simple power to make an offer on behalf of P, but P has a simple power to revoke A's authority.47 Simple powers may also destroy simple claims. Thus, if a claim is unenforcible because of the statute of frauds, the claim is defective; it falls in the mesonomic group and is a simple claim. Yet, the (simple) debtor has a (simple) power to perform if he chooses, and the money paid would not be recoverable on any ground. (7) Simple privilege. Since privilege is only a variety of power used for the convenience of speech and especially in the field of public law (e. g. "right" to vote, franchises, licenses), it needs no detailed explanation. One illustration may suffice. If a servant is dealing with his master's chattel in the course and within the scope of his employment, the servant is exercising a simple privilege. As to that act, the relation is mesonomic since there is no constraint on the master." The relation of master and servant in the conduct of the master's business is not adversary as is the case, for example, in invitation and in some forms of license. (8) Simple Immunity. Where one person is secure in his legal advantages from effective power in another, he is said to be "immune" as to that advantage. There are two kinds of immunity-perfect and imperfect. If A's title cannot be divested by B's paper conveyance, A has perfect immunity as to the legal relations embraced by his title against B's act. Where, however, A's immunity is against a trespass to A's person by B, A's immunity is imperfect, since the factual interest upon which it rests may be violated. Imperfect immunities are nexal when they are connected by reciprocation with duties which may be infringed; but perfect immunities are always simple immunities. They represent merely the specific *Again, the simple (pre-neval) power to accept an offer may be destroyed by a simple power of revocation in apt time. The chief significance of mesonomic relations lies in this, that they are often the substrates of zeugmanomic relations and that it is necessary to understand the unilateral stages by which zeugmanomic relations are created or destroyed in order to deal with them in technical analysis where their existence is in controversy, **`00 "Plurality of Advantage and Disadvantage in Jural Relations", 19 Mich. 1 Rev, 42, 33 ("Reciprocals"; 50, Table 11.) **This view is consistent with the derivation of the doctrines of agency from potria Podbars, as stated by Homes ("The History of Agency", Ang. Amer. Legal Host 111, gos), and the fiction of identity, as fhoc occurs in sengmanomic relations where an immunity is always the reexpasival of a duty. If the duty is positive a, e, to do the act) the immunity is Regative de to prevent the not doing of the act); and, contrariwise, if the munity is positive, the reciprocal duty is negative. See "Plurality of Advanpage and Disadvantage in hural Relations", 19 Mich. L. Rev., 47, 55; and the 10de of Negative Carrelatives" in "Tabulae Minores Jurisprudentiae", 30 Vale 1 Jour, 213, 240 term of no-liability as the correlate by inversion" of no-power. Even where an immunity is fortified by a duty, unless the duty is the reciprocal of disability, the nature of the immunity as a simple immunity is not changed. The relation in that case is complex -there is a nexal claim correlated by a nexal duty (not to do the act in question); and there is a simple immunity against any legal consequences flowing from the act which touch the legal advantage which has been threatened. Since, in substance, a simple immunity is a non-existent, its employment would be difficult to justify, if it were not actually in use in speech in juristic analysis. Its principal function is in opposition to power. Thus, if B is holder of an unrecorded deed, C may divest him (B) by prior record of a later deed in good faith, without notice, B's immunity is an imperfect simple immunity so long as there is outstanding a power in another to divest him; when B has recorded his deed in advance of another deed in the immediate chain of title, B's immunity is perfect. (9) Elliptical relations. These are incomplete relations. The chief function of this category lies in its convenience as a legal shorthand and in its very wide use in the practical speech of practicing lawyers. Incomplete relations, in truth, are not legal relations at all. They are only anomic relations cast in a verbal form of zeugmanomic relation by way of abbreviation of various hypothetical elements. For example, we speak of the right (claim) to be received as a guest by an innkeeper. Before a demand for entertainment by a given person of such quality that no legal reason appears for denying his demand, made of an innkeeper who has the accomodations wanted, there is no present compulsory connection between an innkeeper unidentified or identified and a person unidentified or identified, before various jural facts (demand, etc.,) are discovered. There is a rule of law hypothetically ready to operate when certain conditions are found, but in the case stated, the conditions are not yet presented. The relation is legally incomplete for want of these necessary elements. In a broad sense, such a relation might be called "inchoate", but it seems best to use the term "incomplete", because inchoate relations may include complete legal relations. "The general negative, "no-liability", excludes only liability and, therefore, may (a) in the most general sense mean any other concept whatsoever, whether legal or non-legal, or (b), when restricted to fundamental legal notions, may mean any other fundamental legal concept than the single one negated. In either sense, its correlate is unknown, but it may be made known (specific) by way of inversion. This process is explained in the above article ("Tabulae Minores”). This element of incompleteness is found also in powers as well as in claims. Thus, all persons have natural power (liberty, freedom) to occupy an abandoned chattel subject to the opportunities and natural natural powers of others. Their relations to each other, before appropriation by one of them, because of their high degree of contingency, seem to have more of anomic than of nomic character, but since the object is one which is a possible subject of complete legal relations; since in other words the fact is one which may be a substrate of a complete legal relation, it is by prolepsis presently regarded as a nomic relation, solely on the ground of convenience that a legal rule may be hypothetically formulated to embrace it. In this connection, the question will occur as one of consistency why certain powers, as for example the power of commiting a tort, are clearly regarded as mesonomic apart from a mere matter of convenience of terminology. The distinction would seem to be that in the latter case there is already present a legal relation (e. g., claim to corporal integrity) while in the case of an abandoned chattel there is no present legal relation of which the chattel is the corpus, but only a naked possibility.62 Other positive duties in rem also afford abundant illustrations of incomplete relations; for example, the statutory duties of quasi-public corporations (e. g. duty of a railroad company to sound a whistle, ring a bell, or lower a gate at a crossing.) 