when the sheep becomes mutton each leg of mutton may have a separate owner; and a chimney in a house may be repaired and the old materials taken by the builder in part payment, or a whole wing of the house may be rebuilt and the materials sold in lots. So far we have spoken of things (as Littleton said) whereof a man may have a manual occupation, possession, or receipt 1.

But many elements of wealth are not tangible, as we know without assuming any special knowledge of law. The worth of five sovereigns is in the gold; the worth of a five-pound note, and the reason why we can get five sovereigns for it, is in the credit of the Bank of England. Whatever debts are owed to an individual, a firm, or a corporation in the course of business are part of the assets of the business. Nay more, the goodwill of a business, which is merely the right to go on using the old name, coupled with the expectation that custom will still follow the name, is often of great pecuniary value.

Then we have exclusive rights which, though not merely personal, are only remotely connected with any tangible thing, and consist in the legal power of excluding others from competition in respect of their subject-matter. One may have an exclusive right to take fish in a certain piece of water, to ferry passengers across a river for hire at a certain place, to make and sell a new machine or instrument, to multiply and sell copies of a book or a print. Again we may have rights over tangible things which belong to others; rights of way over land, rights of using or detaining goods by way of loan, hire, or pledge, and others. These rights can be and are regarded in law as having distinct and measurable values, and whatever has such value is a thing, though not a bodily and sensible thing. These benefits can be part of a man's inheritance or goods, of his 'estate and effects,' to use the largest term known to our law; they are capable of transmission and, for the most part, of voluntary alienation. We must recognize as things, in fact, all objects of exchange and commerce which are recognized by the usage of mankind.

It is often said that such things have no being save in contemplation of law: the Roman phrase is 'in iure consistunt.' But this is not accurate: for there may be 'groups of advantages,' to use Professor Holland's happy term, which have an appreciable value though the law does not recognize them. Imperfect rights of the nature of copyright, for example, might exist outside the law by usage and courtesy. Such rights did in fact exist in the United States to a certain extent before the Copyright Act of 1891,

1 Litt. s. 10.

as regards English books made over to American publishers; and they had a certain value to the American publisher, and consequently to the British author, although they were wholly unprotected by law, and (as events showed) precarious in fact. The goodwill of a business, again, would still have a commercial value if it were less efficiently protected by law than it is; and it would probably by no means lose the whole of its value even if it were not protected at all. The law began to protect it when it became notoriously valuable and not before. Hence it seems that in the case of incorporeal things the advantage or group of advantages' enjoyed or to be enjoyed in fact is the true subjectmatter of the right, and corresponds to the tangible object which we call a corporeal thing as distinct from the rights exercised over it. Of course the value of an incorporeal thing may be largely due to its recognition and protection by the law, and some incorporeal things may be called creatures of the law. But no one will suppose that the value of tangible property would not also be diminished if the law should cease to punish theft, or to decide questions of title. The parallel therefore seems to hold good notwithstanding the possible anomalies of extreme cases.

6

At this point it may be worth considering, at the risk of an apparent paradox, whether corporeal things themselves are so corporeal as we think at first. For a material object is really nothing to the law, whatever it may be to science or philosophy, save as an occasion of use or enjoyment to man, or as an instrument in human acts. In fact there are parcels of terrestrial matter which are not things in the law. Of some such parcels, on grounds of necessary convenience, we have to say communia sunt omnium,' the water of the high seas for example: of other such we say, for reasons of religion or state, nullius in bonis sunt.' This is much easier to illustrate from the Roman law than from our own; for the Common Law abhors a vacuum of property : a statement which the reader, unless he be already learned in the law, must provisionally take for granted. A thing which belongs to nobody is of no legal importance until something happens to bring a person into relation with it, and make it the subject-matter of enforceable rights. An old iron pot thrown away and dropped at the bottom of a canal, for example, might well be no more to the law than if it were in another planet. If it is something to the law, it is because the local law may happen to provide, as ours does, that abandonment shall not wholly destroy or suspend the legal qualities of a chattel which has once been a thing of value. So that on the whole perhaps we have good ground for saying that the 'thing' of legal contemplation, even when we have to do with

