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"The History of Trover," 11 Harv. L. R. 277, 374.
"How far an Act may be a Tort because of the
Wrongful Motive of the Actor," 18 Harv. L. R.

"Law and Morals," 22 Harv. L. R. 97.
"The Law of the Airship," 4 American Journal of
International Law, 95.

"The Probable or the Natural Consequence as the
Test of Liability in Negligence," 49 Am. L. R. 79,
148 (1901).

"The Right to Recover for Injury Resulting from
Negligence," 50 Am. L. R. 141 (1902).
"The Basis of Affirmative Obligations in the Law
of Torts," 53 U. of Pa. L. R. 209, 2i7, 2>i7 (1905).
"Voluntary Assumption of Risk," 20 Harv. L. R.
14, 91 (1906).

"Contributory Negligence," 21 Harv. L. R. m

"The Moral Duty to Aid Others as a Basis of
Tort Liability," 56 U. of P. L. R. 217, 316 (1908).
"The Rule in Rylands v. Fletcher," 59 U. of Pa.
L. R. 298, 2^73, 423 (1911).

"Trade Organizations for the Collection of Debts
Due Members by Means of Boycott," 48 Am. L.
R. 691 (1900).

"Tort Lialiility for Nervous Disorder and Mental
Shock." 5 Col. L. R. 179 (1905).
"Malice and Unlawful Interference," 11 Harv. L.
R. 499.

"Summary Abatement of Nuisances by Boards of
Health," Comparative Administrative Law, Vol.
II, p. 163.

"Compensation for Property Destroyed to Stop
the Spread of a Conflagration." 1 111. L. R. 501.
"Some Observations on tlie Doctrine of Proxi-
mate Cause," 15 Harv. L. R. 541.
"Privilege, J^Ialice and Intent." 8 Harv. L. R. 1.
"Malice in the Law of Tort," 2 Northwestern L.
R. 65.




Lewis, William Draper,

ScHOFiELD, William,
Smith, Jeremiah,

Terry, Henry T.,

Veeder, Van Vechten,

Wigmore, John H.,

"Modern American Cases Arising Out of Trade
and Labor Disputes," 53 U. of Pa. L. R. 465.
"Motive in Trade and Labor Cases," 5 Col. L. R.

"Some Leading English Cases on Trade and La-
bor Disputes," 51 Am. L. R. 125.
"Strikes and Courts of Equity," 46 Am. L. R. 1.
"Davies v. Mann, Theory of Contributory NegH-
gence," 3 Llarv. L. R. 263.

"Conditional Privilege for Mercantile Agencies-
Macintosh V. Dun," 14 Col. L. R. 187, 296 (1914).
"Crucial Issues in Labor Litigation," 20 Harv. L.
R. 253, 345, 429.

"Disparagement of Property," 13 Col. L. R. 13,
121 (1913).

"Jones V. Hulton ; Three Conflicting Judicial
Views as to a Question of Defamation," 60 U.
of Pa. L. R. 365, 461 (1912).
"Legal Cause in Actions of Tort," 25 Harv. L. R.
103, 223, 303.

"LiabiHty for Negligent Language," 14 Harv. L.
R. 184.

"Liability of Landowners to Children Entering
Without Permission," 11 Harv. L. R. 349, 434.
"Proximate Consequences in the Law of Torts,"
28 Harv. L. R. 10 (1914).

"Absolute Immunity in Defamation," 9 Col. L. R.

"Freedom of Public Discussion," 27 Harv. L. R.

"History and Theory of the Law of Defamation,"
Select Essays in Anglo-American Legal History,
Vol. Ill, 446.

"A General Analysis of Tort Relations," 8 Harv.
L. R. 377.

"Contributory Negligence of the Beneficiary as a
Bar to an Administrator's Action for Death," 2
111. L. R. 487.

"History of the Law Regarding Interference with
Social Relations ; the Boycott as Ground for
Damages," 21- Am. L. R. 766.

"Responsibility for Tortious Acts; Its History,"
7 Harv. L. R. 405.

"The Tripartite Division of Torts," 8 Harv. L. R.




Part I

Trespass Vi et Armis.

