68
THE GREEN BAG
It is fair inference that the decision may miscarry, and this, too, though no sound objection could be made to the rule or rules of law by which the case may, so far, be determined; still the decision, while it stands, is, and must in the nature of things be, an answer to the question of the particular legal right. The distinction then should be clearly noticed between the general postu late of legal right, together with the rules of law growing out of it, and the determina tion of the question, by the lawgiver, of a particular right. It is no ground of im peaching the former that the latter has mis carried. In the ordinary transactions of men the limitations above considered may have little influence. Men assume, and justly assume, that they have legal rights, though few of these may have been specifically de termined by law, and act accordingly. This is confidence, without which the affairs of men could not be carried on. Fortunately but the smallest part of the daily trans actions of the world ever calls for any legal determination of the matter of right. In deed, in ninety-nine out of a hundred cases, in the ordinary affairs of life, men know what is meant by freedom to live and to have and to carry out reasonable purposes in reasonable ways. The hundredth case requires the legal counsellor and adminis trator, and possibly the decision of the judge. As we have already seen, legal right of the higher order usually furnishes ground upon which one may bring an action against another. It is not always so; sometimes the right is available only in some peculiar way — it may not afford a ground of action at all, since that might not serve the pur pose. Thus a man put on trial upon a charge of crime acquires thereby a right to have the prosecution carried forward to a ver dict, in the hope, of course, of an acquittal, to clear his good name. Infringement would not, unless it were a case of malicious
prosecution, give him a cause of action. But the right to have the prosecution car ried through is as truly a legal right as any other; for if it is violated, the accused will be entitled by law to an acquittal.1 Such cases, however, are exceptional, and for the purposes of this book need only to be men tioned. It is a corollary of legal right that, among legal rights of the first order, all rights are equal. One right of the kind is as good as another; by the very terms of it any such right will sustain an action or a defense. It is not necessary or accurate therefore to say, as sometimes is said,2 that when a man sues on a stated claim of right, he must be answered, assuming the claim to be true and existing, by a "superior" right. If a man sue upon such a right, he must prevail, upon proof that the defendant has in fringed that right. If, on the otherhand.it appears that his claim is answered by legal right, that is enough — the plaintiff's right has not been infringed, not because the de fendant's right is superior, but because it is equal to the plaintiff's. The plaintiff has not proved his case. Legal right, in one and the same sense, may be shown by plain tiff and defendant alike. It is necessary now to inquire what rights are within the domain of the law of torts. Rights are either of substantive or of pro cedural law. With procedural rights we are not concerned; this book treats only of substantive law, not of the machinery by which the law is enforced. Rights of sub stantive law (and indeed of procedural law, but not on the same lines) in accordance with a division and nomenclature adopted from the Roman law, are in rem or in personam. Rights in rem avail against all the world; rights in pcrsonam, only against cer 1 Commonwealth v. Tuck, 20 Pick. 356, 365. 1 Walker v. Cronin, 107 Mass. 555, 564; Read v. Friendly Society of Stonemasons, 1902. 2 K. B. 88, 96.
