FOREWORD Until the second half of the nineteenth century there was no attempt to systematize the rules and principles of the common law of torts. In the preface to Hilliard on Torts (1859), the first American textbook on the subject, the author points out that except for the general treatment of private wrongs from a procedural standpoint in Blackstone's Commentaries, his was the first attempt, whether in England or America, to treat the subject as a whole systematically. Addison on Torts, the pioneer English text, appeared in 1860. As late as 1871 an American reviewer of Addison could say: "We are inclined to think that torts is not a proper subject for a law book." (5 American Law Review, 341.) Nor was he without reason, since for a long time there was little more than a successive treatment of the several named torts which had developed from procedure in the actions of trespass and trespass on the case. In the pioneer case book (Ames, Cases on Torts, 1874) the named torts are taken up as follows: Assault, battery, imprisonment, trespass upon land, trespass upon personal property, loss of service, conversion, and defamation. The only generalization is in a chapter on justification for trespass. In the second volume edited by Judge Smith two decades later (1893) there is a more generalized treatment of negligence, there is a generalized treatment of causation, and the beginnings of a system of the whole subject are manifest. In the present century in Wigmore's Cases on Torts (1911) we find a completely generalized systematic treatment. Growth of the law of torts has gone along with systematizing of the subject, and teachers and writers have played a large part in directing that growth. In a growing subject a scientific appa ratus is always of more than ordinary importance; and that this is true in the law of torts is shown by the continually increasing reliance of bench and bar upon papers in the leading law reviews. Indeed the directing activity of teachers and writers has been exercised chiefly through such papers. But papers in legal periodicals are not always readily accessible. iii Hence it has seemed timely to bring together papers upon the theory and problems of the law of torts which have appeared in the Harvard Law Review in the past thirty-five years in order to bring them more conveniently within the reach of judges, lawyers, teachers, and students. HARVARD LAW SCHOOL June 20, 1924 ROSCOE POUND. |