suitors denied their rights, Mr. Bakewell shows that “All this elaboration of procedure is unsuited to the conditions under which the courts have to work." He goes on: "It must be remembered that English legal methods are a strange and unnatural importation into India; that Mufassal courts and practitioners know no other guide than the Code, and have none of the inherited course of practice which guides an English lawyer." He might go further and say that English rule is a strange and unnatural importation into India. The evil which he recognizes in the one case is but the outgrowth of the greater evil. Natural Law. Albert S. Thayer. This is a peculiar article which yet is not an article. There is enough matter in it for half a dozen dissertations upon the subject, and yet we are left with the sensation that we have had but the headlines for some dissertation yet to be written. Almost all the aphorisms which are given us are true,-on the surface, and therefore they are not, when we get beyond the surface, true at all. If one could stop anywhere long enough to take issue with the author it might be easy to show this, but the author does not stop anywhere and we must not refuse to go with him to the end. If we do so, we shall at least be amused and kept well interested on the way. 64 The American Law School. W. Jethro Brown. It is pleasant to be praised and it is much more pleasant to be praised intelligently. Mr. Brown has praised and he has praised very intelligently, for that reason when he has a criticism to make it should be listened to carefully. When he says that he "ventured to urge that there would be a real advantage in the presence in a law school of students who would uphold an ideal of knowledge alongside of the perhaps too powerful ideal of professional efficiency," he has to say that he could find no support for his views. In that he noted an error and that it was very evidently put lightly aside as no error, he shows the imperfection of the system which is good but which will not be good long if it has no wish to be better. A more general encouragement to American law students to prepare dissertations" would be a very good thing. Not only that they might be able to put their legal knowledge into shape, but that they might learn how to express any kind of knowledge. A degree from a law school, even the best, does not mean that the student has learned how to do this, that he has learned how to do it even fairly well, and this must seem to all outsiders a fault in their equipment, however it may seem to those on the inside. We are given a very fair, well-balanced statement as to the case law system" and its use in the various schools throughout the country. The conclusions to which Mr. Brown comes are probably correct, as there can be little doubt that some sort of a compromise will ultimately be effected between the extremists on the one side and those on the other. After an analysis of the subjects taken in the American law school Mr. Brown finds that it would be better, on the whole, if the theoretic subjects were given more attention in the American schools, and it is scarcely to be doubted that he is right in thinking that in this instance they have something to learn from the schools of England and the Continent. The article is one to render all who have to do with the making and management of American law schools profoundly grateful, both for the appreciation which is given to their labors and to the gracious manner in which the appreciation is given. THE BASIS OF AFFIRMATIVE OBLIGATIONS IN THE LAW OF TORT. To constitute actionable negligence there must concur three essential elements-a duty of care, a breach of that duty by negligent act or omission, and injury naturally resulting therefrom. The principles controlling the existence of the two latter have been formulated with some approach to exactness, the difficulty in regard thereto being as to their application to the particular facts of each case. It is surprising to find that every attempt to announce either judicially or in text-books any inclusive affirmative principle of the origin of the duty of care, the primary fundamental requisite, has been unsuccessful. In strictness, negligence is to be regarded as but one of the ways in which a legal duty could be violated and a wrongful injury caused.1 Negligent acts and negligent omission are met in all branches of the law-tort, contract, crimes. The conception of negligence as a distinctive wrong, the violation of a duty to act with average prudence, This is pointed out by Mr. Beven in the introduction to his masterly treatise on the subject. is quite modern. Originally certain acts, if done at all, were attended as a legal consequence by liability in a fixed amount for ary injury caused thereby, the amount varying according to the character of the injury and the social condition of the party injured, and sometimes according to the nature of the act. When for definite fines and the later appeals for murder and kindred writs were substituted the writ of trespass, the gist of the wrong still remained largely criminal. The writ was given in the King's court only because the King's peace was violated. The direct forcible nature of the violation rather than the amount of injury done, the private right violated, was the important thing. As trespass lost its semi-criminal aspect and became more and more a mode