attended with certain risks. A man who fails to take order, in things within his control, against risk to others which he actually foresees, or which a man of common sense and competence would in his place foresee, will scarcely be held blameless by the moral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission of something in itself forbidden by the law, or the omission of a positive and specific legal duty, though without any intention to cause harm, can be and is, at best, not more favourably considered than imprudence if harm happens to come of it; and here too morality will not dissent. In some conditions, indeed, and for special reasons which must be considered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be avoided, even by proof that the utmost diligence in the way of precaution has in fact been used, and yet the party liable has done nothing which the law condemns (h). Except in these cases, the liability springs from some shortcoming in the care and caution to which, taking human affairs according to the common knowledge and experience of mankind, we deem ourselves entitled at the hands of our fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to criminal liability, as in the case of manslaughter by negligence. We have, then, three main divisions of the law of torts. In one of them, which may be said to have a quasi (h) How far such a doctrine can be theoretically or historically justified is not an open question for English courts of justice, for it has been explicitly affirmed by the Relation of the law of torts to the semiethical precept Alterum non laedere. Historical anomaly criminal character, there is a very strong ethical element. In another no such element is apparent. In the third such an element is present, though less manifestly so. Can we find any category of human duties that will approximately cover them all, and bring them into relation with any single principle? Let us turn to one of the bestknown sentences in the introductory chapter of the Institutes, copied from a lost work of Ulpian. "Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere." Honeste vivere is a vague phrase enough; it may mean refraining from criminal offences, or possibly general good behaviour in social and family relations. Suum cuique tribuere seems to fit pretty well with the law of property and contract. And what of alterum non laedere? "Thou shalt do no hurt to thy neighbour." Our law of torts, with all its irregularities, has for its main purpose nothing else than the development of this precept (i). This exhibits it, no doubt, as the technical working out of a moral idea by positive law, rather than the systematic application of any distinctly legal conception. But all positive law must pre-suppose a moral standard, and at times more or less openly refer to it; and the more so in proportion as it has or approaches to having a penal character. The real difficulty of ascribing any rational unity to our of law of law of torts is made by the wide extent of the liabilities mentioned under Group B., and their want of intelligible relation to any moral conception. trespass and conversion. A right of property is interfered with "at the peril of (i) Compare the statement of "duty towards my neighbour," in the Church Catechism, probably from the hand of Goodrich, Bishop of Ely, who was a learned civilian: "To hurt nobody by word nor deed To be true and just in all my dealing ... the person interfering with it, and whether his interference be for his own use or that of anybody else" (k). And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, the legal consequences and the form of the remedy are for English justice the same. The truth is that we have here one of the historical Early division of anomalies that abound in English law. Formerly we forms of had a clear distinction in the forms of procedure (the action. only evidence we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. Of course the same facts would often, at the choice of the party wronged, afford ground for one or the other kind of claim, and the choice would be made for reasons of practical convenience, apart from any scientific or moral ideas. distinction was in itself none the less marked. right and tion of title to land there was the writ of right; and the writs of writ of debt, with its somewhat later variety, the writ of trespass: detinue, asserted a plaintiff's title to money or goods in or punisha closely corresponding form (7). Injuries to person or property, on the other hand, were matter for the writ of trespass and certain other analogous writs, and (from the 13th century onwards) the later and more compre (k) Lord O'Hagan, L. R. 7 H. L. at p. 799. (1) The writ of right (Glanvill, Bk. i. c. 6) runs thus: "Rex vicecomiti salutem: Praecipe A. quod sine dilatione reddat B. unam hidam terrae in villa illa, unde idem B. queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum," &c. The writ of debt (Bk. x. c. 2) thus: "Rex vicecomiti But the For asser- Writs of salutem: Praecipe N. quod iuste restitution ment. hensive writ of trespass on the case (m). In the former kind of process, restitution is the object sought; in the latter, some redress or compensation which, there is great reason to believe, was originally understood to be a substitute for private vengeance (n). Now the writs of restitution, as we may collectively call them, were associated with many cumbrous and archaic points of procedure, exposing a plaintiff to incalculable and irrational risk; while the operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the writ of right and its kind. Not only was the writ of right first thrust into the background by the various writs of assize-forms of possessory real action which are a sort of link between the writ of right and the writ of trespass-and then superseded by the action of ejectment, in form a pure action of trespass; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case (o). In this way the distinction between proceedings taken on a disputed claim of right, and those taken for (m) Blackstone, iii. 122; F. N. B. 92. The mark of this class of actions is the conclusion of the writ contra pacem. Writs of assize, including the assize of nuisance, did not so conclude, but show analogies of form to the writ of trespass in other respects. Actions on the case might be founded on other writs besides that of trespass, e. g., deceit, which contributed largely to the formation of the action of assumpsit. The writ of trespass itself is by no means one of the most ancient: see F. W. Maitland in Harv. Law Rev. iii. 217-219. (n) Not retaliation. Early Germanic law shows no trace of retaliation in the strict sense. A passage in the introduction to Alfred's laws, copied from the Book of Exodus, is no real exception. (0) For the advantages of suing in case over the older forms of actions, see Blackstone, iii. 153, 155. The reason given at p. 152 for the wager of law (as to which see Co. Litt. 295 a) being allowed in debt and detinue is some one's idle guess, due to mere ignorance of the earlier history. the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed; and therefore, as the distinction of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was transferred, in forensic usage and thence in the traditional habit of mind of English lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor's intention; hence the archaic law of injuries is a law of absolute liability for the direct consequences of a man's acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the law of wrongful injuries for trying what were. really questions of absolute right; and that practice again tended to the preservation of these same archaic ideas in other departments of the law. It will be observed that in our early forms of action contract, as such, has no place at all (p); an additional proof of the relatively modern character both of the importance of contract in practical life, and of the growth of the corresponding general notion. alized We are now independent of forms of action. Trespass Rationand trover have become historical landmarks, and the version of question whether detinue is, or was, an action founded law of on contract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to (p) Except what may be implied from the technical rule that the word debet was proper only in an action for a sum of money between the original parties to the con- trespass. |