the whole world to make use of the thing owned, with a correlative duty as before, coupled with an absence of restraint upon the natural powers of action of the owner, maintained by law to secure his interests of personality, so long as, confining himself to use of the thing owned, he does not compel the law to balance any other interest therewith; (3) a like complex of a claim to enjoy the thing owned with an absence of restraint upon his natural powers of action while he is enjoying the thing owned; (4) an absence of restraint of the same sort, so long as his abuse of the thing owned does not conflict with any important social interest; (5) a capacity of altering the legal situation by ‘substituting another in his place in this complex; (6) a claim to exclude all others from the thing owned, with a correlative legal duty imposed upon everyone. The use of one word for this complex and for all its constituents has made the term “right” quite useless for purposes of critical reasoning. In jurisprudence, interest, legal right, power, and privilege, are coming into use for the first four of the five meanings of “a right” set forth above and those who use juridical analogies in other fields would do well to make similar discriminations.

But, it may be asked, how did one word come to be so overworked? The answer is that the several legal institutions which we call by that word have developed gradually in relatively modern times, while the interests which those institutions secure have attracted chief attention and furnished the theory for both the agencies of security and the things secured.

Modern juristic terminology begins in the Roman law. But Roman legal terminology has its origin in the stage of strict law when remedies were the chief institution. One was given an action to obtain a certain remedy. Rights are a later generalization, even if they are logically implied in the remedy. Hence, the classical Roman books deal with rights only as it were subconsciously. The word which serves for all purposes (ius) often means the legal position of a person which gives him legal standing or makes transactions and remedies available to him, as in the expression ius Latii. Sometimes it means “power,” as in the case of ius disponendi already considered. Even in the cases that come nearest to the meaning “a right,” namely, the texts dealing with what is now called “abusive exercise of rights,” the idea is more nearly one of a natural power of action which is unrestrained within the limits of a recognized interest. So far as conscious analysis goes, rights are institutions of the maturity of law. We get little help here from the classical texts which speak from the stage of equity or natural law, in which duty, as the moral conception, receives the chief emphasis.

In the fourteenth century, the commentators began to deduce right in rem and right in personam from the Roman actio in rem and actio in personam. But as soon as this had fairly begun to raise the question of legal rights, as institutions distinct from remedies and anterior to them, a new era of equity or natural law supervened, in which emphasis was put rather on the ethical idea of duty. Accordingly the moral claim to security for interests as a moral institution, which was the occasion of duty, began to attract attention, and we get our first definitions of a right under the influence of the confusion or identification of law and morals. The formula which has had the widest currency is to be found in Grotius, who defines a right as a moral quality of a person which makes it just or right for him either to possess certain things or to do certain actions. This idea of a right as a qualitas moralis personae has persisted in American professional thinking. In the form of right as a “moral power,” it is to be found generally in the formulas of nineteenth-century philosophical jurists. A modern version is given by Salmond and in his latest book by Clark. In his earlier book, Salmond deduced rights in particular from right (i.e., what is just) in general by Bentham’s principle of utility. Thus “utility” demonstrates those “qualities of a person” which it is in accord with right that we should secure. Clark’s theory shows the influence of the social-philosophical jurists. He starts with “moral rights and duties protected and enforced by. . . ‘the common conscience of a human society.’” These, he says, are natural rights, and these, given the legal sanction of interference by the state, in addition to the natural sanction of “common disapproval of interference with that individual right or. . . a common feeling of duty to respect it,” are legal rights. Perhaps one may restate the analysis thus: (1) An interest, the claim of a human being to this or that; (2) a recognition of this interest by the common conscience of society, giving rise to a natural right,—giving a moral claim in addition to the de facto claim to be secured; (3) a recognition of this natural right by the state in actually securing it. There is much here to think about and this way of putting it may perhaps bridge the gap between interests and legal rights more to the satisfaction of many who are offended at the enumeration and weighing of interests with a view to securing as many and sacrificing as few as possible. But if one were more sure of the common conscience of society, he would have more confidence in it. Administration of justice involves a great deal as to which it is very hard to find such a common conscience and the law has continually to balance interests where the general conscience is quite helpless.

