it, malicious prosecution,
slander and libel--developed procedurally through the action of
trespass and the action of trespass on the case. All of these, except
trespass on lands, trespass upon possession of chattels and
conversion, are cases of intentional injury. Trespass on lands,
trespass on chattels and conversion involve more than the general
security and must be considered in connection with ideas of property.
The social interest in security of acquisitions demands that we be
able to rely on others keeping off of our lands and not molesting our
chattels; that they find out for themselves and at their own risk
where they are or with whose chattels they are meddling. But even here
there must be an act. If there is no act, there is no liability. To
these nominate torts, each with its own special rules, coming down
from the strict law, we added a new ground of liability, namely,
negligence, going on a principle, not of duty to answer for
aggression, but of duty to answer for injuries resulting from falling
short of a legal standard of conduct governing affirmative courses of
action. Some, indeed, sought to give us a "tort of negligence" as a
nominate tort. But it was soon recognized that in negligence we have a
principle of liability dependent upon a standard, not a tort to be
ranged alongside of assault or imprisonment. Later, with the rise of
doctrines as to injury to advantageous relations and the failure of
negligence to account for all unintended harms of which the law
actually was taking note, we developed an indefinite number of
innominate torts. Today with the obsolescence of procedural
difficulties, there is no reason why we should not generalize, as the
civil law did at the beginning of the last century; and such a
generalization was attempted in the last third of the nineteenth
century. It became orthodox common law that liability was a corollary
of fault. So far as established common-law rules imposed a liability
without fault, they were said to be historical exceptions, and some of
our courts, under the influence of this theory, were willing to go a
long way in abrogating them. Liability, without regard to fault, for
the acts of servants and employees was reconciled with this theory by
the fiction of representation, exposed long ago by Mr. Justice Holmes
and later by Dr. Baty. Finally it came to be thought that no liability
without fault was not merely common law but was natural law and that
any legislat