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Law Magazine and Law Rebicw:
QUARTERLY JOURNAL OF JURISPRUDENCE.
ART, I.-THE LAW OF TORTS.
Wrongs and their Remedies ; being a Treatise on the Law of
Torts, by C. G. ADDISON, Esq., of the Inner Temple, Barristerat-Law, author of “ The Law of Contracts." London: 8vo. 1860. (Pp. 852.)
N the eve of long travel_say a journey into the East or to
the prairies of the Far West--every man wishes to obtain some general notion of the nature and character of the climate and productions, the proper manner of visiting, and of dealing with the difficulties of, the region he is seeking. Every one who is asked down by a friend to take a bed, in order to join a great meet of the Pytchley on the morrow, expects to have some account before or about starting, of what is the style of country over which he is about to ride. If Æsculapius, your physician, proposes to submit you to a course of alteratives, you would certainly exact from him some description, in more or less detail, of what you will probably be called upon to do or to suffer during
VOL. X. NO. XIX.
the continuance of it. Does not a treatise on a subject not treated heretofore, come before the world on pretty much the same conditions ? Is not its author held to be bound to explain something about the outlines, or the general character of his subject, before he plunges the reader into the midst of business ? Especially, one would have thought that an author, on introducing to public notice so occult a subject as that of Tort—the department of law in which, perhaps of all others, imperfect knowledge is discernible among the alumni of Themis--would have held that it would not have shocked taste, or outraged propriety, or sacrificed lucidity, or compromised any one assignable advantage, if he had carefully set out and expounded, in the opening of his book, that preliminary mass of information on various subjects ; ex. gr., what is the nature of a wrong or injuria; what is damnum ; what bona fides; what dolus malus, &c., without which knowledge no one can attempt to pursue the study of Torts without finding himself hampered and embarrassed perpetually. If aid were wanted, aid in abundance might be had, if not from English writers on law-for, as we have said, this subject had never in England been dealt with in a solemn treatisestill from many an old jurist who would shew ample stores to be drawn upon. Cicero might have introduced the reader to right conceptions of the nature of fraud, in some of those passages which have frequently been cited by our judges from the bench; as, for instance, the feigned case which he discusses, of the person arriving at Rhodes with a cargo of wheat in time of famine-is it a fraud in him to take a famine price for his wheat, or tell the Rhodians of the information he is in possession of, viz., that a number of other ships laden with wheat are on their way to the island, and may soon be looked for ?1 What is dolus malus and what is bona fides he would also learn full well, at least as regards preliminary views, from Cicero ;Puffendorf would almost exhaust the subjects of
1 Cicero de Officiis, lib. iii., cap. xii. xiii. (See 6 M. & W. 358, and Bartlett v. Salmon, 6 De G. M. & G. 39.)
2 Cic. de Off., lib. iii., cap. xiv, xvii.
injuria and culpa, or Bentham’s Morals” might hold up a light on occasion; while from Whewell's Elements of Morality wise suggestions crop out abundantly.
It is true that English law, unlike the accurate sciences, does not live in definition; but, nevertheless, who shall say of an author who treats of law that he does less than what is due to the profession, to the public, and to himself, when he takes some pains to make the approaches easy to the adytum--when he smooths the path, if not in the way of definition, at least of such explanation, discussion, and illustration, as leaves no doubt as to the meaning of the terms of art, the terminology and technicals, with which he is about to level the road ? Common sense surely points this course; a proper desire of utility sanctions it; no taste revolts from it; and, on the whole, we repeat that it is no more than what an author owes to the profession, to the public, and to himself. But Mr. Addison has not done it, and therefore, probably, does not feel the pressure of the lastmentioned debt; for that sort of debt, with most men, is no sooner found to be due than it is promptly discharged in full. In the preface we certainly find it stated, that “ Tort, at the present day, in our law denotes a civil wrong, for which compensation in damages is recoverable, in contradistinction to a crime or misdemeanour, which is punished by the criminal law, in the interests of society at large, no compensation being awarded for the individual wrong.” Then the preface proceeds to tell how it is not every injury by one man to another that constitutes a Tort. If, for example, A establishes a school and obtains many scholars, or opens a shop and obtains numerous customers, and B comes and opens a rival school or shop, and draws away A's scholars or customers, an injury has been done to A; but there is no Tort
1 Puffend. De Jur. Nat. & Gent., lib. i., cap. vii. ss. 15, 16, 17. Lib. iii., cap. i. s. 6. See also Grotius De Jur. Bell. & Pac., Lib. ii., cap. xvii. s. 1-22. See Colquh. Rom. Civ. Law for dolus, ss. 282–286, 299, 1529; culpa, ss. 1530, 1531, 1533, 1567.