In contrast with the philosophical view that makes legal rights depend on moral rights, we have the Austinian analysis which makes legal rights depend on duties, which are imposed by commands of the state. This is a corollary of Austin’s doctrine as to the nature of law. But its significance for our purpose is in the idea of a right as a power or capacity of exacting acts or forbearances; a power or capacity conferred by the state through the duties it imposes by its commands. The state does not create the interest. But the means of securing the interest, namely, a capacity of exaction of certain conduct from others through the force of politically-organized society, is the creature of the state. In thus distinguishing the means of securing from the thing secured, Austin took a great step forward. Jhering, however, presently started a new fashion in the analysis of a right which turned attention once more to the thing secured. His working out of the idea of the interests which the legal system secures is epoch-making in jurisprudence. But in this particular connection, pointing out that the law balances interests and chooses from among them, securing some but not all, and defining those which the law secures as legal rights, retarded the distinction which had to be made eventually, between the interest, the interest legally recognized and delimited, on the one hand, and the several legal institutions by which it is made effective, on the other hand.

Later an idea of a right as a legal relation has grown up. It got currency from Ahrens, but may be found frequently in the formulas of social-philosophical jurists to-day, and has been worked out thoroughly by Wigmore.

Since Jhering the distinction between the de facto interest and the legally-recognized interest has been admitted universally. But we still have four different ideas in current definitions of a right, namely, (1) the idea of a right as a moral power or capacity in a person, (2) the idea of a right as a power or capacity given a person by law, in each case for the purpose of securing interests, (3) the idea of a right as a secured interest, and (4) the idea of a right as a relation. Looking at these more critically, they reduce to three: Right as authority or capacity, for it is desirable to use “power” in a technical sense; right as interest, and right as relation. Let us examine these more in detail.

(1) The idea of a right as an authority or capacity conferred by law goes back in some sense to Grotius. The eighteenth-century philosophical jurists thought of a right as a capacity or authority of demanding that others do or forbear which inhered in each of us on unanswerable moral grounds. Austin took this idea over and made out of it an analytical theory of a right as a capacity conferred by law. But the German writers on the Pandects, from whom, as is well known, Austin got much of his inspiration, had been doing the same thing. Hence recent English and recent German theories have not been far apart. Thus Dernburg, after a philosophical definition of a right as “the share in the advantages of life which the general will recognizes as due to a person and guarantees to him”—thus defining a right as the delimited and guaranteed interest—goes on to say that out of this delimitation and guarantee there grows a claim (). He defines this Anspruch as “the present power to influence the action or forbearance of another.” This last is not substantially different from the standard English analytical formula.

A closer examination of the term Anspruch will make the matter more clear. The ambiguity of Recht and the obvious desirability of distinguishing the interest secured from the legal right or legal power by which it is secured, have made Anspruch a very popular word in recent German juristic literature. It has an ambiguity of its own, however, as it is used in two senses: (a) A legal right in the sense of the English analytical jurists (sense No. 2 above), and (b) a cause of action, the basis of a complaint addressed to a tribunal. This use of the word for legal right as the word for cause of action seems strange to us but is perfectly natural in a Roman-law country. In our procedure we put the stress upon the wrong done because our procedure developed for the most part around or on the analogy of the action of trespass, since the king’s courts got jurisdiction through breach of the king’s peace, which was a wrong. But Roman procedure lays stress on the right infringed, not on the wrong that infringes it. It grew around the old formula of legis actio, in which the plaintiff set up the right he asserted. On this model, in the formulary procedure, the intentio (statement of plaintiff’s claim) set up his right in general terms, not the breach as with us. Hence it is natural for the German, trained in the Roman procedure, to fall into an ambiguous use of Anspruch to mean both the legal right and the cause of action based on that right. Taking Anspruch in its meaning of legal right, Dernburg’s analysis would be: (1) An interest, an extra-legal or natural institution; (2) the interest as delimited and secured by law, a compound of the natural and the civil; (3) the claim or Anspruch which is one of the means of securing the interest as delimited, a purely civil institution. This last is what the English analytical jurists call a legal right and they agree with him in speaking of it as a capacity of influencing the acts of others.

