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The Germanic nations were accustomed to compound for the taking of life by a money payment, made in part to the king, and in part to the family of the person slain. This was less barbarous than the method of abandoning the slayer to private vengeance, because it partook of orderly government. But like that, it was suited only to periods of violence, and to people accustomed to protect themselves by strength and valor, instead of looking for redress to the government which should afford it. To demand a money payment for the taking of a life was to give to it no reasonable security whatever; it rather held out inducement to the indulgence of passion by promising immunity at so slight a sacrifice. Wiser laws take notice of the fact that when the passion or depravity is equal to the taking of human life, the government cannot reasonably hope to restrain it, unless the consequences threatened are such as the passionate or depraved would fear the most. In this view, the least that could be threatened would be the loss of whatever renders life valuable, namely, the liberty; the most that could be threatened would be to take the life itself.
But it is manifest that in thus punishing the taking of life, the government gives no protection in the particular case, but instead, is giving indirect protection in other cases. It is impossible to protect life as property is protected, by giving private remedies. Preventive remedies, such as injunction and mandamus, could be of no avail, for they could command no more than the law itself commands. Threats might justify requiring sureties for the peace, but the proceeding to obtain these is criminal rather than civil, and of little avail where the real peril is to the life. And supposing the man actually slain, whether through inadvertence or of purpose, a remedy on his behalf has become impossible, since the very act which would give a cause of action would also terminate the existence of the person entitled to it.
If there are taken into the account the many ways in which one person may have an interest in the life of another-the husband in that of the wife, the wife in that of the husband, the child in that of the parent, and so on-it may seem a little remarkable that the common law, after death had been made the penalty for the felonious taking of human life, should not have
'Crabbe's Hist. of English Law. 35-37; Reeves' Hist. of English Law, Ch. L
allowed the damages suffered by others from an unlawful killing to be recovered. The interest which husband and wife possess in each other's life must usually have a pecuniary value which would be estimated for many purposes at a large sum in the dealings with others; as for instance in those relating to insurance; and to the parties themselves, would be invaluable; but when not noticed by the law as a ground for an action, it could only ' have the incidental and indirect protection which the criminal laws afford; the government thus disregarding the private injury and punishing only the public injury. Here, again, if we speak of a man's estate as that aggregate of possessions which on his decease will pass to his representatives, why should not the money value of his life, when it has been taken away by unlawful act or negligence, be a right of action in the hands of his representatives? It is agreed, however, that the common law made no award of compensation in these cases.' If we look for the reasons, we find them variously stated. One that is assigned is the repugnance of the common law to any estimate of the pecuniary value of human life. If the proposition were that a money estimate should be made of the life for the purpose of determining the proper penalty for a felonious homicide, this repugnance would be perfectly reasonable. It would also be reasonable that the law should refuse to estimate the money value of a life against one who, without fault, had been the instrument or
Higgins . Butcher, 1 Brownl. 205; Yelv. 89; Baker v. Bolton, 1 Camp. N. P. 493; Carey v. Berkshire R. R. Co., 1 Cush. 475; Kearney v. Boston & Worcester R. R. Co., 9 Cush. 109; Quin e. Moore, 15 N. Y. 433; Whitford . Panama R. R. Co., 23 N. Y. 465; Eden . L. & T. R. Co., 14 B. Mon. 204; Conn. Mu. Life Ins. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265; Ohio & M. R. R. Co. v. Tindall, 13 Ind. 366; Kramer o. San Francisco, etc., R. R. Co., 25 Cal. 434; Sherman *. Johnson, 58 Vt. 40. In Sullivan v. Union Pac. R. R. Co., 3 Dill. 334, Judge DILLON questions the conclusions in these cases, and is inclined to hold that the father may, at common law, maintain suit for loss of services of his minor son by a wrong
ful act by which he is instantaneously killed. He cites and places some reliance upon Ford v. Monroe, 20 Wend. 210, where a father whose minor child was killed, was allowed to recover for loss of services, not merely up to the death, but for the whole period of minority. See Pennsylvania R. R. Co. v. Zebe, 33 Penn. St. 318. An insurance company cannot recover from the slayer for the death of a man by reason of which it has been compelled to pay a policy. Ins. Co. v. Brame, 95 U. S., 754.
'Hyatt v. Adams, 16 Mich. 180, 191, per CHRISTIANCY, J.: "The life of a freeman cannot be appraised, but that of a slave who might have been sold may." Grotius.
occasion of its loss. But if life were taken by the wrongful act or default of another, whether felonious or not, the sentimental objection to making an estimate of the value in money by way of compensation to the persons wronged, could have little of the ordinary hard reason of the law in its support. It was making a sentimental scruple of more importance than justice itself, and in cases in which the killing was through some degree of negligence, but not negligence of that extreme character which would make plain the road to criminal conviction, it defeated justice entirely. Where the killing was felonious it was also said that the common law would not award compensation, because the private injury was drowned in and swallowed up by the public injury; a purely arbitrary reason, and one which might with more justice have been applied in the cases of public wrongs where the private injury was less extreme. But the reason, such as it was, fails utterly in this country, where the doctrine of the merger of private wrongs in public wrongs is not recognized. We have, therefore, the rule of the common law left to us, but without even the inadequate reasons by which the common law supported it.
