"rogues' gallery." The plaintiff was afterwards acquitted of the charge. Has he an action? (1900, State v. Clausnier, Ind., 57 N. E. 541; 1906, Schulman v. Whitaker, 117 La. —, 42 So. 227; 1909, Downs v. Swann, 111 Md. 73 Atl., collecting the cases.) The defendant's employee sent the following bogus telegram, purporting to come from the plaintiff: "To Mr. Gann: Be sure to go to Heidelberg; am on excursion there. Lola Mac." Has the plaintiff an action? (1901, Magouirk v. Tel. Co., 79 Miss. 632, 31 So. 206.) The plaintiff, as executor of the celebrated artist Whistler, sought to restrain the defendants from publishing verbatim certain letters of Whistler written to personal friends and obtained from such friends by the defendants. The defendants pleaded that they had been authorized by Whistler during his lifetime to write his biography and to use such information as they could obtain, and that they did not claim the right nor have the intention to publish the letters themselves, but did claim and intend to use the information contained in them. Is this defence valid? (Philip v. Pennell, 1907, 2 Ch. 577.) ESSAYS: Samuel D. Warren, Louis D. Brandeis, “The Right to Privacy." (H. L. R., 1890-91, IV, 193.) Augustus N. Hand, "Schuyler against Curtis and the Right to Privacy." (A. L. Reg., 1897, 36, 745.) Denis O'Brien, "The Right of Privacy." (C. L. R., 1902, II, 437.) NOTES: "Insults, malicious: no ground for action." (C. L. R., VIII, 147.) "Privacy; Right of." (C. L. R., IX, 641.) "Privacy, Right of: Nature and extent of the right." (H. L. R., as follows): "Basis and extent of the right of privacy." (IV, 193-220; XII, 270.) "Development of the law." (VIII, 280.) "Nature of the rights of relatives of deceased person." (IX, 354.) "Property right of person in publication of likeness." (XV, 227.) "Exhibition of statue." (V, 148.) "Exhibition of statue of plaintiff's deceased aunt." (IX, 354.) "Name and likeness of deceased person used as label for brand of cigars." "Operation in the presence of medical students." (X, 179.) "Publication of biography and sale of pictures of deceased person." (VII, 182.) "Publication of portrait with request to vote on most popular man." (VII, 425.) "Unauthorized published statements as to opinion of certain medicine.” (XII, 207.) "Unauthorized use of portrait for advertising purposes." (XV, 227.) "What constitutes infringement of the right." (X, 179.) "Infringement of the right: Unauthorized use of portrait for advertising purposes." (XVIII, 625.) "Right of Privacy; Breach of trust." (M. L. R., V, 378.)] BOOK II: THE CAUSATION ELEMENT INTRODUCTION: THEORY AND HISTORY 344. JOHN H. WIGMORE. A General Analysis of Tort Relations. (Harvard Law Review, 1895, VIII, 377.) II. THE CAUSATION ELEMENT IN A TORT The legal material involving the Causation element is much larger than that of the Damage element; but it is covered by a few broad principles. The general idea of Causation seems to involve in Anglo-American law three main notions: A. Causation, in general. We find, first, a fundamental notion that the defendant must have rationally caused the harm in question. This is to-day almost axiomatic; although in primitive and mediæval times many kinds of connection, short of rational causation by modern standards, sufficed to fix liability. The superstitious attitude of the period made accursed the man and the thing by whom the offence came, whether in strictness it was or was not caused thereby.' The accepted ethical axiom of to-day, Causation, rarely gives rise to legal difficulty in its application; except in one or two cases commonly treated under the law of Damages, e. g. whether a particular disease was caused by a carrier's negligence or by a surgeon's bungling, whether a loss of business profits was caused by alleged unlawful conduct or by external events, etc. It is mainly an issue of fact for the jury. A special problem is presented where several wrong-doers have co-operated and the apportionment of Causation to the real source is necessary; as where dogs of several persons combine in worrying sheep. Usually the knot is cut in Alexandrine fashion; as where the liquor-damage statutes provide that, during the period of disability of a father by intoxication to support his family, any liquor-seller furnishing liquor during that time shall be liable; or where the common-law principle makes any one of joint tort-feasors liable for the whole damage. B. Activity in Causation. Next we find a cardinal principle (not without exceptions) requiring that the person to be made responsible must be fixed with an initiating act or activity, an exercise of volition, remote or near, without which he cannot be brought to bar. This is the broader phase of the well-known principle that an action of tort does not lie for a mere nonfeasance. All the harm in the world may come to X, but Y cannot be made responsible unless we can fix upon him some active interposition. Thus, one who, as in Bentham's well 1 See the article on the History of Responsibility for Tortious Acts, in 7 Harvard Law Review, 315 ff. (reprinted in Select Essays in Anglo-American Legal History, Vol. III; in part quoted post, in No. 348). 