53 Again, other and abundant illustrations are found in connection with negative common law duties; for example, the duty of an automobile driver to use due care, the claim of a workman to have a safe place to work, the duty of a seller not to make false representations to the buyer. Not one of these statements is accurate, but the usage is one of great convenience. The essence of legal relations lies in their active element- in the content. Since, basically, there are only two types of legal relation, Claim-Duty and Power-Liability, there are only two active elements to be considered, viz., duty and power. But the kinds of acts which may be expressed in terms of duty and of power are so numerous 52 These illustrations show clearly that there are various kinds of mesonomic relations differing in their practical importance. The assertion of existence of nomic relations concerning a res nullius may be justified on the ground that the dynamic effect of an act of occupation creates directly a zeugmanomic relation. This would not be true of any act flowing from a purely anomic relation. Cf. note 49, supra. 53 For various other types of incomplete (mesonomic)relation see Kohler "Lehrbuch d. bürgerl. Rechts", I, 152 (349 et seq.: "Rechtslagen"). This is the first instance which has come to our notice elsewhere of express juristic recognition of mesonomic relations. in detail that it is necessary to focus these elements under descriptive terms such as "right of corporal integrity", "right of reputation" "rights of the cestui against the trustee", etc. This is the method of institutional books and treatises. (10) Abscindable Relations. Abscindable relations are transpositive forms of rescindable relations. A rescindable relation is perfect and uniform in incidence as to all persons but one. An abscindable relation is uniform and imperfect in its legal incidence as to all persons but one. Illustrations are found in great abundance in all legal situations where the rule of innocent purchaser for value without notice operates (e. g., law of trusts, negotiable paper, factors, seller in possession, ostensible owner). One example may suffice: when A and B have an agreement for a non-possessory lien on a chattel improved by A but in B's possession, the agreement is perfect as between A and B and enforcible at law and probably in equity, but an attaching creditor can divest the lien." (11). Dormant Relations. Dormant relations are found where a legal advantage is temporarily overshadowed by another legal advantage arising from an independent jural fact. For example, the claim of an owner of land that others shall not trespass on it, is dormant so long as others have the privilege of deviating onto the land because of an obstruction on the highway. When the necessity passes, the claim is restored to its usual compass. 3. Zeugmanomic (zeugma-yoke; nomos-law) relations are complete or perfect legal relations. All that is meant by "complete" or "perfect" is that no element is wanting to make them conform to the definition above given, involving a capability of constraint in one person against another by way of power or claim. The terms anomic, mesonomic, and zeugmanomic are applied here to relations in the abstract; while the definite and concrete capabilities (which are also relational) are qualified, respectively, by the terms "naked", "simple", and "nexal". For illustration: a claim without any sort of legal basis is a naked claim, and as to that claim the parties are in anomic relation; if A has a claim for money against B who has been discharged in bankruptcy, A's claim is a simple claim and the relation between A and B is mesonomic; if B has made a new promise of payment after adjudication, A's claim is nexal, and A and B are in zeugmanomic relation. "McFarland v. Wheeler, 26 Wend. (N. Y.) 467, (1841). The Treaty Making Power and the BY CHARLES Kellogg BURDICK1 I The Constitution provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Under the Articles of Confederation3 Congress possessed the sole power of making treaties, it being necessary for nine States to concur. In the Constitutional Convention there was difference of opinion as to whether the treaty making power should be vested in the President, the Senate, Congress as a whole, or in the President and the Senate, but the latter view finally prevailed. There was also opinion favorable to a requirement that two-thirds of the whole membership of the Senate should concur, but this did not meet with the approval of the majority of the Convention. The difficulty which has often been experienced in getting treaties approved by the Senate after they have been negotiated may reasonably lead to the belief that even the provision which was adopted was too cautious, and that a provision for approval by a majority of the Senate would have been more reasonable and workable. There has been some variety of opinion as to what is meant by the provision that treaties shall be made by the President "by and with the advice and consent of the Senate." It is reasonably inferable that the drafters of the Constitution did intend that the Senate should have a part in advising with regard to the negotiation of treaties, and it is significant that President Washington did repeatedly ask the Senate's advice in negotiating treaties. On the whole, however, the practice has been otherwise, and most treaties have 'Professor of Law, Cornell University College of Law. Art. II, sec. 2, par. 2. 'Art. IX. 'Story on the Constitution (5th ed.), sec. 1506. W. H. Dewhurst, Does the Constitution Make the President Sole Negotiator of Treaties? 30 Yale L. Jour. 478. |