Page:Harvard Law Review Volume 8.djvu/225

TRIPARTITE DIVISION OF TORTS. 209 One or two general implications of the recognition of this tri- partite division of Tort may now be pointed out. I. It calls to our attention the necessity, every day drawing nearer, of adjusting the treatmsnt of our substantive law to the abolition, already largely accomplished, of the forms of action and classes of writs in Tort. As regards the distinction between Case and Trespass, there are of course two or three important marks left by it on the substantive law; e. g. the principle (justifiable, prob- ably, on the highest grounds) that, of injuries to the person and to property, a mere touching is actionable if produced directly by the defendant, but not actionable if produced indirectly; the doctrine (not positively established and probably not sound in principle) that the causing of terror at physical danger is actionable when occasioned directly, but not actionable when occasioned indirectly. But the time must come when the sorts of actionable injuries will be classed according to an analysis of the essential qualities of the injuries, not the kind of writ employed by the clerks of the Chan- cery nor the analogies peculiar to a primitive legal condition; a time when further development can take place along these natural lines of classification and in view of the policy that may be appro- priate to each situation. The recognition of the common Damage element in all Torts, and its separate treatment, will do much to- wards this end, — in fact, necessarily involves it as an ultimate consequence. By this it is not meant to advocate a slighting of the forms of action and their historical development, either in treatises or in education. For the present generation at least this would be impossible, as well as unpractical in the highest degree. But there is no reason why we may not, so far as may be, recognize legal realities and put ourselves in the path of more scientific treatment. 2. A more important consequence of the recognition of the tri- partite division is the helpful results to be reached by studying the different solutions of the same problems and the applications of the same principles in different torts. Clearer understanding of a gen- eral principle and its differing aspects in application, keener appre- ciation of its worth or perhaps of its incongruities, greater readiness for new developments already pressing upon us, — these are the benefits of such a recognition. It is perhaps in the Secondary lim- itations — the Responsibility element — that the most interesting opportunity offers; and yet in the Tertiary limitations it is impos- sible to expect any general analysis or scientific treatment of the various kinds of Excuses or Justifications without first recognizing