- that is, although harm is done, and although there is no question as to a particular person's responsibility for it. These circumstances form limitations to the nexus as a whole.

There are, therefore, three distinct elements in every Tort, which may be conveniently termed the Primary, Secondary, and Tertiary limitations. The first class deals with the sort of harm to be recognized as the basis of the right; this may be called the Damage element. The second class deals with the circumstances fixing the connection of the obligor with this forbidden harm; this we may call the Responsibility element. The third class deals with the circumstances in which (assuming both the Damage and the Responsibility elements to be satisfied) the harm may be inflicted with impunity; this we may term the Excuse or Justification element. This analysis results in a tripartite division of the Tort-nexus.1

We may now examine this division in detail with reference to the various topics dealt with in our law. . .

I. The Damage Element. The question is here, What sorts of harm is it that the law recognizes as the subject of a claim for its protection? We have here nothing to do with the question, Who is responsible? or, Is X responsible? nor with the question, Is X, though responsible, here excusable? We may and do determine the limitations of the Damage element without regard to these questions. Of course, after determining that the one exists, we may then determine that the other does not; and cases are frequent in which two or even all of the questions are disputable, and must be settled before a final determination can be reached as to the existence of a claim, i. e. a nexus. But, whenever there is a decision upon the Secondary or the Tertiary limitations, it necessarily involves, by assumption or otherwise, the sufficient existence of the other element or elements; nor can a claim be sanctioned by a favorable decision as to the Damage element without an assumption as to the existence of the other two. Under the Damage element, of course, are to be considered physical injuries, what sort of physical or corporal harm may be the subject of a claim. Mere touching of the person may be, while mere touching of personal property once was not. Physical illness of course is. Whether nervous derangement may be, when not brought about through corporal violence, and whether mere fright, with or without corporal violence, may be, is still the subject of discussion. Forms of annoyance, such as disagrecable odors, sights, and sounds, are usually Mr. Justice Holmes (in an article of creative theory, combining profound insight with shrewd good sense, entitled "Privilege, Malice, and Intent," Harvard Law Review, 1894, VII, May) seems to show a belief in the propriety of this tripartite division; his language as follows, the passages being somewhat curtailed:

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(1) "I should sum up the first part of the theory in a few words, as follows. Actions of tort are brought for temporal damage. The law recognizes temporal damage as an evil which its object is to prevent or to redress, so far as is consistent with paramount considerations to be mentioned." (2) "When it is shown that the defendant's act has had temporal damage to the plaintiff for its consequence, the next question is whether that consequence was one which the defendant might have foreseen." (3) "The first [next] question which presents itself is why the defendant is not liable without going further. The answer is suggested by the commonplace, that the intentional infliction of temporal damage, as the doing of an act manifestly likely to inflict such damage and inflicting it, is actionable if done without just cause. . . . There are various justifications. In these instances, the justification is that the defendant is privileged knowingly to inflict the damage complained of."

said to be the subject of recovery only in connection with the ownership of real property. There must in all such cases be a degree of inconvenience worth taking systematic notice of. The content of the right to land is also here concerned, including the right against mere intrusion upon the air space, against the cutting off of surface or subterranean water, etc. The nature of the harm known as conversion must also be treated here. The social relations must be enumerated with which interference is forbidden, and the words known as libel and the words deemed slanderous per se are to be discussed. The facts vesting the rights of patent and copyright, and the matters as to which we have a "right to privacy," and several other modes of harm, involve also some statement of the Damage element.

II. The Responsibility Element. Assuming that the kinds of harm to be avoided or to be protected against have been determined, we have next to consider the Responsibility element, by defining what connection must exist between the obligor and the harm done, in order to bring him within the scope of the nexus. The question is, in a concrete case of the specified harm, what person, if any, shall be looked to as bound to bear legal responsibility for it.

no

This is not the place to attempt to define the order and nature of the topics that belong under this head. The doctrine of "acting at peril," the phrasing and application of the tests of "proximate cause," "reasonable and probable consequences," these, with their attendant refinements and exceptions, form the substance of the general topic. But the important circumstance to call attention to is that this topic has an application in the domain of each one of the common so-called Torts, conversion, defamation, loss of service, etc., less than in case and trespass. It has been customary to treat the subject of Negligence as if it were a specific injury by itself, instead of merely a question of Responsibility liable to arise in connection with various kinds of harm; but this obscures the true situation. Speaking roughly, a man may be made responsible for a given harm by initiatory action of one of three sorts: by acting (1) designedly, with reference to the harm; (2) negligently, with reference to it; (3) at peril, in putting his hand to some nearly related deed or some unlawful act. A part of the law is occupied with determining whether or not this last and strictest standard shall be applied; and when it is, no resort is needed to the second standard, negligence. Thus it happens that, as almost all direct dealing with personal property is done at peril, the question of negligence (or of knowledge) seldom arises in that connection. Yet it may arise; and thus, even though the treatment of the Responsibility element - mainly negligence and acting at peril — under the head of conversion is trifling in comparison with its place in injuries covered by trespass and trespass on the case, still it has its rightful place there as elsewhere. . .

