Since all legal interests are "incorporeal"—consisting, as they do, of more or less limited aggregates of abstract legal relations—such a supposed contrast as that sought to be drawn by Blackstone can but serve to mislead the unwary. The legal interest of the fee simple owner of land and the comparatively limited interest of the owner of a "right of way" over such land are alike so far as "incorporeality" is concerned; the true contrast consists, of course, primarily in the fact that the fee simple owner's aggregate of legal relations is far more extensive than the aggregate of the easement owner.
Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things;[1] so that their use in connection with legal relations is, strictly speaking, figurative or fictional. The term, "transfer," is a good example. If X says that he has his transferred his watch to Y, he may conceivably meal, quite literally, that he has physically handed over the watch to Y; or, more likely, that he has "transferred" his legal interest, without any delivery of possession,—the latter, of course, being a relatively figurative use of the term. This point will be reached again, when we come to treat of the "transfer" of legal interests. As another instance of this essentially metaphorical use of a term borrowed from the physical world, the word "power" may be mentioned. In legal discourse, as in daily life, it may frequently be used in the sense of of physical or mental capacity to do a thing; but, more usually and aptly, it is used to indicate a "legal power", the connotation of which latter term is fundamentally different. The same observations apply, mutatis mutandis, to the term "liberty."
Passing to the field of contracts, we soon discover a similar inveterate tendency to confuse and blur legal discussions by failing to discriminate between the mental and physical facts involved in the so-called "agreement" of the parties, and the legal "contractual obligation" to which those facts give rise. Such
- ↑ 19 Compare Poll. & Mait. Hist. Eng. Law (2nd ed., 1905), Vol. II, p. 31: "Few, if any, of the terms in our legal vocabulary have always been technical terms. The license that the man of science can allow himself of coining new words is one which by the nature of the case is denied to lawyers. They have to take their terms out of the popular speech; gradually the words so taken are defined; sometimes a word continues to have both a technical meaning for lawyers and a different and vaguer meaning for laymen; sometimes the word that lawyers have adopted is abandoned by the laity." Compare also Ibid., p. 33.
