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and the result of the long struggle seems to have produced a rule as extreme in another direction as that which it had superseded.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.1 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

14

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.

guishing between omissions and deliberate forbearances or abstentions. But it is desirable to point out, that the scantiness of the civil Law of Negligence in England is obscured by the practice, adopted by English textbook writers,19 of including in the 'Law of Negligence' the vast subjects of breaches of contract and even of trust, which, though the former has, doubtless, grown historically out of the Law of Tort 20 (a fact which should not be forgotten), are clearly differentiated from it by the fact that they are breaches of duties voluntarily, and, in most cases, expressly undertaken. The true Law of Negligence is that which holds a person responsible, ex lege immediaté, for omissions of positive duty imposed upon him, merely as a member of the community, by the law. The writer has elsewhere 21 insisted on the narrow scope and late development of this branch of the English Law of Torts; but a vivid realization of the fact may be obtained by a glance at the Title of the Digest 22 in which that law is embodied, where it will be found to occupy only seven paragraphs, of which only one 23 really imposes specific duties. If the reader takes the trouble to turn to this paragraph, he will find that except upon persons professing special skill in a recognized calling, upon the handlers of dangerous goods, and upon occupiers of land, the English Law of Torts imposes (apart from special agreement) no positive duties whatsoever which can be enforced by an action for damages.24 At the present day, a passer-by who sees a man struggling for his life in a canal, and who, being perfectly able to render or procure help without the slightest real inconvenience (much less danger) to himself, should calmly continue his walk without making any effort at rescue, incurs no civil (probably no criminal) liability by English Law. This state of

19

e. g., the late Mr. Beven, in his well-known work, NEGLIGENCE IN LAW, 2 ed., 1908. See especially Vol. II.

20 As is well known, the action of Assumpsit, the typical action of contract till the forms of action were abolished, was originally an action on the case for negligence or deceit.

21 In 'Negligence and Deceit in the Law of Torts,' 26 L. QUART. REV. 159 (1910). 22 Bk. II, Pt. III, Sect. I, Tit. I, §§ 728-34.

23 8731.

24 Possibly an exception to this statement should be made in favour of the offence known as a devastavit, which, though not, technically, a tort (see ante, p. 8) undoubtedly gives rise to an action for damages. But, after all, the personal representative is very like a trustee who has voluntarily undertaken a trust. He cannot be compelled to accept the appointment.

things is so monstrous, that it is with little surprise that we find that at least one well-meaning attempt to remedy it has been made by the judicial bench.25 But the fate which those attempts have met is not such as to encourage further efforts in the same direction; and the gap remains a most serious disfigurement of the common law.

One other, not quite so conspicuous feature of English Civil Law, may be noticed, before we come to what is, perhaps, its most striking and suggestive formal characteristic. During the past half century, social and economic conditions in England have changed (or have seemed to change) with startling rapidity. The banding together of both capital and labour into vast associations for collective dealing, the almost complete substitution of mechanical for animal means of transport, the spread of elementary and technical education, with the consequent revolution in the conditions of many industries to name only three of the most striking changes -must, one would suppose, if the test were possible, render English life of to-day almost unrecognizable by one whose experience ended in the middle of the nineteenth century. And this view is, at first sight, confirmed by the enormous bulk of the legislation which has emanated from Westminster in the interval. But appearances are here deceptive. A more careful study of the Statute Book for the last fifty years will show how surprisingly little of this vast bulk of legislation directly affects the civil law. When we have deducted from the average annual volume the statutes rendered necessary by the ordinary administrative work of the year the Finance Acts, the Army Act, the statutes providing for the rearrangement of State machinery (the statutes dealing with the vast increase of State activities public health, education, trade, temperance legislation, and the like), the statutes dealing with mere legal procedure such as Bankruptcy Acts, the criminal statutes (which have of recent years been very numerous), and the statutes which merely consolidate or codify portions of the law there is surprisingly little left. And much the same may be said of the judicial decisions of the period. The numerous volumes in which these are contained show a vast number of decisions upon minor points of application, but comparatively few precedents

25 See the well-known judgment of Lord Esher in Heaven v. Pender, 11 Q. B. D. 503, 509 (1883).