III. The Excuse or Justification Element. Assuming that the various sorts of harm have been specified, and that the conditions and tests of Responsibility for them have been determined, the general limitations of Excuse under which the nexus exists still call for treatment. Perhaps the simplest illustration, if any is needed, is the excuse of self-defence. Here it is conceded that a harm has been done, otherwise the subject of recovery, and that a definite person is responsible for it; nevertheless no legal claim exists, because social experience prescribes limits to the nexus, and one of those limits is found in the circumstances briefly expressed in the term "self-defence." Here, again, it is impossible now to attempt an analysis of the various kinds of limitations. Only two or three suggestions can be made.

1. As a rule certain principles of pleading are based on the distinction between this element and the first and second, throwing on the defendant the business of making out the existence and the application of these limitations. For instance, justifications for a battery and privileges for defamation are left to the defendant to urge. . . .

2. Another application of the above distinction, similar but of larger moment, has been made by Mr. Justice Holmes in the article already referred to. He points out that the question of Malice, in connection with boycotts and similar interference with social relations, is not usually one of Responsibility, but of Excuse. We have the case of an inquiry conceded to be a harm and of a party conceded to be the source of it, i. e. we have the Damage and the responsibility elements satisfied; the problem is how to mark off the line of policy so as to determine where this harm may justifiably be inflicted with impunity.

One or two final implications of the recognition of this tripartite division of Tort may now be pointed out.

1. It calls to our attention the necessity, every day drawing nearer, of adjusting the treatment of our substantive law to the abolition, already largely accomplished, of the forms of action and classes of writs in Tort. As regards the distinction between Case and Trespass, there are of course two or three important marks left by it on the substantive law; e. g. the principle (justifiable, probably, on the highest grounds) that, of injuries to the person and to property, a mere touching is actionable if produced directly by the defendant, but not actionable if produced indirectly.... But the time must come when the sorts of actionable injuries will be classed according to an analysis of the essential qualities of the injuries, not the kind of writ employed by the clerks of the Chancery nor the analogies peculiar to a primitive legal condition; a time when further development can take place along these natural lines of classification and in view of the policy that may be appropriate to each situation. The recognition of the common Damage element in all Torts, and its separate treatment, will do much towards this end, in fact, necessarily involves it as an ultimate consequence. By this it is not meant to advocate a slighting of the forms of action and their historical development, either in treatises or in education. For the present generation at least this would be impossible, as well as unpractical in the highest degree. But there is no reason why we may not, so far as may be, recognize legal realities and put ourselves in the path of more scientific treatment.

2. A more important consequence of the recognition of the tripartite division is the helpful results to be reached by studying the different solutions of the same problems and the applications of the same principles in different torts. . . . Of course more writers than one have recognized the propriety of treating "Justifications" under one head; but they have regarded them as more or less appurtenant to specific injuries, instead of looking for whatever common element there might be and analyzing them with reference to each other as well as to the different injuries associated with them. The article by Mr. Justice Holmes suggests the practical usefulness of work in this direction.

It has not been possible in the allotted space to explain difficult points, or to anticipate questions and criticisms naturally raised by the subject. What has been written will serve, perhaps, as a suggestion for those who have come to believe that there is still room for a theory of the law of Torts which shall, in a greater degree than now, be built up inductively from the cases themselves and yet bear a scientific form.

BOOK I: THE DAMAGE ELEMENT

INTRODUCTION: FORMS OF ACTION; TRESPASS AND CASE

Topic 1.