From this statement it will appear that Lord Campbell's act, which gave an action for the benefit of the surviving husband or wife, parent or child of the person whose death should be occasioned by the wrongful act, neglect or default of another, and allowed the value of the life to be assessed by way of compensation, was an act which gave new and important rights. It gave to husband, wife, parent and child, in addition to the rights recognized by the common law, a new and important interest in each other's life. It imposed upon all persons the duty to obey all such laws and observe all such precautions as might be needful to prevent their causing the loss of human life by wrongful act, neglect or default; and imposing this for the benefit of the relatives designated, the correlative right was their right, even though the action on breach of duty was to be brought in the name of the personal representative of the person killed. The act, which in its main features, has been generally adopted in this country, has relieved the law from the glaring absurdity of recognizing claims to service, nurture, support, etc., any inter
See next Chapter.
19 and 10 Vic. c. 93.
ference with which might give a right of action, but the destruction of which would give no action whatever.
Personal Immunity. The right to one's person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction. of an injury. In this particular the duty goes beyond what is required in most cases; for usually an unexecuted purpose or an unsuccessful attempt is not noticed. But the attempt to commit. a battery involves many elements of injury not always present in breaches of duty; it involves usually an insult, a putting in fear, a sudden call upon the energies for prompt and effectual resistance. There is very likely a shock to the nerves, and the peace and quiet of the individual is disturbed for a period of greater or less duration. There is consequently abundant reason in support of the rule of law which makes the assault a legal wrong, even though no battery takes place. Indeed, in this case the law goes still further and makes the attempted blow a criminal offense also.
Threats and Words. A threat to commit an injury is also sometimes made a criminal offense, but it is not actionable private wrong.' Many reasons may be assigned for distinguishing between this case and that of an assault, one of them being that the threat only promises a future injury, and usually gives ample opportunity to provide against it, while an assault must be resisted on the instant. But the principal reason, perhaps, is found in the reluc tance of the law to give a cause of action for mere words. Words never constitute an assault, is a time honored maxim.' Words may be thoughtlessly spoken; they may be misunderstood; they may hawe indicated to the person threatened nothing but momentary spleen or anger, though when afterward reported by witnesses they seem to express deliberate malice and purpose to injure.
-Threatening not to employ a man who remains a tenant of a certain landlord, gives the latter no right of action against the employer. Hey. wood . Tillson, 75 Me. 225.
Smith v. State, 39 Miss. 521; State . Mooney, Phill. (N. C.) L. 434. Even though the party at the time has by his side a deadly weapon, which,
however, he makes no attempt to use. Warren v. State, 33 Texas, 517; Cutler v. State, 59 Ind. 300. To point an unloaded pistol at one, at the same time threatening him, is not a legal injury when neither the pointing nor the making the threat would be an injury. McKay v. State, 44 Tex, 43, and see cases 161 n. 1, post.
Even when defamation is complained of the law is very careful to require something more than expressions of anger, reproach, or contempt, before it will interfere; justly considering that it is safer to allow too much liberty than to interpose too much
restraint. And comparing assaults and threats, another [*30] *important difference is to be noted: In the case of threats,
as has been stated, preventive remedies are available; but against an assault there are usually none beyond what the party assaulted has in his own power of physical resistance.
Right to Reputation. The law also gives to every man a right to security in his reputation. Perhaps a more accurate statement would be, that it gives him a right to be protected in acquiring, and then in maintaining, a good reputation. Even this does not state the point with entire accuracy, since one may obtain a good reputation when deserving a bad reputation; and in a reputation to which one is not entitled he has no greater claim to protection than he would have in anything else his claim to which was fictitious.
The subject might be illustrated by supposing the case of one coming into a community as an entire stranger. When he comes he can have there no reputation, either good or bad; but he has a right, by good conduct, to acquire a good repute, and there may be said to be a moral obligation resting upon him to do so, since it is his duty to observe the rules of good conduct, and this will be likely to bring him good repute. If, therefore, evilminded or thoughtless persons, by inventions or insinuations to his discredit, prevent his acquiring a good repute, they thereby invade his right, and he should have the appropriate redress. Referring now to what has already been said of the reluctance of the law to make mere words a ground of action, and postponing explanations to a future occasion, it will suffice for our present purpose to say that the remay be interference, provided the following things appear: (1) A false charge or insinuation which (2) is made in malice, and (3) causes damage by its effect on the standing and reputation of the plaintiff. Now it may be that in the case supposed it will be found impracticable to show by evidence of a positive nature that any of the elements of injury exist. First, the evidence of falsity may be wanting, because the charge may relate to something in the plaintiff's past history