has not been worked out directly on the side of rights, and not, in terms, even on the side of the violation of rights, but on the side of duties, the counterpart or correlative of rights; that is, the law of torts has been worked out in terms of breach of duty. It comes to the same thing indeed; A's rights furnish the measure of B's duties, and breach of duty, as actionable tort, consists in violation of right paramount. But the law should be set forth and its terms defined as the law has been worked out. How then should the term 'tort' be defined as a growth and product of the English law?

§ 2. DEFINITION OF TORT: ANALYSIS OF DEFINITION.

The definition now sought for is something more concrete than anything yet stated; it must stand to what has gone before as species to genus, for a crime as well as a tort consists in the violation of a right paramount, and though it is easy to say that a crime leads to punishment, while a tort leads to damages, still it will be necessary, if possible, to frame a definition of tort in full, and with reference to the actual course of the law.

It must not be supposed that a definition of the kind can be framed which of itself will be sufficient to explain the term 'tort' fully to one first approaching the subject. Indeed, no definition, helped out even by labored explanation, can convey a full conception of the meaning of such an expression as 'the law of torts;' nothing short of careful study of the specific torts of the law will suffice. The difficulty grows out of the fact that there is no such thing as a typical example, an actual tort, that is to say, which contains all the elements entering into every other. One is as perfect as another; and each of the torts of the law differs, not merely in point of fact from the rest, but in its legal constituents as well. For

tunately, however, we have seen that all torts contain a common element; and that must of course furnish the basis of a definition. That element is breach of duty paramount, in other words breach of duty fixed by municipal law. Accordingly a tort may be said to be a breach of duty fixed by municipal law for which a suit for damages can be maintained.1

Each of the parts of the definition, however, needs explanation; to which end an analysis of the definition will be helpful.

Consider then in the first place the phrase 'breach of duty.' What does that mean? The general answer plainly is, it means the invasion of a legal right, without just cause or excuse; there can be no tort where, for that which was done or omitted, there was just cause or excuse. But A does not learn what his duty to B is by being told that he must not invade B's rights, though he understand the meaning of rights; he has still to learn in what A's rights, as matter of fact, consist. What then is meant by duty? Something surely which one can perform; it must therefore spring from observable facts, suggesting danger, and harm as probable or in natural. course. If danger is not observable in this sense, by a man of fair intelligence, or, as he is often called in the law books, by the average man, he is under no duty in the case; if it is so observable, a duty ordinarily arises. When A is situated towards B so as to be able to see that harm is likely to come upon B by conduct of himself (A) for which there is no just cause or excuse, 2 A understands B's rights in the concrete case, with one exception, and he must govern himself accordingly.

1 A crime may correspondingly be defined to be a breach of duty fixed by municipal law for which the offender may be punished by imprisonment, fine, or forfeiture.

2 Infra, p. 12, note 2.

Duty is here generalized in its broadest terms, for all kinds of tort except malicious prosecution. To attempt specific statement, by undertaking to say what kind of conduct one should observe, or refrain from, would be vain. Duty in the law of torts is of varying kinds, and there is no specific factor com.mon to these various phases, whether motive, intention, or manifestation; what would constitute specific duty in one case would not constitute it in another. Still the various kinds of duty involved in the different torts are capable of being grouped into some three classes, upon an instructive basis. It will be convenient to state these in terms of 'breach of duty,' as in the definition.

In one of these classes the breach of duty is stated in terms apparently significant of an actively guilty state of mind. This phase of the breach of duty may be manifested in either of two forms; in one, the breach consists in the doing an act fraudulently; in the other, in doing it maliciously. And without the facts upon which the conception of fraud or malice is predicated, there is no redress in damages; that is, there is no tort.

It should be said, however, and the fact should be well observed, that the legal way of stating a conclusion from facts is here and elsewhere often stronger than the facts in themselves would seem to justify. The law looks much to manifestations, and then, it may be, declares that they show fraud, or malice, or negligence, and will hear no denial while the particular facts stand. In other words, the law often makes use of terms in a technical sense, that is, in a sense more or less different from that in which they are used in ordinary speech. The law has a dictionary of its own.

Subject to this observation, fraud or malice must then be said to be an element of the right of action in the

1 This tort requires want of cause and malice. Chapter i

first class of cases. But it may be observed that, while the law of torts presents a clear conception of fraud, it has not determined, with precision, what constitutes malice.1 As yet it is only feeling its way, but in the direction of treating certain violations of right, - of which interference with contract furnishes an example, for which there is no just cause or excuse, as malicious.2 The word 'malice' therefore is becoming a highly technical term. But it would not be right to suppose that adding malice to every case of damage would create a right of action; all that can be said, perhaps, is this, that in cases in which conduct would be wrongful but for some paramount privilege, proof of malice will overturn the privilege and give a right of action. Even this, put as a general principle of tort, and not as a special doctrine of defamation, must be taken as a cautious and tentative statement. In this view malice will overturn privilege, but not right.*

8

Fraud as a necessary element of liability in actions

1 See chapter ii. § 4. This, however, may be said, that malico may be found either in the wrongful motive, or, in many cases, in a wrongful act whatever the motive. Possibly it may have different meanings in different connections, as it has in the criminal law.

2 See e. g. Walker v. Cronin, 107 Mass. 555; Cases, 102; Mogul Steamship Co. v. McGregor, 1892, A. C. 25; 23 Q. B. D. 612-615, Bowen, L. J.; Cases, 80, and note, 99. But there will be difficulty still in determining what constitutes just cause or excuse. In the case of property the general tendency of legal theory is towards considering that one's right of user should not be fettered by requiring that it should not be exercised maliciously. Frazier v. Brown, 12 Ohio St. 294; Cases, 360; Bradford v. Pickles, 1895, A. C. 587, affirming, 1895, 1 Ch. 145. That is, the right of user would 'excuse' a malicious use of property. But see Swett v. Cutts, 50 N. H. 439; Cases, 376. 8 See preceding note, as to property.

4 See an article by Mr. Justice Holmes on Privilege, Malice, and Intent, in Harvard Law Review, April, 1894. Using one's land is not privilege, but right; hence malice, under the proposition of the text, will not make the user wrongful. As to privilege paramount, see § 3, post.

2

for tort is confined almost entirely to cases of misrepresentation; malice is a necessary element in actions for malicious prosecution, slander of title so-called,1 and for interfering with contract; it is also inseparable from unlawful conspiracies. Malice, further, may become a turning-point in actions for defamation, upon a defence that the occasion of the publication made it presumptively lawful; but its presence or absence is immaterial to the right of action itself.3

Another step will bring the student to a class of cases in which, though there is often a manifest intention on the part of the defendant to do the very thing for which he has been sued, the law ordinarily takes no account of his motive or state of mind, supposed or actual, so far as the right of action is concerned. The plaintiff's right of redress no longer depends upon his showing, in any way, that the defendant did the act in question from wrongful motives, or, generally speaking, even intentionally; and hence the want of such motives, or of intention, is no defence. Nor indeed is negligence, or the want of negligence, any necessary part of the case.

Here, then, is a class of cases in which the tort consists in the breach of what may be called an absolute duty; the act itself (in some cases it must have caused damage) is unlawful and redressible as a tort. The cases in which this is true are, speaking generally, cases of violence apparently about to be committed, or actually committed, upon one's person," restraint of liberty," interfering with the relation of master and servant with 1 This subject, however, belongs on the whole to fraud, as will be seen in chapter i.

2 See chapter iv.

4

8 Actions for defamation (slander or libel) may thus be treated as marking a transition from the first to the second phase of tort.