rate indifferent. Whatever may or might be the case in other legal systems, the intention to violate another's rights, or even the knowledge that one is violating them, is not in English law necessary to constitute the wrong of trespass as regards either land or goods, or of conversion as regards goods. On the contrary, an action of trespass — or of ejectment, which is a special form of trespass - has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. "By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground, without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil" (f). Nor is this all; for dealing with another man's goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake (g). Still less will good intentions afford an excuse. I find a watch lying in the road; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle without lawful authority with land or goods that belong to others. And the same principle applies to rights which, though

(f) Per Cur. Entick v. Carrington, 19 St. Tr. 1066.

(g) See Hollins v. Fowler, L. R. 7 H. L. 757; 44 L. J. Q. B. 169.

60 Wis. 87; Cubit v. O'Dett, 51 Mich. 347; Hatch v. Donnell, 74 Me. 163; Newkirk v. Sabler, 9 Barb. 652.

not exactly property, are analogous to it. There are exceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may, in particular circumstances, be doubt what is mine and what is my neighbour's; but the law expects me at my peril to know what is my neighbour's in every case. Reserving the explanation of this, to be attempted afterwards, we pass on.

Wrongs of imprudence and omission. In Group C. the acts or omissions complained of have a kind of intermediate character. They are not as a rule wilfully or wantonly harmful; but neither are they morally indifferent, save in a few extreme cases under the third head. The party has for his own purposes, done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be 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 favorably 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.

Wrongs of imprudence and omission. For the authorities supporting the doctrine stated in the text, see post, pp. 533, 537.

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.

Relation of the law of torts to the semi-ethical precept alterum non laedere. We have, then, three main divisions of the law of torts. In one of them, which may be said to have a quasi-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 best-known 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 rela

(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 af

firmed by the House of Lords: Rylands v. Fletcher (1868), L. R. 3 H. L. 330; 37 L. J. Ex. 161.

Precepts. Honeste vivere (to live honorably), alterum non laedere (not to injure others), and suum cuique tribuere (to render to every man his due), were the three general precepts to which Justinian reduced the whole doctrine of the law. Black's Law Dic., p. 579.

tions. 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 neighbor." 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.

Historical anomaly of law of trespass and conversion. The real difficulty of ascribing any rational unity to our 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.

A right of property is interfered with "at the peril of 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.

Early division of forms of action. The truth is that we have here one of the historical anomalies that abound in English law. Formerly we had a clear distinction in the forms of procedure (the 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

(i) Compare the statement of "duty towards my neighbor," 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. . . ."

(k) Lord O'Hagan, L. R, 7 H. L. at p. 799.

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. But the distinction was in itself none the less marked.

Writs of right and writs of trespass: restitution on punishment. For assertion of title to land there was the writ of right; and the writ of debt, with its somewhat later variety, the writ of detinue, asserted a plaintiff's title to money or goods in a closely corresponding form (1). 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 comprehensive 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

(7) The writ of right (Glanvill, Bk. 1. 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," etc. The writ of debt (Bk. x. c. 2) thus: "Rex vicecomiti salutem: Praecipe N. quod iuste et sine dilatione reddat R. centum marcas quas ei debet, ut dicit, et unde queritur quod ipse ei iniuste deforceat. Et nisi fecerit, summone eum," etc. The writs of covenant and account, which were developed later, also contain the characteristic words iuste et sine dilatione.

(m) Blackstone, ill. 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 introduc. tion to Alfred's laws, copied from the Book of Exodus, is no real exception.