The development of the EngHsh law is largely procedural. As
the parent tort action was that of trespass, it is necessary for the stu-
dent to know something of the origin and purpose of the writ of tres-
pass. To do this it is necessary to consider briefly the state of the
law anterior to it. For this purpose a number of extracts from Pol-
lock & jMaitland's History of English Law, Vol. II, chapter 8, are
given, which should be read as a whole. The larger part of the chap-
ter must, for the sake of brevity, be omitted, but certain conclusions
therein reached may be briefly stated as follows :

The earliest consequences legally attached to ofifences were: (i)
outlawry ; which put the offender at war with the community, it be-
coming the right and duty of every member thereof to pursue and
harry him, his'family and goods, as though he and they were wild
beasts, from which is derived the term for an outlaw capus lupus,
a wolf's head.

(2) The blood feud; in which the person oft"ended, his family,
sept or clan, was allowed to satisfy their vengeance upon the of-
fender, his family, sept or clan. - ^1^^ {-^

(3) In exceptional cases where the oflfence was peculiarly
against the community as a whole, as treason, cowardice, or those
violations of religious duties and prohibitions, which in primitive
times were regarded as bringing on the community the wrath of the
offended deity, there seems to have been a punishment inflicted di-
rectly by the community as a whole.

Except for this last class the early law knew no distinction be-
tween wrongs against the community, state or king, and wrongs
against an individual citizen or subject.

Even in the earliest records and codes of the Teutonic peoples



the blood feud and outlawry were to a large extent replaced by
elaborate tariffs and schedules of money compositions payable to
the various persons aggrieved. The sum payable to the individual
injured was by the Anglo-Saxons called a bot; the sum paid to the
community and in later times to the king for the injury to his or
its peace was called the wite. In addition other persons might be
offended, so the lord of a man slain obtained a sum called the
manbot. If the victim was within the peace of any individual, that
is, under his especial protection, as where a man was slain in the
house of another, such person received what was termed a gnobrice
for satisfaction to the injury to his dignity or peace.

As civilization progressed certain of the more serious offences
became unemendable, that is, incapable of expiation by a. rnoney
composition. Certain offences also came to be peculiarly within the
jurisdiction of the crown, whence the term "Pleas of the Crown."
Among the latter were for steal, or murder by ambush upon the
king's highway ; hamsocn, an attack on a man's house i the harboring
of an outlaw ; and breaches of military service.

Gradually the crown acquired jurisdiction over all the unemend-
able offences, which put the person and property of the offender at
the king's mercy, together with some others. Even m such cases,
however, the punishment of the offender was left to the initiative of
the individuals aggrieved, an appeal for felony was the regular and
usual method of reaching the felon. This appeal was prosecuted by
the parties aggrieved and the method of determining the guilt of the
accused was by trial by battle^

Even after offenders might be punished by presentment in the
king's court or in the local courts, or by indictment, the punishment
of offences primarily against the individual was still left to the
individual initiative of the persons aggrieved. The appeal of felony
persisted for some time ; and for years the redress and punishment
of minor offenses was left to actions of trespass brought by the
victims thereof.

Pollock and Maitland History of English Law, Vol. II, Chap.
8, p. 456 : "The writer of the Leges Henrici represents the criminal
law of his time as being in the main the old law, and we have no rea-
son to doubt the truth of wdiat he tells us. Some crimes are emend-
able, some are not. Unemendable are housebreach, arson, open theft,
that form of aggravated homicide which is known as open moras,
treason against one's lord, breach of the church's or the king's hand-
given peace when aggravated by homicide. These are emendable
with 100 shillings; breach of the king's special peace, obstruction
of the king's highway, forsteal, hamsocn, receipt of outlaws. In
some other cases the criminal must pay his zver; in some it is doubt-
ful whether any emendation need be accepted. About homicide we
have elaborate tidings. Clearly a mere wilful homicide, when
there has been no treachery, no sorcery, no concealment of the
corpse, no sacrilege, no breach of a royal safe-conduct, is not un-
emendable. It still, if not duly paid for, exposes the slayer to the
vengeance^of the slain man's kin. But it can be paid for. The tariff


however is now very cumbrous. In the simplest case there is the wer
of the slain, varying with his rank, to be paid to his kin ; there is
the manhot to be paid to his lord, and this varies with the lord's
rank ; there is the ivite to be paid to the king or some lord who has
regalia. But in all probability the offender will have run up a
yet heavier bill by breaking some grio ; the owner of the house will
claim a griohrice, the owner of the soken will claim a fyhtzvite or
blodtvite; happy will it be for our manslayer if he have committed
neither hdmsocn nor forstcal.

