Pollock says:

"The classification of actionable wrongs is perplexing, not because it is difficult to find a scheme of division, but because it is easier to find many than to adhere to any one of them." 35

The two methods most frequently pursued were:

1. (Originally the sole method.) Classification according to the forms of action under which remedies were enforced. In effect, "a purely procedural classification." 36

2. Classifying specific kinds of torts according to the nature of the right invaded or the nature of the harm inflicted.37

Various other methods were suggested, including a division according to the nature of defendant's conduct. This last method, if fully carried out, would result in separation into two distinct classes: (1) liability imposed on the ground of fault; (2) liability imposed in the absence of fault. But this method was not usually made prominent. The order in which particular torts were dealt with (at least in the earlier books) "is not made to depend upon the motive, intent, or state of mind of the wrongdoer." 38

In very early times there was no occasion to discuss the essential elements of a tort or wrong. Wrong was then not essential to liability. It was enough that the defendant's conduct, although perfectly blameless, had occasioned harm to the plaintiff.3

39

Later it began to be suggested that in certain instances (in certain classes of cases) there was no liability unless there was fault. But even then there was very little inquiry as to the substantive law respecting the necessity of showing fault. The attention of the courts was mainly given to questions of procedure, e. g., the scope of the old forms of action.

Leaving out of view the comparatively recent suggestion that the term "tort" should be confined to cases of actual fault, the situa35 27 ENCYCL. BRIT., 11 ed., 65.

36 See BOHLEN, Cases on Torts, ed. 1915, Preface, iii.

37 This may be a convenient method for arranging the order in which to consider specific subtopics. But it is not a division upon fundamental grounds. It does not call for a discussion of the reasons for actionability: or of the real essence of a tort. If courts are to use this as the only method of classification, they will not be so likely to inquire into the fundamental reasons for imposing liability.

38 BURDICK, TORTS, Preface to First Edition. See POLLOCK, TORTS, 9 ed., 8; Edward Jenks, 26 L. QUART. REV. 166.

39 See 27 HARV. L. REV. 239; 22 HARV. L. REV. 99; 59 U. PA. L. REV. 309. Compare I POLLOCK & MAITLAND, HISTORY OF ENGLISH LAW, 2 ed., 54.

tion (as set forth in books of good repute, may fairly be described as follows:

The term "tort," although originally synonymous with wrong, "has become specialized in its application" as a technical term in law.40 "Tort," taken in its broad literal sense of wrong, would include wrongs which are exclusively subjects of criminal jurisdiction, also breaches of contract and breaches of trust. But instead of including these, its application in law has been restricted to certain classes of wrongs (other than mere breaches of contract) which give rise to an action for damages in courts of common law. Under, or by means of, actions of tort, the courts were accustomed to allow the remedy of pecuniary satisfaction "for invasions of the three elementary rights of civilized society — the right of personal liberty and security, the right of reputation, and the right of property." But an action of tort was not a remedy under which all invasions of these rights could be a subject of recovery.

The definitions of tort hitherto commonly given are admitted to be unsatisfactory.42

Those definitions which are most frequently given are, in part, merely procedural; and, so far as they relate to substantive law, are of a negative character. It is now proposed to state various common definitions, to consider the objections to them, and to see whether the difficulties can be obviated by a different system of classification, resulting in a better definition.

The following are common definitions of tort:

"A tort is usually said to be 'A wrong independent of contract,' i. e., the violation of a right independent of contract." 43

40 SALMOND, TORTS, 4 ed., 7, note 4.

41 CLERK & LINDSELL, TORTS, 6 ed., 4.

42 Of course it is impossible to frame a short definition of tort whereby a lawyer can instantly solve all the legal questions arising upon any conceivable set of facts. To do this would require a full statement of legal rights and legal duties. In speaking of a definition of tort, we now have in mind only the framing of a general statement or outline, marking out the essential issues to be investigated. Thus, if the definition makes fault a requisite element, it is necessary to inquire in each particular case whether there has been a violation of some legal right or legal duty. But the definition of tort does not undertake to tell us what are the legal rights or duties in each particular case. Compare ADDISON, Torts, 8 ed., 1.

43 INNES, TORTS, § 6. And see titles to forms of declarations and pleas in the Common Law Procedure Act of 1852, 15 & 16 VICT., chap. 76; Schedule B, pp. 725, 727. As to this definition, Judge Innes makes the following comment: the rights,

66

"A tort may be described as a wrong independent of contract, for which the appropriate remedy is a common law action."44

"A tort is an act or omission giving rise, in virtue of the common law jurisdiction of the Court, to a civil remedy which is not an action of contract." 45

"A tort is a breach of duty (other than a contractual or quasi-contractual duty) creating an obligation, and giving rise to an action for damages.

"Now, a 'tort' in English law means, practically, any cause of action formerly recognized by the Courts of common law, not capable of being dealt with as a breach of contract."47

The foregoing propositions, so far as they profess to state any rules of substantive law, are of a negative nature; and even in that point of view, are not "comprehensive," being subject to an artificial restriction as to the method of procedure (the jurisdiction of courts).

These definitions tell us "what a tort is not."48 Moreover, by the qualification as to recovery by common law action, the scope of the term "tort" is confined by the limits within which the common law courts exercise their jurisdiction. But important liabilities, enforced by various other courts, lie outside of that jurisdiction. "According to the common understanding of words, breach of trust is a wrong, adultery is a wrong, refusal to pay just compensation for saving a vessel in distress is a wrong." Remedies in such cases have been enforced, respectively, in a Court of Equity, in an Ecclesiastical Court, or in an Admiralty Court. "But that which

of which a tort is a violation, are, in fact, distinct from those arising out of contract. But they are also ... distinct from a vast array of other rights; so that the usual definition is as defective as would be a definition of the horse as 'A class of animal independent of horned cattle."" In 1 JAGGARD, TORTS, 5, the author says: "Such a definition is like a definition of a horse as a quadruped."

