Page:Harvard Law Review Volume 8.djvu/222

206 206 HARVARD LAW REVIEW. of each one of the common so-called Torts, — conversion, defama- tion, loss of service, etc., — no less than in case and trespass. It has been customary to treat th^ subject of Negligence as if it were a specific injury by itself, instead of merely a question of Responsi- bility liable to arise in connection with various kinds of harm ; but this obscures the true situation. Speaking roughly, a man may be made responsible for a given harm by initiatory action of one of three sorts: by acting (i) designedly, with reference to the harm ; (2) negligently, with reference to^ it; (3) at peril, in putting his hand to some nearly related deed or some unlawful act. A part of the law is occupied with determining whether or not this last and strictest standard shall be applied ; and when it is, no resort is needed to the second standard, negligence. Thus it happens that, as almost all direct dealing with personal property is done at peril, the question of negligence (or of knowledge) seldom arises in that connection. Yet it may arise ; ^ and thus, even though the treat- ment of the Responsibility element — mainly negligence and acting at peril — under the head of Conversion is trifling in com- parison with its place in injuries covered by trespass and trespass on the case, still it has its rightful place there as elsewhere. Take, again. Libel. Two cases of recent occurrence will illus- trate the part played by the Responsibility element, (i) The Trustees of the British Museum placed in the Library a book con- taining matter assumed to be libellous ; the question arises whether they are responsible for its publication (in the technical sense) without knowledge of the presence of the libellous passage (/. e. whether they acted at peril) or are to be judged by some test of due care. (2) Li Chicago, a young priest. Father Sherman, de- livered a lecture, and in handing to the reporters his manuscript gave to them inadvertently a portion, not orally delivered, contain- ing passages which we may assume to have been libellous. The question arises whether he acted at peril in writing and carrying about this libel, or is to be judged only by the test of due care. Take, also, loss of service and analogous injuries. The question is constantly likely to arise whether the consequences of certain con- duct were such as a person of ordinary prudence ought to have foreseen. In Vicars. Wilcocks^ Lord Ellenborough laid down a rule that special damage " must be the legal and natural conse- 1 Wellington v, Wentivorth, 8 Mete. 548; Nelson v. Whetmore, i Rich. 318. 3 8 East, I.