Vol. IV
1890-91
CAMBRIDGE, MASS.
Published by the Harvard Law Review Publishing Association
1891
Copyright, 1891
By the Harvard Law Review Publishing Association
HARVARD
LAW REVIEW.
| Vol. IV. | DECEMBER 15, 1890. | No. 5. |
"It could be done only on principles of private justice, moral fitness,and public convenience, which, when applied to a new subject, makecommon law without a precedent; much more when received andapproved by usage."
That the individual shall have full protection in person andin property is a principle as old as the common law; butit has been found necessary from time to time to define anew theexact nature and extent of such protection. Political, social, andeconomic changes entail the recognition of new rights, and thecommon law, in its eternal youth, grows to meet the demands ofsociety. Thus, in very early times, the law gave a remedy onlyfor physical interference with life and property, for trespasses viet armis. Then the "right to life" served only to protect thesubject from battery in its various forms; liberty meant freedomfrom actual restraint; and the right to property secured to the individualhis lands and his cattle. Later, there came a recognition ofman's spiritual nature, of his feelings and his intellect. Graduallythe scope of these legal rights broadened; and now the right tolife has come to mean the right to enjoy life,—the right to be letalone; the right to liberty secures the exercise of extensive civilprivileges; and the term "property" has grown to comprise everyform of possession—intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, theprotection against actual bodily injury was extended to prohibitmere attempts to do such injury; that is, the putting another in[194]fear of such injury. From the action of battery grew that of assault.[1]Much later there came a qualified protection of the individualagainst offensive noises and odors, against dust and smoke,and excessive vibration. The law of nuisance was developed.[2] Soregard for human emotions soon extended the scope of personalimmunity beyond the body of the individual. His reputation, thestanding among his fellow-men, was considered, and the law ofslander and libel arose.[3] Man's family relations became a part ofthe legal conception of his life, and the alienation of a wife's affectionswas held remediable.[4] Occasionally the law halted,—as inits refusal to recognize the intrusion by seduction upon the honor ofthe family. But even here the demands of society were met. Amean fiction, the action per quod servitium amisit,