Windscheid is substantially to the same effect and is even more in accord with Austin. He distinguishes two meanings of subjektives Recht. The first is the sense in which we speak of having a right to certain conduct or a certain act or forbearance on the part of others. In such cases, he says, the legal order, in view of some situation of fact, has issued a command, enjoining conduct of a certain sort and has put this command at the service of the person in whose interest the command was issued. Where Austin speaks of the command of the state, Windscheid, a historical jurist, speaks of a command of the legal order—a command having its origin, not in the conscious will of the state, but in the subconscious development in experience of a principle of right, which has crystallized as it were in the legal order. Windscheid says that the legal order leaves it to the person entitled whether he will put into operation the means which the legal order provides against the one who infringes the command. Accordingly the will of the person entitled is controlling as regards the carrying out of the command issued by the legal order. As he puts it: “the legal order has promulgated the command in his interest; it has made its command his command; the right has become his right.” That comes to saying that in this sense of the term “a right” (the second of those above noted) a duty is correlative to a right. There is a legal right and a legal duty, but the duty is a relative one. It is relative to a person whose interest is secured by the right. Thus he limits “a right” in this proper legal sense to cases where there is a correlative duty. It will have been seen that this is very like Austin. Austin would say, the state commands; this creates duties to obey; correlative to these situations of persons who are bound to act or forbear for one’s benefit, are the capacities to exact the acts or forbearances which are legal rights. Windscheid says, the legal order recognizes and delimits interests; to secure them within the limits fixed, it imposes relative duties by its command; then it gives the individual whose interest is secured a capacity of enforcing the command, which is a legal right.

Windscheid turns next to a second meaning of subjektives Recht. There is an example of this second meaning when we say that an owner has a right to alienate the thing owned or a creditor has a right to assign the claim or an offeror has a right to revoke the offer. Here, he says, the meaning is that the will of the person entitled is controlling with respect to the coming into existence of a right in the former sense or with respect to the termination or alteration of an existing right in the former sense. This is what we are coming to call a “power,” and, indeed, German jurists have long called it by the equivalent . His first sense is what the English analytical jurists have called “legal right.” The latter, as Windscheid puts it, is authority to use legal machinery to give effect to a command of the legal order for the securing of some interest; the former is a capacity to determine whether such a command shall exist. To use his words, in case of a power, “the legal order ascribes to the person entitled a controlling will, not for the enforcement but for the existence of a command of the legal order.” He next tries to unite the two in one idea, and undertakes to frame a definition which will comprise both “kinds of rights in the subjective sense.” His formula runs thus: “A right is a power of will (Willensmacht) or authority of will (Willensherrschaft) conceded by the legal order.” In other words, in his analysis, for the purpose of securing interests, the legal order gives to the individual will (1) power to enforce, if it chooses, commands addressed to others by the legal order, and (2) authority to create, alter, or terminate situations to which such commands are annexed.

Three points in Windscheid’s discussion are of special interest. In the first place, he does not notice and set off the conception designated above as the fourth sense of “a right,” or better “a privilege.” As has been seen such a conception plays an important part in Roman law in the case of the beneficium diuisionis, beneficium competentiae, etc. But it happened that these privileges got a word of their own in Latin. As the Romans did not speak of a ius diuisionis it has not been necessary in modern law to set off a meaning of Recht for such cases, nor has anyone thought it necessary to work out an all-embracing conception to include this along with delimited interest, legal right and power. Does not this throw some light upon the utility of such attempts with respect to our word “a right,” where such terms as “right of deviation” have led many to feel that legal right, power and privilege must be summed up or rolled up in some one general idea? In the second place Windscheid’s analysis is obviously influenced by the ideas of the nineteenth-century metaphysical jurists, accepted by him in common with the historical jurists, especially the idea of referring everything to the will as the fundamental datum. Hence he thinks of a legal right as a capacity in the individual will to enforce a command in its interest and of a power as a capacity in the individual will to create situations or to terminate or alter them so that commands will attach, which this or some other individual will may enforce. The third and most important point is his view of the nature of a power; his conception of the contrast between the capacity to bring about enforcement of commands at will and the capacity to produce at will situations to which enforceable commands are annexed by law.

