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scanty contents (e. g., the Law of Marriage and Divorce) would appear to fall almost as fitly under Public as Private Law. The Law of Guardianship, for example, which bulks so largely in Continental systems, is, in English Law, a mere fragment. This fact is commonly explained, in the writings of English jurists, by a reference to the completeness and efficiency of the peculiarly English Law of Trusts. But this explanation does not carry us very far. Why does English Law leave to the Law of Trusts the regulation of those important matters which, in most systems of law, are governed by the Law of Guardianship? Is it not significant that, while the Law of Guardianship is what may fairly be called a compulsory system, in which the conduct of the guardian is directed and controlled by the authority of the State, the Law of Trusts is a voluntary system, in which the duties of the trustee and the rights of the beneficiaries are prescribed (sometimes very minutely) by the founder of the trust? It is, no doubt, true, that English Law, in that special department of it known as 'Equity,' has laid down an elaborate system of rules for enforcing the administration of trusts; but these are, substantially in every case, 'subject to the provisions of the settlement.'
Again, it was actually suggested by one of the authors of the Digest, that a complete statement of English Family Law would include the Law of Intestate Succession; and there is, obviously, much to be said for this view. But, apart from the inconvenience of abandoning traditional arrangements, it was felt by the editor that the adoption of this suggestion would really tend to obscure one of the most striking peculiarities of English Law, viz., the unfettered testamentary power wielded by the English parent. Whatever may be the case in systems which have preserved a law of legitim, which prevents a parent disinheriting his family without due cause, in English Law intestate succession is, both in theory and practice, at the present day, merely a provision for the careless or unfortunate person who dies without leaving a valid will. It is only in the last resort, that the provisions of the Inheritance Act and the Statutes of Distribution are prayed in aid. The fate of Faulkes de Breanté has been laid to heart by the English nation.?
6 DIGEST, Bk. IV, Sect. II, Tit. III and IV (42 $8).
Once again, we may note, that English Family Law is not only very scanty, but, comparatively speaking, very modern. Apart from the well-known provision of the Statute of Merton (1235) on the subject of post-legitimation, and that of the Statute of Marlborough (1267) on waste by guardians, there is practically no statute law of any importance in this branch until we come to the Reformation, with its quarrels over Church jurisdiction, and the establishment of the Poor Law system under Elizabeth.10 Even these important changes were, as has been before hinted, effected far more in the interests of the community as a whole than of the members of the family, or even of the family as a unit. Not until the definite putting away of feudalism at the Restoration, and the subsequent laborious reconstruction of society on a contractual basis, do we begin to get a real development of Family Law; and by that time the Trust is too firmly fixed an institution to give way before general rules. Indeed, the subsequent sweeping away of the few restrictions on testamentary power which still survived from the Middle Ages seemed but to emphasize the emancipation of the family from the bonds of law.11
What is the explanation of this peculiarity of English Law? It is customary to attribute it to the legendary ‘individualism' of the English character; and it may be that, when we come to dig a little deeper into the foundations of English Law, we shall have to allow some ultimate weight to this alleged psychological element. But is there not a more definite historical explanation, which will at least suggest proximate causes?
We know too little at present of pre-Norman English Law to dogmatize about social conditions before the Conquest; but we shall probably not be far wrong in assuming that the typical patriarchal household, with its apparent despotism strongly fettered by local custom, prevailed largely amongst English folk of that time. It seems to be very doubtful whether any but privileged persons could make wills; and what little we know of the Anglo
8 20 HEN. III, cap. 9. 52
HEN. III, cap. 17. 10 The writer does not forget the provisions of the Statute of Westminster II (1285) on the subject of 'ravishment of ward.' But these, though technically unrepealed, have long been obsolete.
11 See the writer's SHORT HISTORY OF ENGLISH LAW (Little, Brown & Co.), pp. 273-74.
Saxon law of inheritance and succession, leads us to suppose that it provided carefully for an adjustment of family claims. 12
But this system, whatever it was, received a rude shock from the feudal influences of the Conquest, with their strong preference for the single heir; and there seem quite substantial reasons to believe that, for at least a century after the Battle of Hastings, the Norman lawyers succeeded in subordinating to him the claims of the family on the death of its head, not merely as regards land (for which there were some military reasons) but as regards chattels as well.13 The natural consequence of such an extreme application of the doctrines of feudalism was to produce a violent struggle for the right of testation; and, so far as chattels were concerned, this struggle appears to have been successful (mainly through the help of the Church, which, for its own reasons, favoured it) by about the end of the twelfth century. It is common knowledge that, as regards land, the struggle was more prolonged, and that a formal victory was not achieved until the Reformation. But, at least a century earlier, the position had virtually been carried by insidious sapping, through the medium of uses; and the result of the long struggle seems to have produced a rule as extreme in another direction as that which it had superseded. Only by virtue of a few local customs which (as mentioned) were swept away in the eighteenth century, was there any restriction left, after 1660, on the victorious power of testation.
