sequitur to conclude from the mere existence of such liberties that "third parties" are under a duty not to interfere, etc. Yet in the middle of the above passage from Lord Lindley's opinion there is a sudden and question-begging shift in the use of terms. First, the "liberty" in question is transmuted into a "right," and then, possibly under the seductive influence of the latter word, it is assumed that the "correlative" must be "the general duty of every one not to prevent," etc.
Another interesting and instructive example may be taken from Lord Bowen's oft-quoted opinion in Mogul Steamship Co. v. McGregor.[1]
We are presented in this case with an apparent conflict or antinomy between two rights that are equally regarded by the law—the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others.
As the learned judge states, the conflict or antinomy is only apparent; but this fact seems to be obscured by the very indefinite and rapidly shifting meanings with which the term "right" is used in the above quoted language. Construing the passage as a whole, it seems plain enough that by "the right of the plaintiffs" in relation to the defendants a legal right or claim in the strict sense must be meant; whereas by "the right of the defendants" in relation to the plaintiffs a legal privilege must be intended. That being so, the "two rights" mentioned in the beginning of the passage, being respectively claim and privilege, could not be in conflict with each other. To the extent that the defendants have privileges the plaintiffs have no rights; and conversely, to the extent that the plaintiffs have rights the defendants have no privileges ("no-privilege" equals duty of opposite tenor).[2]
- ↑ (1889) 23 Q. B. D., 59.
- ↑ Cases almost without number might be cited to exemplify similar blending of fundamental conceptions and rapid shifting in the use of terms ;—and that, too, even when the problems involved have been such as to invite close and careful reasoning. For a few important cases of this character, see Allen v. Flood (1898), A. C, 1, (Hawkins. J., p. 16: "I know it may be asked, 'What is the legal right of the plaintiffs which is said to have been invaded?' My answer is, that right which should never be lost sight of, and which I have already stated—the right freely to pursue their lawful calling;" Lord Halsbury, p. 84: "To dig into one's own land