Ex. grâ, vol II., cap. xvii.' * Bk. I., cap. iv. art. 71, 80, 81, 86, 90; cap. v. art. 98, 99. Bk. II., cap. xi. The famous Rhodes famine case, cap. xv. art. 305; also see cap. xxi.; and Bk. IV., cap. i. ii. iii. iv.
or wrong; for one man has as much right, by the common law, to be a schoolmaster or shopkeeper as another ; but if the scholars or customers have been drawn away by unlawful means, as by the use of threats, intimidation, or slander, there is then a Tort or wrong, in respect of which compensation in damages may be obtained,” and then another intended instance is given, and so
But none of this amounts in any way to a definition of Tort; nor indeed does it at all help to place before the mind of the reader a distinct idea of what is to be the subject treated of in the text, when we have read that a Tort is a civil wrong, for which compensation in damages may be had, in contradistinction to a crime or misdemeanour. We do not thus gain any thing but the necessity, in order to arrive at the meaning of Tort, of having to find out the meaning of crime, and of misdemeanour, punishable by the criminal law; which is very much like the old story of ignotum per ignotius. In fact, in order to understand a treatise, written on this system, on any one head of the law, you must come provided with an accurate and ripe knowledge of all the matter belonging to every other head of the law. Surely there is something in this concatenation which approaches startlingly near to the vicious circle. Then, what is gained in clearness from the examples—say that of the school, or by the mode in which the examples are dealt with ? A Tort, in fact, is an invasion by A of B's rights, either of property, person, liberty, or reputation ; for B to draw away A's scholars by fair rivalry is no injury to A, because A has no right to retain his scholars against all the world ; he has not an absolute property in them; he is no more injured than he is when a father withdraws his child from the school because he can no longer afford to keep him there; but when B seduces away the scholars by fraud, that must be effected for its means by slander, and then a Tort, but a Tort of a different character, and compensable by damages on a different ground, emerges.
However, the above being all, or very nearly all, that is put forward, by way of preparation, for the body of the work, the text begins at once, like an article in a Digest (save only that it has not the advantage of alphabetical arrangement), with the subject of the right to the use of running water. Now here, before going further, we will at once say that Mr. Addison has brought an Herculean labour fo bear upon his performance. He is by no means a compiler of books from side-notes; there is no trace of scissors and paste in his system of book-making ; his statements are always neat, concise, and well put together, so as to convey the salient points of a decision with judgment and perspicuity; and very few, indeed, are they who conceive the toil, and anxiety, and sleepless vigilance, that go to raising up so massive a work as this from the ground as it were, the author having no predecessor in the task on whose previous labours he might build, whose excellences invite an agreeable and elevating emulation, or whose failings- infames scopulos Acroceraunia-may stand out as landmarks to be avoided. Mr. Addison has had all the world before him whence to choose his plan, his materials, and his combinations; and for the most part he shows, we think, besides the rare and high qualities we have ventured to mention, the more brilliant attributes of sagacity and acuteness. Still we are sorry to say that many readers will find, we fear, that there is something wanting in Mr. Addison's treatment of the “ Law of Running Waters.” It is a subject which has of late extremely grown in importance. The increase of drainage has produced, and probably will produce, new aspects and new combinations of circumstances, multiplying difficulties as regards questions of surface waters; and the widely increased working of mines in every part of England and Wales, will not improbably add largely to the almost new head of law that has of late begun to be developed, respecting undergrowing springs and runners of water. It is a subject, no doubt, of extreme difficulty—the grand difficulty of all being apparently that of how to make received principles of law, when applied to these questions, especially of underground waters, square with the eternal principle of suum cuique tribuito; and therefore we cannot but think that, on a more fortunate plan to start with, Mr. Addison, with the same materials, might have succeeded in treating it in a mode that