Now in England this elaborate system disappears with marvel-
lous suddenness.^ For it is substituted a scheme which certainly
does not err on the side of elaboration. In brief it is this : ( i ) There
are a few crimes with wide definitions which place life and limb in
the king's mercy. (2) The other crimes are punished chiefly by
discretionary money penalties which have taken the place of the old
preappointed wites, while the old preappointed hot has given way
to 'damages' assessed by a tribunal. (3) Outlawry is no longer a
punishment; it is mere 'process' compelling the attendance of the

Pollock & Maitland History of English Lazv, Vol. II, p. 510:
"When the felonies are put on one side, we find hardly anything
that can be called either a classification of punishable acts, or a
general doctrine about them. In later days, as is well known, the
following scheme is fashioned : —

Upon in-
Offences are) ^^'^^"^^^t
punishable j Upon summary




Then with the punishable offences we contrast the tort which
gives rise to a civil action, though the tort may also be, and very

^ When we first begin to get judicial records the change is already com-
plete. We have the utmost difficulty in finding a vestige of those preap-
pointed "emendations" which, if we believe the writers of the Norman age,
were still being exacted in their day. We can only remember one of the
old fixed fines that lived on. This is the fine of sixty shillings exacted from
the man who is vanquished in the judicial battle ; it is the "king's ban" of
the ancient Prankish laws. To this we may add that the London citizens of
the thirteenth century claimed as 'a chartered right that none of them could
be compelled to pay a higher fine than his zi'er of a hundred shillings, and
the Kentish gavelkinders still spoke of a man being obliged 'to pay his wer
in an almost impossible case. The change is not due to a substitution of
Norman for English law; we may see the preappointed bot in Normandy
when we can no longer find it in England. The most marvellous revolution
however is that which occurs in the law of homicide, for 'not only does wil-
ful homicide become a capital crime — this we might have expected to happen
sooner or later — but the kinsfolk of the 'slain lose their right to a zvcr and
to compensation of any sort or kind. A modern statute was required to give
the parentes occisi a claim for damages in an English court. Yet in many
parts of western Europe at a comparatively recent time men have sued for a
wer; nor only so, they have lawfully prosecuted the blood-feud.


often is, a punishable offence. Torts again fall into two classes, and
only those which involve some violence — the violence may be exceed-
ingly small — are known as trespasses."

"In the thirteenth century we see but the germs of this scheme.
Trespass (transgressio) is the most general term that there is; it
will cover all or almost all wrongful acts and defaults. Every fel-
ony, says Bracton, is a trespass, though every trespass is not a
felony. In a narrower sense therefore trespass is used as a contrast
to felonv. The word misdemeanor belongs as a term of art to a
much later age. In the past even the gravely punishable offences
have been contemplated from the point of view of the person who
has been wronged. Thus

( Felonies to be prosecuted by appeal.
Trespasses or wrong- J ....

f ul acts are \ Mere trespasses givmg rise to actions

{. in which no words of felony are used.

Only by slow degrees is the procedure which begins, not with the
complaint of 'the party grieved,' but with a communal accusation
(indictment or presentment), becoming a prominent part of the
law's machinery. Henry II. had it set going only against 'murderers,
robbers and thieves and the receivers of such.' In a later ordinance
he spoke of arson and forgery. It was not, as we have already seen,
even every felony that could be punished as a felony if there was
only an indictment. However, long before the beginning of Edward
I.'s reign, numerous offences that are no felonies are being punished
upon indictment or presentment, while many others are being pun-
ished in the course of civil actions. We shall perhaps breathe the
spirit of the age if we say that —

!(a) In civil actions,
(b) Upon presentment before local courts.
(c) Upon presentment before the king's

To this table we shall return, but meanwhile a few w^ords must
first be said of the punishments that are inflicted. These are in
the main two, namely, (I) amercement, (II) indefinite imprison-
ment redeemable by fine."