Historic Significance of Forms of Action in General

3. SIR FREDERICK POLLOCK and FREDERIC WILLIAM MAITLAND. The History of English Law before the time of Edward I. (1895. Vol. I, pp. 115, 129, 174, 181; Vol. II, pp. 557-559, in part.) The reign of Henry II is of supreme importance in the history of our common law, and its importance is due to the action of the central power, to great reforms ordained by the king.1 . . . If we try to sum up in a few words those results of Henry's reign which are to be the most permanent and the most fruitful, we may say that the whole of English law is centralized and unified, by the institution of a permanent court of professional judges, by the frequent mission of itinerant judges throughout the land, by the introduction of the "inquest" or "recognition" and the original writ" as normal parts of the machinery of justice. We must speak briefly on each of these matters. . . . The king's courts have been fast becoming the only judicial tribunals of any great importance. Throughout the reign the bulk of their plea rolls increased at a rapid rate. Every term the bench at Westminster entertained a vast multitude of causes. The litigants who came before it were often men of lowly rank who were quarrelling about exceedingly small parcels of land. Though we hear some bad stories of corrupt and partial judges, it is plain that this powerful, central tribunal must have been well trusted by the nation at large. Rich and poor alike would go to it if they could. The local courts were being starved, and this result we can not ascribe altogether to the ambition or greed of the lawyers at Westminster. Of his own free will the small freeholder passed by his lord's court and the county court on his way to the great hall. He could there obtain a stronger and better commodity than any that was to be had elsewhere, a justice which, as men reckoned in those days, was swift and which certainly was masterful. . . . This principle is at work it is the king's business to provide a competent remedy for every wrong.3

Closely connected with the introduction of trial by inquest is the growth of that system of original writs which is soon to become that ground-plan of all civil justice. For a long time past the kings have at the instance of complainants issued writs, which either bade their adversaries appear in the royal court

As to Henry's reforms we have little to add to what has been said by Dr. Stubbs in the Introduction to the Gesta Henrici, vol. II, the Select Charters, and the Constitutional History.

2 Mat. Par. V, 213, 223, 240: charges against Henry of Bath; V, 628, against Henry de la Mare.

Bracton, f. 414 b: "pertinet enim ad regem ad quamlibet iniuriam compescendam remedium competens adhibere."

to answer the complaint, or else committed their causes to the care of the sheriff or of the feudal lord and commanded that right should be done to them in the county court or the seignorial court. Such writs were wont to specify with some particularity the subject-matter of the complaint. The sheriff, for example, was not merely told to entertain a suit which the abbot of Abingdon was bringing against the men of Stanton; he was told to do full right to the abbot in the matter of a sluice which, so the abbot alleged, had been broken by the men of Stanton. As the king's interference becomes more frequent and more normal, the work of penning such writs will naturally fall into the hands of subordinate officials, who will follow precedents and keep blank forms. . . . The number of writs which were issued as of course for the purpose of enabling those who thought themselves wronged to bring their cases before the law courts, increased rapidly during the reign of Henry III. A "register of original writs" which comes from the end of that period will be much longer than one that comes from the beginning. Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry's early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover by means of his writs. Some distinction seems to have been taken between necessaries and luxuries. A royal writ was a necessary for one who was claiming freehold; it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ. Elaborate glosses overlaid the king's promise that he would sell justice to none, for a line between the price of justice and those mere court fees, which are demanded even in our own day, is not very easily drawn. That the poor should have their writs for nothing, was an accepted maxim. The almost mechanical work of penning these ordinary writs was confided to clerks who stood low in the official hierarchy, to cursitors (cursarii); it consisted chiefly of filling with names and sums of money the blanks that were left in the forms that they found in their registers; but some clerk of a higher grade seems to have been responsible for every writ. . . . A classification of writs will be the outcome; some will be granted more or less as a matter of course, will be "brevia de cursu," writs of course; those which are directed to a feudal lord will be distinguished from those which are directed to a sheriff; those which bid the sheriff to justice, from those which bid him summon the defendant to the king's own court; those which relate to the ownership of land, from those which relate to debts. But the introduction of the possessory assizes gives to this system of writs a peculiar definiteness and rigidity. The new actions have a new procedure appropriate to them and are governed by carefully worded formulas. Thus the first writ issued in an assize of novel disseisin commands the sheriff to empanel an inquest in order that one precise question may be answered: - Did B unjustly and without a judgment disseise A of his free tenement in X since the king's last journey into Normandy? In countless points an action thus begun will differ from a proprietary action for land begun by a writ of right; both of them will differ from an action of debt, and even between the several possessory assizes many distinctions must

1 Harvard Law Review, III, 175.

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2 Excerpta e Rotulis Finium, I, 29, 49, 62, 68; Harvard Law Review, III, 12.

3 Fleta, p. 77.

Fleta, p. 77; Excerpta e Rotulis Finium, II, 101.

Fleta, p. 77-78.