Definition
"Who may be" is a recurring structural phrase in legal treatises and dictionaries used to head the section or discussion addressing the question of legal capacity or eligibility — that is, which persons or entities qualify to occupy a particular legal role, enter a particular legal relationship, or exercise a particular legal right. It is not itself a substantive legal term but a doctrinal organizing device. Its meaning is entirely dependent on context: "who may be a partner," "who may be a witness," "who may be a plaintiff," and so on each invoke the same analytical framework — legal capacity — applied to different legal contexts.
In its most common historical usage, the phrase introduces a capacity analysis structured around categories of persons: natural persons with full legal capacity, persons under legal disability (minors, persons of unsound mind), married women (under coverture regimes), corporations, aliens, and public officers. The general rule across contexts is that any person possessing the legal capacity to contract or to act in a given legal sphere may occupy the role in question, subject to specific disqualifications.
Why It Matters in Research
Researchers encountering "who may be" in historical legal sources should understand it as a signal that what follows is a capacity and eligibility analysis, not a definitional discussion of the role itself. This matters because capacity rules have changed dramatically across time and jurisdiction. Historical sources applying this framework may reflect legal disabilities — for married women, enslaved persons, aliens, and others — that have been entirely abolished, sometimes by constitutional amendment, sometimes by statute, sometimes by judicial decision. A researcher using Bouvier's or similar 19th-century sources to understand who may be a partner, a witness, or a party must treat those capacity rules as historically contingent.
The phrase also appears with significant frequency in treatise indexes and section headings, making it a useful corpus search term when trying to locate eligibility discussions rather than definitional ones. In Law Mind's corpus, searches for "who may be" paired with a specific role (partner, heir, beneficiary, plaintiff) will often surface the most practically useful eligibility analysis for that topic.
Note also that the historical capacity framework embedded in "who may be" discussions often conflates several distinct modern legal concepts: standing, capacity to sue, legal personhood, and contractual competence. Modern law has disaggregated these. A researcher moving from historical to modern sources must be alert to this fragmentation — what Bouvier's addressed in a single "who may be" section may now be distributed across procedural rules (standing, real party in interest), substantive law (contractual capacity), and constitutional doctrine (equal protection, due process).
Historical Dictionary Support
Bouvier's Law Dictionary uses "who may be" as a standard section heading throughout its treatment of legal roles and relationships. The partnership entry is representative: it opens with a general rule — persons with capacity to make other contracts may be partners — and then systematically works through categories of potential exceptions or qualifications: aliens (friends may, enemies may not), married women (capacity limited under coverture), minors, corporations, and public officers.
The structure is entirely typical of 19th-century treatise organization. Lindley on Partnership (cited throughout as "Lind. Part.") and Parsons on Partnership (cited as "Pars. Part.") follow the same organizational logic, as does Kent's Commentaries. These sources share a common framework: begin with a general capacity rule derived from contract law, then enumerate exceptions and qualifications by category of person.
What historical dictionaries and treatises in this vein do not address — and where modern research must supplement them — is the constitutional dimension. The disqualifications they treat as settled law (alien enemies, married women, minors) are now analyzed under due process and equal protection frameworks that postdate these sources entirely. Bouvier's treatment of alien enemies, for instance, reflects common law commercial disability doctrine without any constitutional analysis; modern treatment of the same question involves statutory and treaty frameworks that Bouvier's could not anticipate.
Jurisdictional Note
Capacity rules vary by jurisdiction and have evolved differently across states. Married women's capacity, in particular, was reformed by statute at different times and to different extents across American jurisdictions throughout the 19th and early 20th centuries. Researchers relying on historical "who may be" analyses should verify the applicable jurisdiction's reform history before drawing conclusions.
Encyclopedia Cross-Reference
The Law Mind Torts & Personal Injury Encyclopedia: Wrongful Death and Survival Actions — Who May Bring a Wrongful Death Claim (Beneficiaries) [torts_156] — directly applies the "who may be" eligibility framework to wrongful death plaintiffs.
The Law Mind Tax Encyclopedia: Filing Requirements — Who Must File [tax_72] — applies analogous eligibility and obligation analysis in a tax context.