Samuel D. Warren,
Louis D. Brandeis.
Boston, December, 1890.
FOOTNOTES:
[1] Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault.
[2] These nuisances are technically injuries to property; but the recognition of the right to have property free from interference by such nuisances involves also a recognition of the value of human sensations.
[3] Year Book, Lib. Ass., folio 177, p. 19 (1356), (2 Finl. Reeves Eng. Law, 395) seems to be the earliest reported case of an action for slander.
[4] Winsmore v. Greenbank, Willes, 577 (1745).
[5] Loss of service is the gist of the action; but it has been said that "we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages." Cassoday, J., in Lavery v. Crooke, 52 Wls. 612, 623 (1881). First the fiction of constructive service was invented; Martin v. Payne, 9 John. 387 (1812). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford v. McKowl, 3 Esp. 119 (1800); Andrews v. Askey, 8 C. & P. 7 (1837); Phillips v. Hoyle, 4 Gray, 568 (1855); Phelin v. Kenderdine, 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent's person, for ordinarily mere injury to parental feelings is not an element of damage, e.g., the suffering of the parent in case of physical injury to the child. Flemington v. Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R. R. Co., 10 La. Ann. 33 (1855); Covington Street Ry. Co. v. Packer, 9 Bush, 455 (1872).
[6] "The notion of Mr. Justice Yates that nothing is property which cannot be earmarked and recovered in detinue or trover, may be true in an early stage of society, when property is in its simple form, and the remedies for violation of it also simple, but is not true in a more civilized state, when the relations of life and the interests arising therefrom are complicated." Erie, J., in Jefferys v. Boosey, 4 H. L. C. 815, 869 (1854).
[7] Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright, 54, 61.