many torts, yet there must be an act of omission or commission, as the result of the intent, before an action will lie. An act of commission may be one in which force is employed as a means to the end, or it may be without force. This is one of the primary divisions which we have made in our discussion of specific wrongs; made, because it brings clearly before the mind the ancient origin of many supposedly modern torts; used, because by it we can see plainly the historic reasons underlying many important wrongs of to-day; and insisted upon, because the foundation of our modern law of torts lies in ancient wrongs, and cannot be properly understood and applied without appreciating and emphasizing this fact.

By "force" is not intended physical violence. It is a trespass to step across the boundary line of a man's uninclosed land. Torts, coupled with force, include all wrongs of commission to rights in tangible matter, wrongs to rights in the body, life, liberty and security, and wrongs to rights in tangible property, its possession and exclusive control. Wrongs without force embody all wrongs of omission, to tangible or intangible matter, and wrongs of commission to rights in intangible matters, injuries to reputation, health and relative rights.

Beyond this, however, is a modern metaphysical division of wrongs called torts, not yet fully appreciated; a basis of unity, upon which all torts may be said to be related, springing out of the fact of experience; a fundamental principle, upon which the subject was unconsciously developed and is expanding, which is outlined by Pollock, apprehended by Holmes, and is yet to be completely comprehended. By these eminent authors, the modes of violating duties are dependent upon the nature of the duties themselves. Three grades of duties are outlined.

The first class embraces those absolute duties which, when broken, give rise to tort, whether the acts interfering therewith are unintentional or accompanied with the utmost care, or are even beneficial. In the second are those duties which are only broken when one fails to use care, or is negligent in doing or not doing a given act. Thirdly, they include those acts which are in willful disregard for others, in which the act or omission, unconnected with any malicious or willful intent, is not wrongful, but the duty lies to refrain from acting willfully or maliciously.

In his learned treatise on the "Common Law," Mr. Justice Holmes says: "The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community. But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feelings of revenge which lead to self-redress. It thus naturally adopted the vocabulary, and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average of the community, whom he is expected to equal at his peril. In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances. If there is danger that harm to another will follow, the act is generally wrong in the sense of the law. . . . . The

tendency of a given act to cause harm under given circumstances must be determined by experience. And experience either at first hand or through the voice of the jury is continually working out concrete rules, which in form are still more external and still more remote from a reference to the moral condition of the defendant, than even the test of the prudent man which makes the first stage between law and morals."25

The field of torts may be viewed as a body of wrongs springing from one source that of willful disregard of the rights of others, many of which by growth and development have passed from that stage in which negligence alone constitutes the chief evil of the wrong, and some have reached the height of concreteness in which naught but the act itself need be alleged to constitute a cause of action.

The last class just mentioned, the first in the previous order, we have designated in our chapter and part headings as wrongs "without right," because the act itself is wrongful. Thus, one who sets a spring-gun or keeps vicious animals on his premises does so at his peril.

The middle group we have classed under the head of "Negligence," indicating that the want of care is the sole distinguishing feature. In the extension of "negligence" into "nuisance" we have embraced a number of wrongs which probably might well be treated under those "without right," although they are most closely connected to negligent acts. They illustrate the development of one class into the other as described by Justice Holmes.

Lastly, we have indicated the remaining group of wrongs as those "by intention," adding also "with negligence," as, in our estimation, all wrongs ex de

25 Holmes on the Common Law, 161, 162.

licto have the common origin in intentional disregard for the rights of others. In some acts this element is conclusively presumed; in others, it is presumed only upon the proof of lack of care, while in others it must be shown in all completeness.

Rights are correlated with duties, and as all duties whose breach give rise to actions in tort have such a common origin, so all rights correlated therewith have a common source, and those rights upon whose disregard we may predicate an action ex delicto originally were rights to be unmolested by intentional carelessness of others, some of which have now become absolute, and many conditional rights, while in others the original nature of the right is unchanged.

Thus we may see, perhaps dimly but, we believe, certainly, the bond so often sought for, despaired of by many, and grasped by a few, which binds the classes of torts together and enables us to present the subject as a complete and united portion of the law.

Torts, Vol. I-2

§ 11.

Of legal rights.

CHAPTER II.

CLASSIFICATION OF RIGHTS AND DUTIES VIOLATED
BY TORTS.

§ 12. Classification or division of rights.

闻

§ 13.

§ 14.

Absolute and relative rights further particularly considered.
Right of personal security.

...

§ 11. Of Legal Rights. "The primary and principal objects of the law are rights and wrongs." The idea of rights, as we encounter them in the great body of wrongs we term torts, is particularly well expressed by Professor Hammond: "We have the rights and wrongs. . . . originating. . . . in that reason which is the common law, but rarely traceable to any distinct command. . . . . They are shaped and governed by the every-day interests of men and the purposes of daily life, and that the law which defines or limits them is usually formed from them, and intended to mark off their limits, and prevent the conflicts which in actual life are constantly arising between them. So far from lying at the basis of the system and determining the form and contents of every right, the law of a given case is usually the last thing to be determined, and cannot be accurately stated until the courts of justice have measured the relative extent of the conflict rights, 1 Blackstone's Commentaries, 122.

the