Of the writers of the present generation, Cosack, in particular, emphasizes the distinction between legal right and power calling the latter Rechtsmacht. He starts with the notion of the legal order as an ordering of mankind through rules. One way, he says, in which the legal order achieves this ordering is to guarantee a special authority to individuals. Such an authority guaranteed by a rule of the civil law, is a private legal right. So his formula runs: “A right is an authority guaranteed by law to the person entitled.”

(2) We come now to right defined as interest. The formulas hitherto considered have defined one of the means by which the legal order secures interests which it has recognized and has delimited for legal purposes. The “natural rights” which played so great a part in the jurisprudence and public law of the past were interests. Hence a theory of rights as interests but connected modern juristic thinking with the first use of the term right in modern juristic writing. Jhering is the classical exponent of this mode of looking at a legal right. As has been seen, he defines it as an interest protected by law. In other words, there is: (a) The natural right, the interest, quite apart from law, which we think ought to be secured; (b) the legal right, the interest which the law has defined and limited and given its sanction within those limits. Clearly he is not defining the same thing as the authors first considered. If Roman terminology may be used, one might say that there are: (a) The natural interest, the de facto claim independent of law, (b) the legal interest, the natural interest as recognized and delimited by law, and (c) the legal claim (Anspruch) by which the legal interest is made effective. It will be noted that I have omitted the word “right” entirely in this account of the matter, for it is more important that these ideas be kept distinct than to fix meanings to any particular word.

Perhaps Bierling has given the best analytical treatment of the idea of rights as recognized and delimited interests. He says that the term “a right” has two meanings, one of which has two aspects, so that ultimately there are three meanings. He expresses the first meaning by the word Anspruch and gives as examples, the right not to be injured by others in one’s honor, not to be injured in one’s body, not to be disturbed in the use of particular property, or to have this or that performed by a particular person. These are what the English analytical jurists call legal rights. In this sense, he says, a right is a claim, which one may make against the world at large or against a particular individual, to which the law gives its sanction. His view, then, is this: The law recognizes an interest, delimits it, and in order to secure it, creates a legal claim to that extent. It is the original natural interest all the time. The law simply makes it a legal institution within the limits in which it is recognized. The moral claim is now a legal claim, also. This is ingenious and has much to recommend it from a philosophical standpoint. But the two legal institutions, the legal interest and the legal capacity to make the interest effective by calling in the state against others, seem to demand more differentiation than this analysis provides.

Bierling designates what he calls the second meaning of “right” Befugniss. But this, he says, has two aspects. The first aspect he terms “simple legal permission” (dürfen). The content of this is purely negative. It is “the legally not forbidden.” The second aspect he terms können. It is legal capacity to effect something, or, to use his words, “capacity in pursuance of certain provisions of the positive law, to produce determinate legal consequences through legal transactions.” Obviously, this is what we have been calling legal power. The other aspect, however, is not exactly what we called privilege (right in the fourth sense above). That idea, as we have seen, for reasons growing out of the Roman law, did not go by the name of right and so did not get mixed up with legal rights and powers. The idea in Bierling’s dürfen is rather that of an unrestrained natural power of action—the idea which English judges often express by the term “liberty.” Accordingly Bierling’s analysis may be put summarily thus:

