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+The Project Gutenberg EBook of The Common Law, by Oliver Wendell Holmes, Jr.
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Common Law
+
+Author: Oliver Wendell Holmes, Jr.
+
+Release Date: December, 2000  [Etext #2449]
+Last Updated: July 17, 2012
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE COMMON LAW ***
+
+
+
+
+Produced by Stuart E. Thiel
+
+
+
+
+
+THE COMMON LAW
+
+By Oliver Wendell Holmes, Jr.
+
+
+
+Conventions:
+
+Numbers in square brackets (e.g. [245]) refer to original page
+numbers. Original footnotes were numbered page-by-page, and are
+collected at the end of the text. In the text, numbers in slashes
+(e.g./1/) refer to original footnote numbers. In the footnote
+section, a number such as 245/1 refers to (original) page 245,
+footnote 1. The footnotes are mostly citations to old English law
+reporters and to commentaries by writers such as Ihering, Bracton
+and Blackstone. I cannot give a source for decrypting the
+notation.
+
+There is quite a little Latin and some Greek in the original
+text. I have reproduced the Latin. The Greek text is omitted; its
+place is marked by the expression [Greek characters]. Italics and
+diacritical marks such as accents and cedillas are omitted and
+unmarked.
+
+Lecture X has two subheads--Successions After Death and
+Successions Inter Vivos. Lecture XI is also titled Successions
+Inter Vivos. This conforms to the original.
+
+
+
+
+LECTURE I. -- EARLY FORMS OF LIABILITY.
+
+[1] The object of this book is to present a general view of the
+Common Law. To accomplish the task, other tools are needed
+besides logic. It is something to show that the consistency of a
+system requires a particular result, but it is not all. The life
+of the law has not been logic: it has been experience. The felt
+necessities of the time, the prevalent moral and political
+theories, intuitions of public policy, avowed or unconscious,
+even the prejudices which judges share with their fellow-men,
+have had a good deal more to do than the syllogism in determining
+the rules by which men should be governed. The law embodies the
+story of a nation's development through many centuries, and it
+cannot be dealt with as if it contained only the axioms and
+corollaries of a book of mathematics. In order to know what it
+is, we must know what it has been, and what it tends to become.
+We must alternately consult history and existing theories of
+legislation. But the most difficult labor will be to understand
+the combination of the two into new products at every stage. The
+substance of the law at any given time pretty nearly [2]
+corresponds, so far as it goes, with what is then understood to
+be convenient; but its form and machinery, and the degree to
+which it is able to work out desired results, depend very much
+upon its past.
+
+In Massachusetts today, while, on the one hand, there are a great
+many rules which are quite sufficiently accounted for by their
+manifest good sense, on the other, there are some which can only
+be understood by reference to the infancy of procedure among the
+German tribes, or to the social condition of Rome under the
+Decemvirs.
+
+I shall use the history of our law so far as it is necessary to
+explain a conception or to interpret a rule, but no further. In
+doing so there are two errors equally to be avoided both by
+writer and reader. One is that of supposing, because an idea
+seems very familiar and natural to us, that it has always been
+so. Many things which we take for granted have had to be
+laboriously fought out or thought out in past times. The other
+mistake is the opposite one of asking too much of history. We
+start with man full grown. It may be assumed that the earliest
+barbarian whose practices are to be considered, had a good many
+of the same feelings and passions as ourselves.
+
+The first subject to be discussed is the general theory of
+liability civil and criminal. The Common Law has changed a good
+deal since the beginning of our series of reports, and the search
+after a theory which may now be said to prevail is very much a
+study of tendencies. I believe that it will be instructive to go
+back to the early forms of liability, and to start from them.
+
+It is commonly known that the early forms of legal procedure were
+grounded in vengeance. Modern writers [3] have thought that the
+Roman law started from the blood feud, and all the authorities
+agree that the German law begun in that way. The feud led to the
+composition, at first optional, then compulsory, by which the
+feud was bought off. The gradual encroachment of the composition
+may be traced in the Anglo-Saxon laws, /1/ and the feud was
+pretty well broken up, though not extinguished, by the time of
+William the Conqueror. The killings and house-burnings of an
+earlier day became the appeals of mayhem and arson. The appeals
+de pace et plagis and of mayhem became, or rather were in
+substance, the action of trespass which is still familiar to
+lawyers. /2/ But as the compensation recovered in the appeal was
+the alternative of vengeance, we might expect to find its scope
+limited to the scope of vengeance. Vengeance imports a feeling of
+blame, and an opinion, however distorted by passion, that a wrong
+has been done. It can hardly go very far beyond the case of a
+harm intentionally inflicted: even a dog distinguishes between
+being stumbled over and being kicked.
+
+Whether for this cause or another, the early English appeals for
+personal violence seem to have been confined to intentional
+wrongs. Glanvill /3/ mentions melees, blows, and wounds,--all
+forms of intentional violence. In the fuller description of such
+appeals given by Bracton /4/ it is made quite clear that they
+were based on intentional assaults. The appeal de pace et plagis
+laid an intentional assault, described the nature of the arms
+used, and the length and depth of the wound. The appellor also
+had [4] to show that he immediately raised the hue and cry. So
+when Bracton speaks of the lesser offences, which were not sued
+by way of appeal, he instances only intentional wrongs, such as
+blows with the fist, flogging, wounding, insults, and so forth.
