comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the writ of right and its kind. Not only was the writ of right first thrust into the background by the various writs of assize-forms of possessory real action which are a sort of link between the writ of right and the writ of trespass - and then superseded by the action of ejectment, in form a pure action of trespass; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case (o). In this way the distinction between proceedings taken on a disputed claim of right, and those taken for the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed; and therefore, as the distinction of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was transferred, in forensic usage and thence in the traditional habit of mind of English lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor's intention; hence the archaic law of injuries is a law of absolute liability for the direct consequences of a man's acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the law of wrongful injuries for trying what were really questions of absolute right; and that practice again tended to the preservation

(0) For the advantages of suing in case over the older forms of actions, see Blackstone, ili. 153, 155. The reason given at p. 152 for the wager of law (as

to which see Co. Litt. 295 a) being allowed in debt and detinue is some one's idle guess, due to mere ignorance of the earlier history.

of these same archaic ideas in other departments of the law. It will be observed that in our early forms of action contract, as such, has no place at all (p); an additional proof of the relatively modern character both of the importance of contract in practical life, and of the growth of the corresponding general notion.

We are now

Rationalized version of law of trespass. independent of forms of action. Trespass and trover have become historical landmarks, and the question whether detinue is, or was, an action founded on contract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts (q). It would seem, therefore, that a rational exposition of the law of torts is free to get rid of the extraneous matter brought in, as we have shown, by the practical exigency of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grounds for the place and function of the law of trespass to property in the English system. It appears morally unreasonable, at first sight, to require a man at his peril to know what land and goods are his neighbour's. But it is not so evidently unreasonable to expect him to know what is his own, which is only the statement of the same rule from the other side. A man can but seldom go by pure unwitting misadventure beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but for causes deemed by him sufficient, he is content to abide (or perhaps intends to provoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with

(p) Except what may be implied from the technical rule that the word debet was proper only in an action for a sum of money between the original parties

to the contract: F. N. B. 119; Blackstone,

iii. 156.

(q) Bryant v. Herbert (1878), 3 C. P. Div. 389, 47 L. J. C. P. 670.

moral justice of being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, or else it involves the conscious acceptance of a risk. A form of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship. One can only say that they are thought too exceptional to count in determining the general rule of law. From this point of view we can accept, though we may not actively approve, the inclusion of the morally innocent with the morally guilty trespasses in legal classification.

Analogy of the Roman obligations ex delicto. We may now turn with profit to the comparison of the Roman system with our own. There we find strongly marked the distinction between restitution and penalty, which was apparent in our old forms of action, but became obsolete in the manner above shown. Mr. Moyle (r) thus describes the specific character of obligations ex delicto.

"Such wrongs as the withholding of possession by a defendant who bona fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes; they give rise, it is true, to a right of action, but a right of action is a different thing from an obligatio ex delicto; they are redressed by mere reparation, by the wrong-doer being compelled to put the other in the position in which he would have been had the wrong never been committed. But delicts, as contrasted with them and with contracts, possess three peculiarities. The obligations which arise from them are independent, and do not merely modify obligations already subsisting; they always involve dolus or culpa; and the remedies by which they are redressed are penal."

(r) In his edition of the Institutes, note to Bk. iv. tit. 1, p. 497.

Dolus and culpa. The Latin dolus, as a technical term, is not properly rendered by "fraud" in English; its meaning is much wider, and answers to what we generally signify by "unlawful intention." Culpa is exactly what we mean by "negligence," the falling short of that care and circumspection which is due from one man to another. The rules specially dealing with this branch have to define the measure of care which the law prescribes as due in the case in hand. The Roman conception of such rules, as worked out by the lawyers of the classical period, is excellently illustrated by the title of the Digest " ad legem Aquiliam,” a storehouse of good sense and good law (for the principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has received. It is to be observed that the Roman theory was built up on a foundation of archaic materials by no means unlike our own; the compensation of the civilized law stands instead of a primitive retaliation which was still recognized by the law of the Twelve Tables. If then we put aside the English treatment of rights of property as being accounted for by historical accidents, we find that the Roman conception of delict altogether supports (and by a perfectly independent analogy) the conception that appears really to underlie the English law of tort. Liability for delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them (dolus), or of a failure to observe due care and caution which has similar though not intended or expected consequences (culpa).

Liability quasi ex delicto. We have, moreover, apart from the law of trespass, an exceptionally stringent rule in certain cases where liability is attached to the befalling of harm without proof of either intention or negligence, as was mentioned under Group C of our provisional scheme. Such is the case of the landowner who keeps on his land an

artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reservoir there, but the law says he must do so at his own risk (s). This kind of liability has its parallel in Roman law, and the obligation is said to be not ex delicto, since true delict involves either dolus or culpa, but quasi ex delicto (t). Whether to avoid the difficulty of proving negligence, or in order to sharpen men's precaution in hazardous matters by not even allowing them, when harm is once done, to prove that they have been diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similar liability is a very ancient part of our law. Whatever the original reason of it may have been as matter of history, we may be sure that it was something quite unlike the reasons of policy governing the modern class of cases of which Rylands v. Fletcher (u) is the type and leading authority; by such reasons, nevertheless, the rules must be defended as part of the modern law, if they can be defended at all.

Summary. On the whole, the result seems to be partly negative, but also not to be barren. It is hardly possible to frame a definition of a tort that will satisfy all the meanings in which the term has been used by persons and in documents of more or less authority in our law, and will at the same time not be wider than any of the authorities warrant. But it appears that this difficulty or impossibility is due to particular anomalies, and not to a total want of general principles. Disregarding those anomalies, we may

(s) Rylands v. Fletcher, L. R. 3 H. L. 330, 37 L. J. Ex. 161.

(t) Austin's perverse and unintelligent criticism of this perfectly rational terminology has been treated with far more respect than it deserves. It is

true, however, that the application of the term in the Institutes is not quite consistent or complete. See Mr. Moyle's notes on I. iv. 5.

(u) L. R. 3 H. L. 330. See Ch. XII. below.