This is the best presentation of the matter, from the standpoint of the civil law of which I know. If Anspruch were defined as Windscheid defines it, little more could be said. Two points deserve special notice. First, where Windscheid speaks of power in terms of will, Bierling considers that it is a capacity to create legal consequences by legal transaction. Is this accurate? Is a breach of a contract which cannot be enforced specifically a legal transaction? And yet it turns the promisee’s claim to performance into a claim for money reparation. Is not the true account of the matter this: A power may be exercised by legal transaction, e.g., alienation, or by an act not intended immediately to have legal consequences, e.g., cutting of wood by a tenant without impeachment of waste, transfer of a note to a bona fide purchaser, sale in market overt? In the last two cases there is a legal transaction between seller and buyer, but the power of cutting off rights of the third-party owner is not its object. Secondly, and more important, the second aspect of Befugniss, the idea which he expresses by dürfen, calls for examination. Is there one idea here, or are there two? Does this include such things as the “right of deviation,” the privilege against self-crimination, the “right of fair comment,” etc., so that we may divide Bierling’s dürfen once more into (a) liberty (to find a name for the moment) as in the case of the ius abutendi and (b) privilege, as in the case of a license or a privileged communication? If there is a difference, it seems to be this: In the case of a privilege, something which involves aggression which infringes a secured interest of another, is privileged, so that the person who has the privilege is under no duty and no liability. In the case of a “liberty,” something which does not immediately involve aggression and is an incident of a secured interest, for that reason involves immunity if there is incidental injury. But what is this more than saying that in each case there is no duty or liability? On the whole it does not seem that any useful distinction may be made.

(3) It remains to consider right defined as relation. Puntschart first worked this out fully in German, but in view of the recent thorough development of the idea by Wigmore, his analysis need not be set forth. Kohler’s theory, however, demands a moment’s notice. He says that a right is a control by a certain person of a definite advantage of life. The legal order is primarily an ordering of these controls over advantages. The right is primarily a capacity to control some definite advantage of life more or less at one’s pleasure. But this control is effected by the legal order’s sanctioning and protecting a relation between (a) individual and object, (b) individual and other individuals. The power of control here is put as the means of securing the recognized and delimited interest. This accords with the position of the analytical jurists. One may concede that the power involves a certain relation. But what is the significant jural institution? It seems more important to mark off the capacity of control and the correlative duty.

Wigmore, who has treated the theory of right as relation with characteristic thoroughness and analytical acumen, begins with what he styles nexus. He holds that nexus involves two elements, the person element and the interest. In the person element there are two persons: (1) The person by whom state force is demandable, and from his side the nexus is termed a right; (2) the person against whom state force is demandable, and from his side the nexus is termed duty. The second element, interest, is the “fact of human condition which state force aims to protect or cause to be realized.” Thus he puts right (the capacity of demanding state force to secure an interest), duty (subjection to liability of state force for the securing of an interest) and the interest for security whereof the right and the duty are set up and imposed, as elements of a legal relation—of what the Germans would call subjektives Recht. How far is it important to insist upon this wider conception, including interest, legal right, and duty—or, indeed, natural interest, legally limited interest, legal right, duty, power and privilege? Would anyone try to do this if it were not that most of these ideas have developed later than the words by which we have tried to express them and so “right” has been an all-inclusive word? It seems doubtful whether we gain much by trying to include all these things under some one word, since the thing secured and the legal institutions that secure it are not reducible to any significant general idea behind them all.

title: Legal Rights


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Page:Weird Tales volume 28 number 03.djvu/114

