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English Legal History |
TORT: AN OVERVIEW OF 17TH AND 18TH CENTURY DEVELOPMENTS |
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1. |
Torts—we last left it some place in the 15th c. in order
to pursue assumpsit. The word assumpsit continues to be used in
tort actions and no consideration needs be shown (16th c). Contract and tort are
thus differentiated in one action, but they remain very close particularly in
cases of trade and professional negligence. The difficulty remains with us
today, in, e.g., cases of medical malpractice. |
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2. |
The next development is somewhat surprising: the seeds that are sewn in the action on the case wither. The custom of the realm goes only so far: innkeepers, fire, that’s about it. Scienter goes only so far; animals account for most of the actions. It has recently been suggested that the courts were concerned with limiting the new action. Perhaps that is right. In any case people sue either in vi et armis (battery) or assumpsit. |
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a. |
The Case of Thorns (1466) (Mats., p. IX–165) a mistaken attempt to plead accident. This clearly weren’t no accident. |
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b. |
Weaver v. Ward (1616) (Mats, p. IX–168), a shooting accident case, again the plea is offered and rejected with dicta about “inevitable accident.” |
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c. |
We are still in world of pleading. If the defendant has a
justification he can plead confession and avoidance. If his story is “not my
fault,” he should plead not guilty. “Not my fault” is properly a jury
question. Gibbon v. Pepper (1695) (Mats, p. IX–169) (a runaway
horse case) says as much. |
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3. |
Mitchell v. Alestree (1676) (Mats., p. IX–172)
waiver of force and suit on the case for negligence. Lord Hale and breaking
in horses in Lincoln’s Inn Fields. The case is pled in case and rejected at
nisi prius on the ground that the horses were not badly controlled. But a new
action is allowed on the ground that they were improvide brought into
the fields. This may be the beginning of a generalized notion of negligence.
It was certainly so seen at later times. |
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4. |
18th century emergence of the reasonable man standard and the
notion of duty of care. Also the continuing problem of trespass vs. case,
culminating in Scot v. Shepherd, 2 Wm. Bla. (1773). Williams v.
Holland, 10 Bing. 112 (1833) allows waiver of trespass and suit on case
except where there is a direct, wilfull injury. |
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5. |
19th century abolition of the forms of action and
rearrangement according to the plaintiff’s fault |
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6. |
Meanwhile other torts are developing around other actions: |
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a. |
Trover last of the great fictions parallels assumpsit in development, including a resolution around 1600 of the problem of concurrence of detinue and trover. |
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b. |
Assize of nuisance and the action on the case for nuisance—same resolution at the same time as Slade’s case—gradual development thereafter. Note this is the action for interference with easements. Lots of interesting smells cases in the 16th and 17th centuries. Private vs. public is, alas, also a distinction of this period. |
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c. |
Defamation—the ecclesiastical courts—the 16th and 17th centuries and the mitior sensus rule—criminal libel is another story. |
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d. |
Economic torts—the most important one in our period is the
public law story of the Case of Monopolies, 11 Co. Rep. 84 (1602) and
the subsequent statute. Tortious interference with economic relations: loss
of services of apprentices, wives and daughters, inducing breach of contract;
unfair competition: commercial slander, misuse of trademarks, intimidation (a
notion that will have unfortunate consequences in 19th century cases about
trade unions). |
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7. |
It is a commonplace that English law knows no generalized conception
of tort, only a law of torts (in the plural). In the 19th century the idea of
intention/negligence came to develop a unifying capability. We are probably
mistaken in seeing too much of this before the 19th century. Like the
contract problem, it’s not that the roots of the 19th century development are
not found in our period; they are. But if we look at the whole range of tort
actions, their multiplicity strikes us. If in contract the old notion of
contract lasted for a long time, in tort that old notion that not doing is no
trepass lasted for a long time. The converse of this proposition is that if
you did it, you’re going to have to show a pretty good reason why you did it,
or persuade the jury. Relatively few direct inflictions of harm will escape
going to the jury, practically no intentional inflictions of harm will escape
going to the jury, except competition. |
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8. |
If time, the Palmer thesis on the development of the
action on the case. |
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9. |
If time, Berden v. Burton, Y.B. Trin. 6 Richard II,
pl. 9, pp. 19–23 (1382)., Mats. p. IX–163 |
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[Home Page] [Syllabus] [Information and Announcements] [Lectures] Please send comments to Rosemary Spang URL: http://courses.law.harvard.edu/faculty/cdonahue/courses/elhlaw/ls13.out.html Copyright © 2004. Charles Donahue, Jr. |