D and others in relation to eating the salad, or, correlatively, the respective "no-rights" of A. B. C. D and others that the party should not eat the salad; second, the party's respective rights (or claims) as against A. B. C. D and others that they should not interfere with the physical act of eating the salad, or, correlatively, the respective duties of A, B, C, D and others that they should not interfere.
These two groups of relations seem perfectly distinct; and the privileges could, in a given case exist even though the rights mentioned did not. A. B. C. and D, being the owners of the salad, might say to X: "Eat the salad, if you can; you have our license to do so, but we don't agree not to interfere with you." In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn't eat the contents, no right of X would have been violated.[1]
Perhaps the essential character and importance of the distinction can be shown by a slight variation of the facts. Suppose that X, being already the legal owner of the salad, contracts with Y that he (X) will never eat this particular food. With A, B
- ↑ Other instances in Professor Gray's work may be noted. In sec. 53, he says: "So again, a householder has the right to eject by force a trespasser from his 'castle.' That is, if sued by the trespasser for an assault, he can call upon the court to refuse the plaintiff its help. In other words, a man's legal rights include not only the power effectually to call for aid from an organized society against another, but also the power to call effectually upon the society to abstain from aiding others."This, it is respectfully submitted, seems to confuse the householder's privilege of ejecting the trespasser (and the "no-right" of the latter) with a complex of potential rights, privileges, powers and immunities relating to the supposed action at law.In sec. 102, the same learned author says: "If there is an ordinance that the town constable may kill all dogs without collars, the constable may have a legal right to kill such dogs, but the dogs are not under a legal duty to wear collars."It would seem, however, that what the ordinance did was to create a privilege—the absence of the duty not to kill which otherwise would have existed in favor of the owner of the dog. Moreover, that appears to be the most natural connotation of the passage. The latter doesn't except very remotely, call up the idea of the constable's accompanying rights against all others that they shouldn't interfere with his actual killing of the dog.See, also, secs. 145, 186.
