they create. Accurately used, "license" is a generic term to indicate a group of operative facts required to create a particular privilege,—this being especially evident when the word is used in the common phrase "leave and license." This point is brought by a passage from Mr. Justice Adams' opinion in Clifford v. O'Neill:[1]
A license is merely a permission to do an act which, without such permission, would amount to a trespass * * * nor will the continuous enjoyment of the privilege conferred, for any period of time cause it to ripen into a tangible interest in the land affected.[2]
Powers and Liabilities. As indicated in the preliminary scheme of jural relations, a legal power (as distinguished, of course, from a mental or physical power) is the opposite of legal disability, and the correlative of legal liability. But what is the intrinsic nature of a legal power as such? Is it possible to analyze the conception represented by this constantly employed and very important term of legal discourse? Too close an analysis might seem metaphysical rather than useful; so that what is here presented is intended only as an approximate explanation sufficient for all practical purposes.
A change in a given legal relation may result (1) from some superadded fact or group of facts not under the volitional control of a human being (or human beings); or (2) from some superadded fact or group of facts which are under the volitional control of one or more human beings. As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem.
The second class of cases—powers in the technical sense—
- ↑ (1896) 12 App. Div., 17; 42 N. Y. Sup., 607, 609.
- ↑ See, in accord, the oft-quoted passage from Thomas v. Sorrell (1673), Vaughan, 331, 351 ("A dispensation or license properly passes no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions, which without license, had been unlawful.").Compare also Taylor v. Waters (1817), 7 Taunt., 374, 384 ("Those cases abundantly prove that a license to enjoy a beneficial privilege in land may be granted, and, notwithstanding the statue of frauds, without writing." In this case the license (operative facts) is more or less confused with privileges (the legal relation created); Heap v. Hartley (1889), 42 Ch. D., 461, 470.