380 after, a great hue and cry arises, a clamorous howl of derision is sent up by the readers, telling the writer to remember this is America and to speak United States. (I've had experience in the above matter after introducing German into a manuscript during high schooldays.) So!!! Now for the benefit of the readers who are ignorant of Français, either by choice or otherwise (or am I the only one who does not know the language?), is it too much to ask the writers to pen a few words extra of translation? For instance— ' Wie gehts— How goes it?' 'Taint so much work now—is it? And if I see much more of that French rubbish, I'm gonna hie me down to your editorial offices and rub those writers' noses in a few German verbs and tenses! And now for a placid comment on the bizarre and unusual: I am getting to like Clark Ashton Smith better 'n' better—his stories are acquiring a strangeness new to his former tales; e. g.—Necromancy in Naat. A new land, a new fate to befall victims of the wizards, braving a similarity to Zombie—but so utterly different—more repellent. And the ending pleased me—the hero didn't vanquish the villain, nor did he escape his doom and save his fair lady. Yessir, Mr. Smith, you are pleasing me mightily of late. The verse, Hagar, by Edgar Daniel Kramer, wasn't half bad. He completes in a few breathless lines a story that is deeply imbedded within us all—fear of dark forests—fear of lurking, nameless unknown horrors, fear of natural phenomena that assume the grotesqueness of fearsome legendary spawns of other worlds. Ah me—I am so happy! Conan is grand, recalling former tales of men and dragons—Siegfried of the Nibelungenlied (now I s'pose someone wants to know what that means!)—St. George and his dragon—countless others—every nation has such a hero. I dunno as yet where the Red Nails come in, but my! it's exciting already; strange, possibly unexplored places. Goody—I'm just so-o-o happy, I could gurgle! Robert E. Howard gave the readers of WT one of the finest, most lovable brutes of a hero anyone could want. Conan is the embodiment of the kind of man everyone admires: strength and nerve to please the men; physique—wunderbar! to please the ladies. Enough rawness to be yet a barbarian and still experience enough to be better educated than the majority of those he encounters. He has a mind strong enough to throw off the spells of wizards. He is a fighter, adventurer, explorer and lover—a real he-man. Mr. Howard is indeed a clever man!... Loot of the Vampire certainly put a new angle on vampires. I was well-satisfied with the whole story.... I note you stated my letter in the July issue was entertaining. I am complimented and trust that all my letters may be even more so. Auf wiederschreiben."

John V. Baltadonis, of Philadelphia, writes: "Well—I wasn't disappointed in the least bit; Loot of the Vampire certainly had a swell ending. That was a peach of a yarn. However, it didn't quite take the cake, so to speak, Ronal Kayser's story, The Unborn, nosing it out. The Unborn certainly had a new idea. For that reason and because it was well written, I give it first place in the July issue. This story is certainly a great step from The Albino Deaths. Clark Ashton Smith's yarn, Necromancy in Naat, took third place, with Hamilton's and Moore's tales following. Virgil Finlay's art work is without a doubt superb. I often find myself wondering how he would be on the cover, De Lay's illustration for Hamilton's yarn, When the World Slept, is certainly a humdinger. I'll close with an appeal for that plucky, inimitable Frenchman, Jules de Grandin."

Arel Rusl, of Mount Vernon, Illinois, writes: "Here goes the first letter that I have written to this department in ten years of reading your most excellent magazine. I think it's about time one of your old fans got into the swing of things by telling what he thinks of old WT in general and the July issue in particular. Vampires are my particular dish and I like short shorts; so two of your fairly recent yarns stick in my mind, namely, The Horror Undying and The Amulet of Hell. Both were swell and I think we should see more from those authors. The best tale in the July issue seemed to me to be The Kelpie. For sheer horror and originality it has few peers. The Unborn and When the World Slept tie for second place, but all the stories were up to standard, which is tantamount to the highest raise Well, I suppose this is enough for the first letter. And are you surprized to note the lack of