"Thousands of amercements are being inflicted by courts of all
kinds. The process is this: — So soon as the offender's guilt is
proved the court declares that he is in mercy {in misericordia). If
it be a royal court, he is in the king's, if it be a county court,
he is in the sheriff's, if it be a seignorial court, he is in the lord's
mercy. Thereupon, at least in the local courts, the offender 'waged'
an amercement, that is to say, he found gage or pledge for the pay-
ment of whatever sum might be set upon him when he should have
been amerced. For as yet he had not been amerced (amerciatus).
At the end of the session some good and lawful men, the peers of


the offender (two seem to be enough) were sworn to 'afifeer' the
amercements. They set upon each offender some fixed sum of
money that he was to pay ; this sum is his amercement {amercia-

Ibid., p. 512 : "The amercement marks an advance in the theory
and practice of punishment. A basis for arbitrary or 'unhquidated'
wites had thus been found, and in course of time men began to see
that arbitrary wites — if they be not oppressively used — are far more
equitable than the old fixed penalties. Account can now be taken of
the offender's wealth or poverty, of the provocation that has been
given him, of all of those 'circumstances of the particular case' that
the rigid rules of ancient law had ignored. So the misericordia,
when the central power is strong, begins to devour the old wites. "^

Ibid., p. 517: "We can now speak briefly of the offences that
were punished by amercement or by imprisonment, remembering
that as a general rule imprisonment really means fine. We have said
that there were three main modes of procedure."

"i. Offences punislied in the course of civil actions. Ever}^ tort,
nay, every cause of civil action, was a punishable offence. Every
vanquished defendant, even though the action was 'real' or was
contractual, had earned punishment. At the least he had been guilty
of an unjust detention (pro iniusta detentione). In the lower courts
he could only be — but he would be — amerced. But every defeated
plaintiff could be amerced 'for a false claim.' Incidentally too any
falsehood (falsitas), that is, any fraudulent misuse of the machin-
ery of the law, would be punished by imprisonment. Then again
every default in appearance brought an amercement on the defaulter
and his pledges. Every mistake in pleading, every miskenning or
stultiloqniiim, brought an amercement on the pleader if a mistake
was to be retrieved. A litigant who hoped to get to the end of his
suit without an amercement must have been a sanguine man ; for he
was playing a game of forfeits."

"2. Offences punished upon presentment in the local courts.
The process of presentment in the local courts, was introduced by
Henry II. for the purpose, it seems, of collecting accusations of grave
offences. But the sheriff' in his 'turns,' the lord of the franchise in
his 'leets' came to demand information about any matter that con-
cerned the king's right or his peace. Also they ask for charges of
minor offences which are dealt with on the spot by a summary
proceeding leading to amercements. "There are minor acts of vio-

* "We hear of attempts to establish some fixed maximum for the amerce-
ment. Becket alleged that there was such a maximum in every count}*, and
that the law of Kent knew no amercement higher than forty shillings. In
both the England and the Normandy of Glanvill's day the rule had grown
up that the amercement was to be 'affeered' by the oath 'of lawful men. The
oldest Norman customal is very instructive, for it still regards this punish-
ment as being in strictness a forfeiture of all chattels. The function of the
sworn affeerers is to declare what goods the offender has. In the case of a
knight the duke is to have all, except liis arms, destrier, palfrey and rouncey,
his ploughs and beasts of the plough, his seed-corn and victuals enough for
a year. So too the roturier's victuals, team and arms are spared. But there


lence, brawls, affrays, bloodshed. In the seignorial courts the pre-
sentment was used indiscriminately^ as a means of punishing all the
small breaches of peace and order, even abusive words and all
breaches of manorial custom ; it gave the lord a tight grip on his
villien tenants."

"3. Offences punishable upon presentment before the king's
justices. The justices in eyre (on their circuits) carry with them
a constantly growing list of interrogatories addressed to the local
jury" — as to the felonies committed, as to the king's proprietary
rights (where information alone is wanted), as to assumption or
abuses of franchises, upon which writs of quo zvarranto may after-
wards issue and as to the misdoings of royal offices, sheriffs, cor-
oners and bailiffs. "Only by slow degrees and in a hap-hazard way
do any inquiries about ordinary and non-official crimes that are less
than felonies steal their way into the articles."

