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tifiable a new work, scientifically constructed, on this subject seemed.
The tests which have been applied in our investigations were in substance the following: History, common law, morality, changed conditions, common sense, reason and logic. If errors have been made, as no doubt there have been, they have occurred in the exercise of our best judgment.
Members of the legal profession, absorbed as they constantly are in the complexity of legal details, forget at times what a great science the law is, and how important is their mission. No calling has more to do with shaping the destinies of the people than that of the law, and to enable individual members to do their part they should become devoted students. Morality, or the science of human duty in all relations of men, lies at the foundation of all true legal education, the true interpretation of law depending entirely upon the proper application of moral principles; every question must be studied from this standpoint. If the mind of every member of the profession were thoroughly imbued with this principle, he would become a better lawyer, the profession would stand in its true light and would never be subject to the calumny of men.
It has always been conceded that the perfection of human reason is to be found in the common law, the basic principle of which is morality. If common-law doctrines and statutory rules cannot pass this test, then they are not sound. In our investigations we have followed these precepts, and have traced the his. tory of legal doctrines according to the variations thereof to suit the times and conditions, and have sifted the reasonings of judicial precedents, deducing from them leading principles to guide and control legal investigation.
In writing upon a subject of such extent and magni. tude as this, the general principles only have received attention, the various applications to circumstances and conditions as shown by the numerous adjudications have not been pursued to great extent. We found plenty to do in covering the general principles and pursuing the great outlines of the subject. As lawyers become better educated in their profession, the more they learn to depend upon a knowledge of general principles and less upon cases, the more they will appreciate and prefer a scientific treatise to a case digested text-book. We would not leave the impression that every part of this work comes up to the standard which we have set before us, as there are places where nothing more can be done than to collect rules and doctrines.
Attention is directed to one feature of the man. ner of treatment. Upon questions of unusual importance, especially where conflict of authority seems to prevail, what appears to be the true doctrine is carefully worked out and discussed in the text, while the position of each state in respect thereto is shown by sufficient excerpts from the cases in the particular state in the notes, the states appearing in alphabetical order. The design or purpose is that the reader may be able to determine what the law is by reading text or note, without in many instances consulting the
That the reader may not be compelled to rely alone upon the statement of the author, sufficient extracts from the authorities are furnished to show that the text is sound.
Another objection frequently urged against certain styles of book-making is that the texts so frequently contain such meager statements of rules and doctrines extracted from the cases, with bare citation of authority, that the reader is unable to ascertain, from
a mere reading of the text, what the law really is, and what the reasons and logic for the doctrines are, without consulting the cases. Such texts serve no further purpose than digests.
We have endeavored to obviate this objection by stating what the law is in its different phases, with the reasonings thereof.
The scholarly English writer, Sir Frederick Pollock, in his Classic on Torts, recognizes the lack of appreciation of torts as "a true, living branch of common law, not a collection of heterogeneous instances,” his work being the most scientific of any extant upon the subject.
The subject of Torts is a distinct and separate topic of the law. Notwithstanding this fact, the effort to treat it as an entirety is beset with difficulties. Plan after plan was designed by the writer, only to be cast aside until finally the one upon which the work is constructed was adopted, which it is believed presents the subject in a natural and logical order.
As the basis of all legal contention is legal rights, as all wrongs, whether ex delicto or ex contractu, are violations of primary rights, it follows as a logical sequence that the foundation of all rational and sound legal discussion must be primary rights, and violations thereof. Though the violations of primary rights which constitute torts embrace a great variety of wrongs, which, without a keen, analytical perception, might present "a collection of heterogeneous instances," or appear to be "merely a number of rules of law about various kinds of torts,”a still a proper classification of these rights, and a consideration of violations thereof in accord therewith, will enable one to journey through the domain of torts with the satisfaction that it is entitled to a disinct place in the category of subjects.
3 Pollock on Torts, Introduction.
The plan of this work will be briefly explained.
We commence with the General Nature of Torts, in which are found a few general principles common to many torts, such as a definition, its relation to contract, to crimes, privity, etc. Classification of Rights Violated is the important starting point, it being sufficient for present purposes to state that they consist of personal rights, or those rights the ohject of which affects or relates to the person, and property rights, or those rights the object of which is property, real or personal.
Next must be considered, separately from the specific wrongs that go to make up the great body of wrongs, the Liability of Persons. The rules governing this matter are peculiar to the person or relationship, which embraces Status, Joint Action, Relation to Actor, Contribution, Corporations, Public-Private, Public Utilities, Official Persons, and so on. Then follows all specific wrongs, The Right of Personal Se curity by Force and Without Force. Part Five treats of the Specific Wrongs to Relative Rights, Commonlaw and Statutory. Part Six considers Specific Wrongs to Real and Peronal Property With Force, while Part Seven takes up Wrongs to Property Rights Without Force.
Thus it may be seen that the Wrongs cluster about the Rights, and we can see at a glance the whole body of wrongs.
In the treatment of many of the subjects, though common and familiar, some hitherto shadowy places have been cleared up, and some new features in old subjects have been developed. The discussions have not been limited to what may have been found in the decided cases, but wherever it seemed necessary, other questions have been anticipated and treated.
As already stated, the volumes are designed to be discussions of general principles, the reasonings,
history and logic of the law-something which law. yers and judges may turn to and use with safety in the solution of problems.
Double citations have been made to the American Decisions, American Reports, American State Reports, and to the Reporter System, which adds great value to a text-book. Frequent references are made to the many valuable notes found in the American Decisions and American State Reports, which are often more extensive and replete with citation of authority than is possible in a text-book. The writer is glad of an opportunity to speak of the high character of the legal discussions found in the Annota. tions to this series of reports, and to express his appreciation of the courtesies extended by the publishers of those reports and of these volumes.
In closing the arduous labors of this work, and before letting it go from our hands, it is with pleasure that grateful acknowledgment is made of the valued assistance of my young friend and former student, Harry L. Doud, L. L. B., of the Columbus (Ohio) Bar, who has been a constant companion in thought and deed during the greater portion of the time occupied by this work. It will always be a source of pleasure to look back over the days of our combined labor, and to remember how it shaped and developed a bright legal mind of a devoted friend.
EDGAR B. KINKEAD. Columbus, Ohio, April 1, 1903.