a material object, is not precisely the object as we find it in common experience, but rather the entirety of its possible legal relations to persons. We say entirety, not sum, because the capacity of being conceived as a distinct whole is a necessary attribute of an individual thing. What the relations of a person to a thing can be must depend in fact on the nature of the thing as continuous or discontinuous, corporeal or incorporeal, and in law on the character and the extent of the powers of use and disposal which particular systems of law may recognize. A man who has copyright in a book can alienate but cannot destroy the copyright, though he may choose, on some scruple of conscience against monopoly in spiritual benefit1, not to exercise his right or reap the profit of it. The owner of an unique manuscript can destroy it in fact, but the law might conceivably forbid him to do so, and probably would if the obvious interest of those to whom things of unique value belong were not thought to be sufficient security against wanton destruction. Land, though it can be wasted or, in some situations, flooded, cannot be destroyed in the same sense as ordinary chattels; and some few chattels, such as the harder kinds of gems, may be considered indestructible as compared with perishable goods and even with relatively lasting materials of common use. Through all the range of natural and legal diversities, however, a thing remains, for the lawyer's purposes, that which is attributed by law to the natural or conventional thing in regard to the rights and duties of persons.

Here, then, we seem to have a necessary point of contact between law and philosophy. The lawyer as well as the metaphysician is driven, when he takes to thorough-going analysis, to face idealism. What we commonly call things are resolved by philosophical analysis into possibilities or occasions of perception. The idealist boldly says that the esse of material things is percipi. So we may say that in contemplation of law the esse of things is haberi or in bonis esse. That only is a thing which can, in the widest sense, be owned: it must be the subject-matter of rights that the law will recognize. An ownerless thing is for the lawyer pretty much what a thing in itself' is for the philosopher. A res nullius is as void. of legally intelligible contents as is a Ding an sich of intelligible contents of any kind. It is merely negative and irrational; the very notion of it excludes it from the world of rational import. We can see in it, at most, the potency of a future legal significance. The books in my closet,' in Berkeley's famous example, are merely the potentiality of the books I shall see when I open the closet. And so the ownerless abandoned thing, in systems which admit the

1 Count Lyof Tolstoi not long ago disclaimed all interest in the copyright of his works for some such reason.

extinction of property, is the mere potentiality of possession or ownership to come, whether the thing itself be buried treasure or a worthless tin pot. There is a legal vacuum till the act of an occupier or finder restores the thing, so to speak, to the world of legal reality. Hence, if we find in a particular system of law rules which are astute even to refinement to prevent this state of vacuum, there is no reason to treat such an endeavour as absurd. In fact the old masters of the Common Law did take the line of abhorring vacant possession or property, and put forth extreme ingenuity to avoid admitting it. Without contending that they were consciously led by any philosophic reason, one may be allowed to think that, whether by scientific instinct or by good fortune, they showed themselves on this point at least as good philosophers as the Roman lawyers.

The foregoing remarks are, as they stand, a fragment; but they may have some bearing on the difficult speculative and historical problems raised by the common law doctrine of things in action,' which are now under discussion in this REVIEW. My own opinion, so far as I have formed one, inclines to the conclusion that our English 'thing in action' will be found to be really equivalent in its conception to the Roman Obligation, but that the idea has been much perplexed in its application, like almost all the subtler ideas met with in English law, partly by historical accidents and partly by ignorance.

FREDERICK POLLOCK.

THE QUASI-GRANT OF EASEMENTS IN ENGLISH AND ROMAN LAW.

F late years the Courts have on several occasions dealt with

vendor of adjoining tenements, and after some considerable conflict of judicial opinion the law is tolerably well settled. The difficulty arises in this way: The owner of the adjoining tenements has enjoyed quasi-easements or rights analogous to easements in respect of one tenement over the other: he conveys one or both of the tenements to purchasers: how far do the rights which before the severance of ownership were quasi-easements become, after the severance, actual easements, independently of prescription or express grant? The question, said Chitty J., 'is not like the case of an implied grant where, upon reading the instrument, you say the terms employed mean so and so; and it is necessary in order to give effect to the intention, as manifested by the deed, to imply something which is not expressed in so many words '.' In truth, if the quasi-easements are transformed into actual easements, they are so transformed, not by express grant nor by implied grant in the correct sense of the term, but by quasi-grant. The obligation or right arises neither from the express words of the instrument, nor from that which, having regard to the circumstances, must be considered the true meaning and effect of the words of the instrument, but from the position into which the parties have placed themselves by their contract. That is to say, after an examination of the surrounding circumstances the law imputes to the parties an intention that the quasi-easements enjoyed by the joint owner shall or shall not be transformed by the severance of the tenements into actual easements.

This problem has exercised the English Courts during some centuries, but it is not necessary to discuss the cases which are scattered in considerable profusion about the Year Books and the older series of reports: in these latter days controversy has settled round the vigorous judgment of Lord Westbury in Suffield v. Brown2. If an owner of two adjoining tenements enjoys in respect of one quasi-easements over the other, then the former is said to be quasi