"Useful though this laborious scheme of presentments may
have been, — useful because it revealed abuses, because it served as
a check upon sheriffs and lords, because it reminded every man of
his always neglected police duties — the law did not place much re-
liance upon it as an engine of punishment. We are now in the
act of passing from the sphere of criminal to that of civil justice,
and therefore let us notice that under Edward I. a favorable device
of our legislators is that of giving double or treble damages to 'the
party grieved.' They have little faith in 'communal accusation' or in
any procedure that expects either royal officials or people in general
to be active in bringing malefactors to justice. More was to be
hoped from the man who had suffered. He would move if they
made it worth his while. And so in a characteristically English
fashion punishment was to be inflicted in the course of civil actions ;
it took the form of manyfold reparation, of penal and exemplary

"But we have gone too fast. An 'action for damages' was a
novelty. By an action for damages we mean one in which the plain-
tiff seeks to obtain, not a fixed bot appointed by law, but a sum of
money which the tribunal, having regard to the facts of the par-
ticular case, will assess as a proper compensation for the wrong-
that he has suffered. We repeat that this was a novelty. We may

also seem to be maximum amercements varying with the wrong-doer's rank;
the baron will not have to pay more than one 'hundred pounds, nor the
roturier more than five shillings. Parallel to this lies the famous passage in
Glanvill which saves for the amerced his* 'honourable contenement.' Then
the Great Charter decreed that all amercements were to be set or 'affeered'
by good men of the neighborhood; that earls and barons 'were to be amerced
by their peers ; that amercements should vary with the gravity of the offence ;
that the knight's contenement, the merchant's merchandise, 'the villein's wain-
age should escape. The amercement became the most flexible and therefore
it could be the smallest of all punishments. Three-penny amercements were
common in the local courts."

' See Pollock & Maitland, "History of the English Law," vol. 1, p. 577,
as to the jurisdiction of such courts over complaints of individuals aggrieved,
see p. 574-5.


doubt whether Glanvill ever presided at the hearing of such an

"This may for a moment seem stran.c^e. In later days we learn
to look upon the action for damages as the common law's panacea,
and we are told that the inability of the old courts to give 'specific
relief was a chief cause for the evolution of an 'equitable jurisdic-
tion' in the chancery. But when we look back to the first age of
royal justice we see it doing little else than punishing crime and
giving 'specific relief.' The plaintifif who goes to the king's court
and does not want vengeance, usually goes to ask for some thing of
which he is being 'deforced.' This thing may be land, or services,
or an advowson, or a chattel, or a certain sum of money ; but in any
case it is a thing unjustly detained from him. Or, may be, he de-
mands that a 'final concord' or a covenant may be observed and
performed, or that an account may be rendered, or that a nuisance
may be abated, or that (for sometimes our king's court will do
curiously modern things) a forester may be appointed to prevent
a doweress from committing waste. Even the feoffer who fails in
his duty of warranting his feoffee's title is not condemned to pay
damages in money ; he has to give -equivalent land. No one of the
oldest group of actions is an action for damages,"*

"But there is one all-important action that is stealing to the
front, the action of trespass {de transgressionc) against those who
to a plaintiff's damage have broken the king's peace with force and
arms. Though early precedents may be found for it, this fertile
mother of actions was only beginning her reign in the last years of
Henry III, Her progeny throve and multiplied, until a time came
when, the older forms have been neglected, an action for damages,

*"But further the practice of giving damages, even as a supplement for
specific relief is one that we may see in the first stage of its growth. It makes
its appearance in an influential quarter, in the popular assize of novel dis-
seisin. Glanvill's text shows us the embryo. The writ which begins the
action commands the sheriff 'to cause the tenement to be reseised of the chat-
tels taken in it' by the disseisor, and 'to cause the tenement with the chattels
to be in peace' until the hearing of the cause. So the disseisee is to recover
the chattels as well as the land of which he has been dispossessed; but even
this is specific relief. We further learn, however, that the disseisee can ob-
tain the "fruits' of the tenement from the disseisor, and we are left to imagine
that, if he can not get the corn or hay itself, he may be able to get money
instead. In a few years all had changed ; Bracton has noticed the change.
The sheriff was no longer e.xpected to 'reseise the tenement' of the abstracted
chattels : the recognitors in the assize were being told to estimate in money
the dampna which the disseisee had suft'ered. Along with the land he now
'recovered' a sum of money assessed as a compensation for the wrong done
him. Long the novel disseisin remained the only action in which both land
and damages could be obtained ; slowly in the course of the thirteenth cen-
tury our legislators multiplied the cases in which this double remedy was to
be had.

"When the sacred 'freehold' was not concerned the hands of the justices
were freer. They could award damages as a subsidiary remedy in actions of
detinue, debt and the like. The assize of novel disseisin suggested to them
a method of assessing pecuniary compensation — the verdict of a jury. To
find the exact place at which they first crossed the narrow line which divides

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