2 It is a common error to suppose that "negligence," as the source of culpability, involves often or usually a mere omission, a not-doing as distinguished from positive doing in a careless way. But all negligence, in Torts, is founded ultimately on a doing an action. If the source is in appearance an omission, as known illustration, sees a man drowning and with power to save him fails to do so, or, as in the Roman Law glosses, sees an absent neighbor's windows open and perceives without preventing the deluge of the exposed rooms by a rainstorm, may stand idle and laugh with civil impunity at the harm which ensues. So also, one who is unwillingly carried upon another's land is not guilty of a trespass. We may or may not quarrel with this morality, but the notion is now a racial feature of our legal system. The application of it gives rise to little dispute, but there are one or two exceptions of policy which are to be noted. (1) The possession or ownership of real property often fixes a responsibility for harm where not a hand has been lifted by the defendant; thus, one who acquires land on which is a noisome pond or a tottering building may become responsible for harm caused thereby. Incidentally the distinction between owner and occupier may come into play. So also statutes fix civil responsibility upon municipal corporations for defective ways, etc., and statutes sometimes make the owners of buildings liable for disability caused by the sale of intoxicating liquors therein, though no active initiation can be brought home to the defendant. (2) There is perhaps a growing disposition to put a civil responsibility upon those who by nonfeasance allow others to suffer bodily harm, where the circumstances place the defendant in a peculiar relation of special moral duty — as where a brother allows a sister in the same house to starve. C. Culpability in Causation. But one is not made responsible even for every harm actively caused by him. To quote Mr. Justice Holmes again: "If running down a man is a trespass when the accident can be referred to the act of spurring, why is it not a tort in every case, as was argued in Vincent v. Stinehaur, seeing that it can always be referred more remotely to his act of mounting and taking the horse out? The reason is that if the intervening events are such that no foresight could have been expected to look out for them, the defendant is not to blame for having failed to do so. . . . If this were not so, any act would be sufficient, however remote, which set in motion or opened the door for a series of physical consequences ending in damage. The requirement of an act is the requirement that the defendant should have made a choice. But the only possible purpose of introducing this moral element is to make the power of avoiding the evil complained of a condition of liability, . . . to give a man a fair chance to avoid doing the harm before he is held responsible for it. . . . Accordingly it would be possible to state all cases of negligence in terms of imputed or presumed foresight." 1 ... (I) The phrasing and the application of this third element gives rise to the greater part of litigation in this field. The general question is, Where shall the line be drawn to express that relation between the defendant's conduct and where an engineer fails to ring the bell or to keep a lookout, it is reducible to a mismanagement, an improper doing. Speaking accurately, the term "negligence" expresses merely the relation between this original act and the harmful consequence, i. e. the probability of the harm; and therefore the culpability consists in putting one's hand to the deed (thus always an Action) in the face of this probability of harm. Mr: Justice Holmes has pointed this out long ago (Common Law, pp. 152, 161): "In all these cases it will be found that there has been a voluntary act on the part of the person to be charged. . . . It is necessary that he should have chosen the conduct which led to the harm. .. The philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been." 1 The Common Law, pp. 92, 95, 144, 147. the harmful consequence which fairness and policy regard as completing civil responsibility? Observe that it is a question of a relation. From the defendant's point of view, we are apt to speak of his "negligence;" from the standpoint of the harm done, we are apt to speak of a "natural" or "probable" consequence. But both of these terms, properly understood, are relative; at whichever standpoint we take, the harm must be viewed with reference to the conduct, and the conduct with reference to the harm. The further grouping of classes of cases under this head, with reference to the help to be gained by treating similar questions together, is an interesting subject, but one for which space does not here suffice. The general principle of the preceding paragraph - which may also be called Culpability, a term expressing the leading idea common to "natural,” “probable,” "ordinary," and the other words - suffers an important variation in two large groups of cases, in which the Court does not leave the application of the general principle to the jury, but declares the defendant culpable or not culpable by specific rules of law. Here it is no longer left as an open question for the jury whether the harm in question was the "natural and probable" or normal consequence of the defendant's conduct. The Court may declare once for all that certain harms are always to be regarded under certain circumstances as being or not being the normally apprehendible consequences of certain conduct; hence, given the conduct and the consequence, and the defendant is responsible, or not, without further inquiry. This is therefore, after all, not so much a variation from the principle of Culpability of Causation as a permanent reduction of the general principle to specific rules for specific cases. As Mr. Justice Holmes puts it: "There are also many cases in which the teaching of experience has been formulated in specific rules. . . . There is no longer any need to refer to the prudent man or general experience. The facts have taught their lesson, and have generated a concrete and external rule of liability. He who snaps a cap upon a gun pointed in the direction of another person known by him to be present is answerable for the consequences.” 