44 CLERK & LINDSELL, TORTS, 6 ed., 1.

The learned authors add: "In order, therefore, to discover what a tort is, we must examine the various kinds of action which the law has from time to time recognized, not on any systematic theory, but according to the dictates of experience and convenience, and eliminate from the list those which are dependent on contract."

45 POLLOCK, TORTS, 2 ed., 4. “Many attempts have been made with varying success to define a 'tort.' The above definition of Mr. Pollock, while a negative one, seems to be least unsuccessful and unsatisfactory." I JAGGARD, TORTS, 2. 46 JENKS, DIGEST of English CIVIL LAW, Book II, Part 3, § 722.

47 MONAHAN, THE METHOD OF LAW, тоб.

48 "To that extent we know what a tort is not." POLLOCK, TORTS, 2 ed., 4.

is remedied in each case is not a tort" within the foregoing definitions.49

Other definitions are also open to criticism.

Sometimes the test is laid down, that "every tort involves an affirmative act"; "that to avoid committing a tort we need only to forbear." But this is not universally true. There may be torts of omission, as distinguished from torts of commission.50

Several authors have defined a tort as an infringement of a right in rem, as distinguished from a right in personam — a right in rem denoting a right which the possessor has and may enforce against the entire community, while a right in personam may be enforced against particular individuals only.51

But this is not a correct description of all torts. Professor Burdick says that, while "many, perhaps most, torts" are violations of a right in rem, yet "on the other hand many a tort is a violation of a right in personam." 52

"By some writers a tort has been defined as the violation of a right in rem, giving rise to an obligation to pay damages. There is a tempting simplicity and neatness in this application of the distinction between right in rem and in personam, but it may be gravely doubted whether it does in truth conform to the actual contents of the English law of Most torts undoubtedly are violations of rights in rem, because most rights in personam are created by contract. But there are rights in personam which are not contractual, and the violation of which, if it gives rise to an action for damages, must be classed as a tort. The refusal of an innkeeper to receive a guest is a tort, yet it is merely the breach of a non-contractual right in personam." 53

So as to the right inherent in all members of the community to enjoy transportation by a common carrier. The right to be accommodated

49 POLLOCK, TORTS, 10 ed., 5. See also I JAGGARD, TORTS, 5, 6, 12. SALMOND, TORTS, 4 ed., 2, 7.

50 See BURDICK, TORTS, 2 ed., 4, 5; Professor Langdell, 1 HARV. L. REV. 131; Professor Corbin, 21 YALE L. J. 552-53; SalmondD, TORTS, 4 ed., §§ 162, 160, p. 558. 51 FRASER, TORTS, 8 ed., 1; COLLETT, TORTS, 7 ed., 1; INNES, TORTS, § 6. See WALTER D. SMITH, MANUAL OF ELEMENTARY Law, §§ 127, 128; 1 Austin, JurisPRUDENCE, 3 ed., 46, 389, and vol. 2, 964.

52 BURDICK, TORTS, 2 ed., 6. Compare PIGGOTT, TORTS, 5, 6, 12-14.

53 SALMOND, JURISPRUDENCE, ed. 1910, 437. As to the action of tort against an innkeeper or carrier for breach of duty to keep goods safely; see BURDICK, Torts, 2 ed., 7, 8.

at an inn, or to receive transportation at the hands cf a common carrier, is not a right which is available against the world at large. It is enforceable only against certain determinate persons, viz., those persons who profess to carry on these occupations.

"Thus we have a duty attached to the mere profession of the employment, and antecedent to the formation of any contract, and if the duty is broken, there is not a breach of contract but a tort, for which the remedy under the common law forms of pleading is an action on the case. In effect refusing to enter into the appropriate contract is of itself a tort." 54

The difficulty in applying to this subject the tests of right in rem and right in personam is, that these phrases usually relate only to the number of persons against whom a right is enforceable. They do not describe the number of persons who possess the right; the number who can claim to enforce the right, the number to whom a duty is due. In the typical instance of the contract right of a promisee against a promisor, the right is vested only in a certain determinate person and is enforceable only against a certain other determinate person. But a right, though enforceable only against certain determinate persons, may be vested in (may be enforceable by) all other persons (all members of the community who manifest their desire to exercise it). Such a right may not be a right in rem. But Mr. Piggott well says that

"duties imposed on determinate persons toward the whole of the rest of the community" "may aptly be termed duties in rem." 55

The violation of such "duties in rem" may constitute a tort, though the right violated is not a right in rem.56

The unsatisfactory nature of the common definitions of tort has repeatedly been conceded. They do not state what are "the common positive characteristics of the causes of action" that can be sued upon as a tort. And the reason for this failure is obvious. 54 POLLOCK, TORTS, 10 ed., 556–57. And see BEALE, INNKEEPERS, §§ 281-82, § 70; and HUTCHINSON, CARRIERS, 3 ed., §§ 62, 963.

55 PIGGOTT, TORTS, 14.

56 The phrase "General Rights" (see post, quotation from Professor Wigmore) might be understood as including all rights which inhere in the community generally, whether such rights are available against all the world or only against certain determinate persons.