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Proclamation 780

WHEREAS the Congress of the United States did by an act approved on the sixteenth day of June, one thousand nine hundred and six, provide that the inhabitants of the Territory of Oklahoma and of the Indian Territory might, under and upon the conditions prescribed in said act, adopt a constitution and become the State of Oklahoma: AND WHEREAS by the said act provision was duly made for the election of a Constitutional Convention to form a constitution and state government for the said proposed State; and whereas it appears from the information laid before me that such Convention was duly elected and such constitution and state government were thereby duly formed: AND WHEREAS by the said act the said Convention was further authorized and empowered to provide by ordinance by submitting the said constitution to the people of the said State for ratification or rejection, and likewise for the ratification or rejection of any provisions thereof to be by the said Convention separately submitted: AND WHEREAS it has been certified to me, as required by the said act, by the Governor of the Territory of Oklahoma and by the Judge senior in service of the United States Court of Appeals for the Indian Territory that a majority of the legal votes at an election duly provided for by ordinance, as required by said act, have been cast for the adoption of said constitution; and whereas a copy of the said constitution has been certified to me, as required by said act, together with the articles, propositions and ordinances pertaining thereto, including a separate proposition for state-wide prohibition which has been certified to me as having been adopted by a majority of the electors at the election aforesaid: AND WHEREAS it appears from the information laid before me that the Convention aforesaid after its organization and before the formation of the said constitution duly declared on behalf of the people of the said proposed State that they adopted the Constitution of the United States: AND WHEREAS it appears that the said constitution and government of the proposed State of Oklahoma are republican in form and that the said constitution makes no distinction in civil or political rights on account of race or color, and is not repugnant to the Constitution of the United States or to the principles of the Declaration of Independence, and that it contains all of the six provisions expressly required by Section 3 of the said act to be therein contained: AND WHEREAS it further appears from the information laid before me that the Convention above mentioned did by ordinance irrevocable accept the terms and conditions of the said act as required by Section 22 thereof, and that all the provisions of the said act approved on the sixteenth day of June, one thousand nine hundred and six. have been duly complied with: NOW, THEREFORE, I, THEODORE ROOSEVELT, President of the United States of America. do. in accordance with the provisions of the said act of Congress of June sixteenth, one thousand nine hundred and six, declare and announce that the result of the said election, wherein the Constitution formed as aforesaid was submitted to the people of the proposed State of Oklahoma for ratification or rejection. was that the said Constitution was ratified together with a provision for state-wide prohibition, separately submitted at the said election: and the State of Oklahoma IS to be deemed admitted by Congress into the Union under and by virtue of the said act on an equal footing with the original States: IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the United States to be affixed.

THEODORE ROOSEVELT By the President:
 * ELIHU ROOT
 * Secretary of State.

title: Proclamation 780


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Page:Weird Tales volume 28 number 03.djvu/115

Rh brick-bats? You see, suits me just fine. No complaints, just keep up the good work and, to repeat a pæan as old as my acquaintance with WT, Keep weird."

Charles Donnelly, of Johnson City, Tennessee, writes: "I've always enjoyed a lot and I think I have proved it by my consistent reading of it. The tale that I've enjoyed best lately was Child of the Winds by that superb writer Edmond Hamilton. It fascinated me so that I read it again and again. Mr. Hamilton's style of writing is one that keeps me fascinatea until the end of the story. And that is some praise, because there are so few writers that can do that. I think that this story calls for a sequel because I don't believe Lora will be happy until she is back on the plateau with her friends I sincerely thank  for so many enjoyable hours. It takes one out of this humdrum world into a place of dreams. The only fault I ever found with it was when it just printed every other month. I hope that won't happen again, because a month is too long to wait for, and two months is eons."

Joseph Allan Ryan, of Cambridge, Maryland, writes: "Do WT readers ever stop to observe how far has traveled since its inception? Let's take an early issue of WT—the October 1925 one, for instance—and compare it with the latest one. First of all we have J. U. Giesy's humorous pseudo-scientific tale, The Wicked Flea—a highly illogical story of a flea that grew to a gigantic size and went chasing big dogs all over the country; it relied on silly names and one solitary pun to give it humor(?). Then there was Seabury Quinn's The Horror on the Links, the first de Grandin story. Although this tale showed Quinn's superiority in the field of weird story writing, it was not so interesting as are his present de Grandin tales, for it gave a scientific explanation to each phenomenon, whereas today we find only indications of the occult in Quinn's masterpieces. The Prophet's Grandchildren, by E. Hoffmann Price, was, though interesting, not weird, for it merely retold a legend of the Moslems The Fading Ghost, by Willis Knapp Jones, started as though it was going to be a real WT short-story


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Author:Stephen Grover Cleveland/Presidential Proclamations

1896

 * Proclamation 382 - Admitting Utah into the Union


text: Category:Presidential proclamations of Grover Cleveland