1 (II) Remoteness. In the one class of cases, the Court rules that the consequence was too "remote." These rulings are precedents (as the verdicts of juries are not). Hence to the lawyer they become important. Such rulings have been made for every variety of harm and for numerous combinations of circumstances. If the ruling affirms "remoteness" in law, the defendant is exonerated as a matter of law. If the ruling denies "remoteness" in law, the defendant is not exonerated as matter of law, but the case goes to the jury to apply the general test of culpability to the circumstances, and they may or may not exonerate him. These rulings of law may be classified in several ways. The object should be to classify them so as to obtain the most value from analogies and thus to attain the greatest consistency. (III) Negligence per se. At the other extreme, the Court may rule that the harmful consequence was so obviously probable that the defendant is responsible as matter of law; hence, the case does not go to the jury for their application of the general test. In classifying these rules, we find three general sorts: (1) We find a number of miscellaneous general rules determined by the Courts from time to time. With reference to certain harms, the keeping of dogs, cattle, and other animals, the storing of explosives, the use of weapons, and other sorts 1 The Common Law, pp. 150, 152. of conduct, have been declared to be to some extent governed by this test. But the important thing to notice is that such rules may be formulated for responsibility for every kind of legal harm. In trespass and conversion, the question whether we walk on land and deal as owners with personalty at our peril; in libel, the question how far, with reference to inadvertent publication, we put defamatory statements on paper at our peril; in loss of service, the question how far we employ another at peril, with reference to a possible existing contract of his, for all the different kinds of harm the question may come up. These germane questions all throw light upon one another, and their consideration in one place helps us to discuss intelligently the comparative policies of different situations. (2) We have a principle of limited application that "unlawful" acts — signifying an illegality, usually statutory, independent of the question at issue - are done at peril. The application of this principle is attended with a looseness and a confusion with which we need not here try to deal. (3) In numerous cases, also, Courts are found ruling that on the facts of case the defendant is guilty of negligence as a matter of law. The difference between this and the preceding forms of the principle seems merely to be that the Court lays down no general rule for a class of cases, and does not intend to go beyond the complex of facts then before it. But the three forms shade off into each other at a point almost indistinguishable. Within these foregoing headings it seems that all genuine questions of Causation are included. 345. EDWARD WESTERMARCK. Origin and Development of Moral Ideas. (1906. Vol. I, pp. 30-70, in part.) [A study of the customs of primitive peoples and their conceptions of Revenge shows] that under certain circumstances, either in a fit of passion, or when the actual offender is unknown or out of reach, Revenge may be taken on an innocent being, wholly unconnected with the inflicter of the injury which is sought to revenge. . . . In such cases the whole group take upon themselves the deed of the perpetrator, and any of his fellows, because standing up for him, becomes a proper object of revenge. . . . But any consideration of guilt or innocence is overshadowed by the blind subordination to that powerful rule which requires strict equivalence between injury and punishment. . . . All these phenomena are so inseparably connected with each other that no one can say where one passes into another. Their common characteristic is that they are mental states marked by an aggressive attitude towards the cause of pain. . . Moral Indignation or disapproval, like [Revenge, which may be termed] Non-Moral Resentment, is a reactionary attitude of mind directed towards the cause of pain. . . . Moral Indignation resembles Non-Moral Resentment even in this respect that, in various cases, the aggressive reaction turns against innocent persons who did not commit the injury which gave rise to it. . . . And even Punishment, which, in the strict sense of the term, is a more definite expression of public, or moral, indignation than the custom of private retaliation, is often similarly indiscriminate. Like Revenge, and for similar reasons, Punishment sometimes falls on a relative of the culprit in cases when he himself cannot be caught. . . . In other cases an innocent person is killed for the offence of another, not because the offender cannot be seized, but with a view to inflicting on him a loss according to the rule of like |