y of quasi-contract, satisfied to say "quasi"
because on analysis they do not comport with his theory of contract,
and to say "contract" because procedurally they are enforced _ex
contractu_. Pressed further, he may be willing to add "quasi tort" for
cases of common-law liability without fault and workmen's
compensation--"quasi" because there is no fault, "tort" because
procedurally the liability is given effect _ex delicto_. But cases of
duties enforceable either _ex contractu_ or _ex delicto_ at the option
of the pleader and cases where the most astute pleader is hard pushed
to choose have driven us to seek something better.

Obligation, the Roman term, meaning the relation of the parties to
what the analytical jurists have called a right _in personam_ is an
exotic in our law in that sense. Moreover the relation is not the
significant thing for systematic purposes, as is shown by civilian
tendencies in the phrases "active obligation" and "passive obligation"
to extend the term from the relation to the capacity or claim to exact
and duty to answer to the exaction. The phrase "right _in personam_"
and its co-phrase "right _in rem_" are so misleading in their
implications, as any teacher soon learns, that we may leave them to
the textbooks of analytical jurisprudence. In this lecture, I shall
use the simple word "liability" for the situation whereby one may
exact legally and the other is legally subjected to the exaction.
Using the word in that sense, I shall inquire into the philosophical
basis of liability and the system of the law on that subject as
related to that basis. Yellowplush said of spelling that every
gentleman was entitled to his own. We have no authoritative
institutional book of Anglo-American law, enacted by sovereign
authority, and hence every teacher of law is entitled to his own
terminology.

So far as the beginnings of law had theories, the first theory of
liability was in terms of a duty to buy off the vengeance of him to
whom an injury had been done whether by oneself or by something in
one's power. The idea is put strikingly in the Anglo-Saxon legal
proverb, "Buy spear from side or bear it," that is, buy off the feud
or fight it out. One who does an injury or stands between an injured
person and his vengeance, by protecting a kinsman, a child or a
domestic animal that has wrought an injury, must compound for the
injury or bear the vengeance of the injured. As the social interest in
peace and or