194 HARVARD LAW REVIEW. iesLT of such injury. From the action of battery grew that of as- sault.i Much later there came a qualified protection of the indi- vidual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.^ So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose.^ Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affec- tions was held remediable.* Occasionally the law halted, — as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action J)er quod servitmm amisit^ was resorted to, and by allowing damages for injury to the parents' feelings, an ade- quate remedy was ordinarily afforded.'^ Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it ; and then there opened the wide realm of intangible property, in the products and processes of the mind,^ ^ Year Book, Lib. Ass., folio 99, pi. 60(1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault.
- 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 recogni- tion of the value of human sensations. 8 Year Book, Lib. Ass., folio 177, pi. 19(1356), (2 Finl. Reeves Eng. Law, 395) seems to be the earliest reported case of an action for slander.
- Winsmore v. Greenbank, Willes, 577 (1745).
6 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 Wis. 612, 623 (i88i). First the fiction of constructive service was invented; Martin z^. Payne, 9 John. 387 (181 2). 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. 1 19 (1800); Andrews z/. 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. Fleming- ton 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 ear- marked 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 there- from are complicated,'* Erie, J., in Jefiferys v. Boosey, 4 H. L. C. 815, 869 (1854).
