POLLOCK'S "LAW OF TORTS."*
Site-siona qt Papa. . By.Frederick Pollock. Loudon: Steve* .*d$oas. 1887. FIRST NOTICEd Mn. POLLOCK is a distinguished member of the school represented by Sir Henry Maine, Mr. Justice Stephen, Professor Holland, Mr. Digby, and Mr. Justice Holmes, who within the last twenty-five years have laboured at the revival in England and in America of legal literature. Their efforts have been crowned with extraordinary success. From the days of Blackstone till the appearance of Maine's Ancient Law, legal writers had produced not a book which added to the literary wealth of England. The authors we have men- tioned differ in many respects. But they have all, consciously or unconsciously, aimed at giving to the study of law its proper position. They have all sought to produce works treating of legal speculation in the same way in which authors of eminence have long been accustomed to deal with every other subject which can interest mankind. The creators of the legal revival have applied to the elucidation of law the literary skill, the historical knowledge, the scientific ideas of the day. They have done little less than open to the world a new pro- vince of speculation, and add a new province to the domain of English letters. This school have made law at once truly scientific and truly popular. They have made it scientific, because they have explained legal problems by aid of all the best knowledge of the age. They have made it "popular" in the best sense of that much-abused term, because scientific treatment of law—that is, treatment based on knowledge and thought—is the only mode of treatment which makes it possible to answer the questions raised by the study of law in a manner which is intelligible to thoughtful readers without acquaintance with legal technicalities. Among the younger writers who have helped on this creation of a new literature, Mr. Pollock is the most eminent. He is a man of letters, and has shown in more departments than one his high gifts as a writer. He is a philosophic thinker, as is apparent to any one who has studied his treatise on Spinoza. He is an acute and subtle lawyer who, in addition to legal acumen, possesses rare powers of exposition. His short essay on the Land Laws is in its way a masterpiece ; it deals with the most crabbed portion of English law ; yet it makes the outline of the topic perfectly intelligible to any well-educated layman, whilst it gives views on the history of the law of real property which are well established by historical investigation, but are scarcely as yet fully mastered by many men who for practical purposes are sound enough lawyers. It is, however, natural that a book belonging to the -"Citizen Series," and therefore avowedly addressed to a general audience, should not attract as much attention as it deserves from prietitioneri 'who 'nevertheless might greatly clear up "theii'own cOneeptioas • of English law by studying its pages. Law of Torte Is addressed as much 6' lawyers as to laymen ; its topic "is is one of daily interest. It is, of book' of principles rather than a work of elabo-
rate detail ; it does not pretend to be a digest of cases. But it will command the attention and gain the confidence of every practising lawyer who cares to pursue a rational study in a rational manner, and who aspires to solve legal problems by something more satisfactory than the rule- of-thumb. The book, in fact, exhibits all the qualities which distinguish its author,—his literary skill, his philosophic thoughtfulness, and his legal subtlety.
Let us look first at a point which concerns greatly the mass of our readers,—the literary quality of Mr. Pollock's work. His Law of Torts is, what very few English law works can pretend to be, a " book " in the true literary sense of that word. To a printer, indeed, a book consists of printed pages bound together and offered for sale. In this sense of the word, Smith's Leading Cases, Williams's Saunders, and even Addison on Torts—the worst legal treatise in the English language, unless Addison on Contracts be considered to have a fairer claim to the pre-eminence of badness—and all the thousand tomes which fill the libraries of Lincoln's Inn and the Temple, may lay claim to be "books." But any one who knows what literature really is will no more admit that a lot of pages bound together, and even of pages which contain useful information, constitute a book, than any man of sense will concede that a lot of bricks and timber (even of the best quality) piled planlessly together will con- stitute a house. Nor is the mere presence of some sort of plan enough to turn printed matter, and printed matter of value, into a book. The Law Reports provide information which to lawyers is inestimable. Their volumes contain the substance out of which treatises can be created. We speak of these Reports with a respect which borders on affection. But we utterly deny that a volume of Reports is a book in the same sense in which we apply the expression to Black- stone's Commentaries, Maine's Ancient Law, or Pollock's Law of Torts. A book is a creation of thought ; it has a proper form of its own ; it must have a beginning, middle, and end ; it must be inspired by some one or more guiding ideas. This is true of even the lowest form of book ; it applies to the last- published three-volume novel as truly as to The Wealth of Nations or to a play of Shakespeare. But if some sort of form and shape is required in order to tarn printed matter into a book, no book even can claim a place in literature which has not a spirit and individuality of its own. The writer's own soul must have passed into it. It ought to be penetrated with the peculiarities of his character. It is "spiritlessness," in the strict sense of that word, which renders so many legal treatises fiat, stale, and, though working lawyers fail to perceive this, in the end unprofitable. Who for a moment ever fancied that he could find individuality, character, style, in any of the score of volumes manufactured by the Chitty family ? This legal clan were not wanting in know- ledge, in talent, nor, it may be presumed, in personal vigour. But in their books nothing of individuality is seen. No reader dreams of distinguishing one Chitty from another, or of asking what were the qualities of the writer whose pages he is reading. A succession, that is to say, of hard-working, meri- torious lawyers who have written on one legal topic after another, have made no single contribution to the literature of England. With Mr. Pollock, as with the new school to whom he belongs, it is very different. To no one who reads his books will he be a mere abstraction. Personal modes of thought and of expression are tra:ceable in every page. Take these few sentences, picked out nearly at random, as an example of our meaning :— "To start from the simplest case, we may know that the man intended to produce a certain consequence, and did produce it. And we may have independent proof of the intention ; as if he announced it beforehand by threats or boasting of what he would do. But oftentimes the act itself is the chief or sole proof of the intention with which it is done. If we see Nym walk up to Pistol and knock him down, we infer that Pistol's fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has no real intention at all, at any rate none which can be imputed to Nym awake. But we do naturally infer intention, and the chances
are greatly in favour of our being right Now take the case of Nym knocking Pistol over a bank into the ditch. We will suppose there is nothing to show whether Nym knew the ditch was there ; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough insoluble How shall we deal with them ? We shall disregard them The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only con- sequential on the strictly wilful wrong Such an explana-
tion as this—' I did mean to knock you down, but I meant you not to fall into the ditch '—would, even if believed, be the lamest of apologies, and it would no less be a vain excuse in law."