If the English Law of Torts is less fragmentary than Family Law, it cannot be described as highly developed or scientific. English Law evidently believes in the existence of a certain class of wrongs which give rise to actions for damages calculated on common law principles, but which are neither breaches of contract nor of trust. The devastavit of the personal representative is also (probably) not, technically, a tort, because it was originally an ecclesiastical offence; though the same may also be said of slander, which now ranks as a tort. But of any substantive definition of a tort English Law is still innocent. It is at present only in the pre
12 The evidence comes chiefly from the surviving rules of gavel-kind, 'boroughEnglish,' and local customs generally.
13 SHORT HISTORY OF English Law, pp. 61-65. Doubtless the heir was expected (as the Assise of Northampton puts it) to ‘make the division of the deceased.' But his power must have been great.
liminary stage, in which it says, this act or that is a tort, this or that is not. It is in the position of the rustic who knows by experience that the ale at certain houses is good; but, not being able to read the signs, does not connect this experience with the fact that all these houses supply X.'s ale.
Again, the Law of Torts, though it will always award 'damages' (i. e., pecuniary compensation for damage) to a successful plaintiff, does not always require, as an essential to the plaintiff's success, that he should have suffered 'material damage in fact.' There are some torts which are actionable per se; that is to say, there are acts which entitle certain persons to sue for damages, though they have not, in fact, suffered damage from them. This kind of tort is usually, in Continental systems, treated as an adjunct of the criminal law, in which the partie civile is allowed to appear alongside the public prosecutor and put in a subsidiary claim for damages.14 And, therefore, the English Law of Torts, incomplete though it be, is, generally, more comprehensive and detailed than the corresponding branch of Continental systems. But still, even in this connection, it does not say that every crime is a tort against any person who may have directly suffered by it. Thus, if A. forges B.'s signature, B. has no action against A.; even though B. may, in fact, have been seriously damaged by the crime. On the other hand, every unlawful assault is both a tort and a crime by English Law; though, again, every trespass to land 15 or chattels is not, albeit the origin of all three torts is the same. There is, seemingly, no general rule on the subject.
Nothing is more characteristic of the English Law of Torts than the importance which it attaches to acts, as distinguished from omissions. This quality is, doubtless, due largely to the quasicriminal character of the early remedies in tort, and to the fact that every crime is, historically as well as technically, a breach of the King's peace.16 But whereas criminal law, especially in its
e. g., French Code d'Instruction Criminelle, arts. 363, 366, 368; Belgian, arts. 585, 587.
15 The writer believes that, until the seventeenth century, it remained quite uncertain whether the common trespass to land was definitely to emerge as a crime, and that until well on into the eighteenth it was commonly treated by rural magistrates as such. Fielding's novels contain useful hints as to the devices adopted to justify this practice.
16 Even at the present day the doctrine is, in practice, expressly repeated in all indictments; though the technical necessity for laying every indictable offence as
earlier stages, lays great stress upon the mens rea, the Law of Torts seems early to have abandoned this idea, without completely adopting the alternative essential of substantial damage to the plaintiff. Thus the English Law of Torts is partly an instrument for punishing reprehensible conduct - a sort of minor criminal law - and partly an instrument for adjusting economic compensation; and, as is usually the case when a person wavers between inconsistent ideals, it very imperfectly attains either object. It is one of the oddest freaks in the history of ideas, that the archaic notion which sees in every accident causing physical damage a direct and obvious purpose, should have survived into the English Law of Torts, in the absolute liability' for the harbouring of dangerous animals,17 and that this archaic survival should really be one of the most complete and justifiable examples of the function which the Law of Torts performs in adjusting economic compensation. But this simple principle of compensation, unfortunately, goes a very little way in that system, which, for the rest of its scope, wavers persistently, in fixing the rules of tortious liability, between the intention, unskilfulness, carelessness, or other fault of the defendant, and the hardship suffered by the plaintiff. The controversy which raged round the recent case of Hulton v. Jones,18 and the admitted hopelessness of all attempts to frame a satisfactory definition of 'malice' for purposes of the Law of Torts, are convincing testimony to the vague and unscientific character of that branch of English Law.
The insistence of the English Law of Torts on acts, as distinguished from omissions, as of the essence of the vast majority of recognized torts, has been already alluded to; but the point is so striking a characteristic of English Law, that it may be permissible to dwell for a moment upon it. The tortious omission is known as 'negligence'; and inasmuch as, for purposes of civil law, the difference between deliberate and unconscious omission of a positive duty is, at least in theory, immaterial, we need not spend time in distin‘against the peace of our Sovereign Lord the King' seems to have been abolished by the Criminal Procedure Act, 1851, s. 24.
17 DIGEST, Bk. II, Pt. III, B. Sect. I, Tit. V, $ 784.
18 (1910) L. R. A. C. 20. This case finally decided that ‘malice in fact' is in no sense necessary to defamation. The point had been decided 300 years before Jones v. Hulton (in Mercer's Case, Jenk. 268 (1586)); but the decision seems to have been forgotten.