of obtaining private compensation, force in the sense of violent breach of the King's peace disappeared as a necessary element, it being only required that a private right had been directly violated. The view-point of the law was still very external, it was the act -the invasion of the right-that was important, not the motive or intent which prompted it, nor was it even important that the violator had been morally or socially innocent. Innocence of intention, propriety of conduct, was no excuse if an act was done directly invading a legal right. Such an act was in law a trespass, unless there existed such compulsion by superior irresistible force as to render the defendant rather the instrument than the actor.2 A further form of vis major came gradually to be recognized, the force of circumstances beyond the defendant's control. After Weaver v. Ward 3 the idea was current, if not indisputable, that a direct violation of a right could be excused by showing that it was unintentional and wholly without the actor's fault. Negligence, as that term is now understood, comes into play as an answer to this excuse. If due care be not taken, the injury has not occurred wholly without the actor's fault. The failure to take due care is such a fault as destroys the possibility of such excuse. * See Pollock on Torts, 160 to 175. Also for origin of the writ of trespass, Pollock and Maitland's History of the Common Law. The law at this stage may be stated thus: An act directly injurious was prima facie actionable, as excuse could be urged that the defendant had intended no violation of the plaintiff's rights, and had taken all reasonable precautions to prevent their invasion. As actions on the case were allowed to redress acts indirectly injurious, the same conceptions naturally extended to them. It is not surprising, therefore, to find that in the case in which occurs Baron Alderson's famous definition of negligence, the question presented was whether the injury was excused by precautions adequate under any expectable state of affairs, and that it has been customary to find the principles of liability for negligence stated restrictively and negatively rather than inclusively and affirmatively. It is comparatively easy to state restrictively the test to determine where no duty of care arises towards others; there can be no duty to act unless injury can be foreseen as likely to occur to some person or property if the act be not done, or to refrain from any act unless it threatens probable injury thereto. Brett, M. R. (afterwards Lord Esher), has in Heaven v. Pender 5 attempted to lay down an affirmative general rule as follows: "Whenever one person is placed by circumstances in such a position in regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such injury." However, the majority of the Court of Appeal, Cotton, L. J., Bowen, L. J., concurring, after citing many cases which negatived the existence of so wide a rule, decided the case on narrower grounds. And Brett, M. R., himself in Le Lievre v. Gould limits it as follows: 6 "If one man is near another or his property, a duty lies on him not to do that which may cause a personal injury to that other or may injure his property." Now it is Blythe v. Birmingham Water-Works, 11 Ex. 784. 'L. R. 11, Q. B. D. 503. noticeable that the instances which he gives of the application of this rule are cases presenting these following striking features. There is negligent action, an active negligent misfeasance, and, secondly, those to whom the duty is owed are either persons strangers to the defendant who forces himself into contact with them without their consent, often without their knowledge, or they are persons who in the exercise of their own legal rights are brought within reach of his conduct. On the other hand, it will be found that in the cases upon which the majority of the court proceeded in Heaven v. Pender, and, indeed, in all cases before and since which deny the universal application of Brett, M. R.'s, rule, there is to be found these elements: 1st. The negligence complained of is a failure to take affirmative precaution—a non feasance of a duty of care. 2d. The plaintiff has voluntarily placed himself within reach of the effects of the defendant's failure to take precautions. Often there exists a contract to which the plaintiff is not privy, requiring this very precaution to be taken. These cases usually deal with the obligations of the owners, possessors, and users of real and personal property, and those supplying information as the basis of others' actions, and those carrying on business. Is the rule in Heaven v. Pender, as limited to negligent acts, active misfeasance, a correct statement of the law, and is the existence of the other affirmative duties based on any broad general principles, or are there merely a number of fixed relations to which by custom or precedent have attached such duties for reasons peculiar to themselves? If the latter, the courts of to-day have but slight aid from the past in ascertaining the existence of such a duty in any of those new relations, those novel combinations of circumstances which the marvellous growth of modern science and business is constantly creating. While, as Mr. Justice Holmes says, "Ancient examples (of tort liability) are traced to rude conceptions which have given way in modern times to more or less definitely 'VII Harv. R. 552. |