Here, whatever you may-think of the doctrine laid down, you have as much raciness and individuality as can be well given to the treatment of any abstract topic ; and force of style is here, as is generally the case, connected with vigour of thought The expressions cited, though their effect is a good deal spoilt by our inability for want of space to reproduce the passage in extenso, contain as good a statement as can be given of the true meaning to be attached to the term "natural cot - sequences " of an act; and this statement brings into light the fundamental principle of all civilised law, that law-givers and Judges have to deal with acts far more than with motives. This, as ought to be carefully noted, is so not because law is immoral or unmoral, but because in proportion as men's ethical ideas deepen, they perceive with the greater clearness that the spheres of law and of morality are different ; that legislators and Judges must deal with external acts, and must attempt to prevent all action which is generally injurious to mankind ; whilst morality looks more to character than to act, has its seat in the conscience, and is more concerned with character than with action.
Here, however, we pass from our author's merits as a man of letters to his powers as a thinker. If there is any one who imagines that capacity for abstract thought and elaborate training in philosophic speculation are of no advantage in dealing with a special province of law, the least study of the book under review will convince him of his error. No portion of English law has been hitherto treated so confusedly as the rules which make up the law of torts. The best-known works on the subject—such, for example, as Addison's treatise—are simply planless mazes. Mr. Pollock's book is, considering its topic, a small one; yet it covers the whole of the field which it is
intended to cover, and it reduces the treatment of wrongs to a
thoroughly intelligible scheme. This is just one of the feats
which, though it appears easy when a man of capacity has per- formed it., is of itself not easy of achievement. Our author has succeeded because he has followed a course rarely pursued by writers of English text-books. He has, in the first place, investigated and defined the exact nature of his subject. We do not for a moment assert that his analysis of the "normal idea of a tort" is not open to criticism: the merit of such analyses is that even where not perfect, they excite fruitful discussion, and guide inquirers to the diffi- cult points which deserve consideration. What we do assert is that the ingenious attempt to give some precision to such a vague notion as a tort, and to show the reader what are the elements which go to make up this notion, is the first step towards a scientific, or, in other words, a rational and sensible explanation of the law of torts. Mr. Pollock has, in the next place, devoted an infinity of care to the treatment in the general part of his work of all those considerations which are common to all torts,—such, for example, as the principles of liability, the persons affected by torts, the general exceptions, or, in other words, the conditions which exclude liability for acts prima' -facie 'wrongful, and the like. This separation between the general principles of the law of wrongs and the description of specific classes of torts, is the most remarkable and the most valuable feature in Mr. Pollock's treatise. Good arrangement is at least one-half of- sound exposition. Order is often equivalent to explanation. Two results flow at once from the skilful and logical distribution of a legal topic, first into its general principles, and next into specific subjects governed by these principles. The whole subject is, in the first place, made visible, so to speak, as a whole. The specific portions which need separate treatment—in this case, specific kinds of tort such as, for example, personal wrongs, wrongs to possession and property—are, in the next place, treated both with a clearness and with a brevity absolutely unattainable by any writer, whatever his learning and capacity, who has not trained himself to place clearly before his own mind and before the minds of his readers, all the general considerations which apply to the whole of his subject. Renee Mr. Pollock has contrived in less than three hundred pages to give a perfectly clear account of all the special characteristics of the different injurious acts which are described by the law of torts. Let any one who thinks this an easy achievement, try without pursuing our author's method to achieve the same result with .equal
clefimess and in as few words. The effort, successful or not, will certainly not diminish his appreciation of Mr. Pollock's skill as a writer, and power as a thinker.
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