+/1/ The cause of action in the cases of trespass reported in the
+earlier Year Books and in the Abbreviatio Plaeitorum is always an
+intentional wrong. It was only at a later day, and after
+argument, that trespass was extended so as to embrace harms which
+were foreseen, but which were not the intended consequence of the
+defendant's act. /2/ Thence again it extended to unforeseen
+injuries. /3/
+
+It will be seen that this order of development is not quite
+consistent with an opinion which has been held, that it was a
+characteristic of early law not to penetrate beyond the external
+visible fact, the damnum corpore corpori datum. It has been
+thought that an inquiry into the internal condition of the
+defendant, his culpability or innocence, implies a refinement of
+juridical conception equally foreign to Rome before the Lex
+Aquilia, and to England when trespass took its shape. I do not
+know any very satisfactory evidence that a man was generally held
+liable either in Rome /4/ or England for the accidental
+consequences even of his own act. But whatever may have been the
+early law, the foregoing account shows the starting-point of the
+system with which we have to deal. Our system of private
+liability for the consequences of a man's own acts, that is, for
+his trespasses, started from the notion of actual intent and
+actual personal culpability.
+
+The original principles of liability for harm inflicted by [5]
+another person or thing have been less carefully considered
+hitherto than those which governed trespass, and I shall
+therefore devote the rest of this Lecture to discussing them. I
+shall try to show that this liability also had its root in the
+passion of revenge, and to point out the changes by which it
+reached its present form. But I shall not confine myself strictly
+to what is needful for that purpose, because it is not only most
+interesting to trace the transformation throughout its whole
+extent, but the story will also afford an instructive example of
+the mode in which the law has grown, without a break, from
+barbarism to civilization. Furthermore, it will throw much light
+upon some important and peculiar doctrines which cannot be
+returned to later.
+
+A very common phenomenon, and one very familiar to the student of
+history, is this. The customs, beliefs, or needs of a primitive
+time establish a rule or a formula. In the course of centuries
+the custom, belief, or necessity disappears, but the rule
+remains. The reason which gave rise to the rule has been
+forgotten, and ingenious minds set themselves to inquire how it
+is to be accounted for. Some ground of policy is thought of,
+which seems to explain it and to reconcile it with the present
+state of things; and then the rule adapts itself to the new
+reasons which have been found for it, and enters on a new career.
+The old form receives a new content, and in time even the form
+modifies itself to fit the meaning which it has received. The
+subject under consideration illustrates this course of events
+very clearly.
+
+I will begin by taking a medley of examples embodying as many
+distinct rules, each with its plausible and seemingly sufficient
+ground of policy to explain it.
+
+[6] A man has an animal of known ferocious habits, which escapes
+and does his neighbor damage. He can prove that the animal
+escaped through no negligence of his, but still he is held
+liable. Why? It is, says the analytical jurist, because, although
+he was not negligent at the moment of escape, he was guilty of
+remote heedlessness, or negligence, or fault, in having such a
+creature at all. And one by whose fault damage is done ought to
+pay for it.
+
+A baker's man, while driving his master's cart to deliver hot
+rolls of a morning, runs another man down. The master has to pay
+for it. And when he has asked why he should have to pay for the
+wrongful act of an independent and responsible being, he has been
+answered from the time of Ulpian to that of Austin, that it is
+because he was to blame for employing an improper person. If he
+answers, that he used the greatest possible care in choosing his
+driver, he is told that that is no excuse; and then perhaps the
+reason is shifted, and it is said that there ought to be a remedy
+against some one who can pay the damages, or that such wrongful
+acts as by ordinary human laws are likely to happen in the course
+of the service are imputable to the service.
+
+Next, take a case where a limit has been set to liability which
+had previously been unlimited. In 1851, Congress passed a law,
+which is still in force, and by which the owners of ships in all
+the more common cases of maritime loss can surrender the vessel
+and her freight then pending to the losers; and it is provided
+that, thereupon, further proceedings against the owners shall
+cease. The legislators to whom we owe this act argued that, if a
+merchant embark a portion of his property upon a hazardous
+venture, it is reasonable that his stake should be confined to
+what [7] he puts at risk,--a principle similar to that on which
+corporations have been so largely created in America during the
+last fifty years.
+
+It has been a rule of criminal pleading in England down into the
+present century, that an indictment for homicide must set forth
+the value of the instrument causing the death, in order that the
+king or his grantee might claim forfeiture of the deodand, "as an
+accursed thing," in the language of Blackstone.
+
+I might go on multiplying examples; but these are enough to show
+the remoteness of the points to be brought together.--As a first
+step towards a generalization, it will be necessary to consider
+what is to be found in ancient and independent systems of law.
+
+There is a well-known passage in Exodus, /1/ which we shall have
+to remember later: "If an ox gore a man or a woman, that they
+die: then the ox shall be surely stoned, and his flesh shall not
+be eaten; but the owner of the ox shall be quit." When we turn
+from the Jews to the Greeks, we find the principle of the passage
+just quoted erected into a system. Plutarch, in his Solon, tells
+us that a dog that had bitten a man was to be delivered up bound
+to a log four cubits long. Plato made elaborate provisions in his
+Laws for many such cases. If a slave killed a man, he was to be
+given up to the relatives of the deceased. /2/ If he wounded a
+man, he was to be given up to the injured party to use him as he
+pleased. /3/ So if he did damage to which the injured party did
+not contribute as a joint cause. In either case, if the owner [8]
+failed to surrender the slave, he was bound to make good the
+loss. /1/ If a beast killed a man, it was to be slain and cast
+beyond the borders. If an inanimate thing caused death, it was to
+be cast beyond the borders in like manner, and expiation was to
+be made. /2/ Nor was all this an ideal creation of merely
+imagined law, for it was said in one of the speeches of
+Aeschines, that "we banish beyond our borders stocks and stones
+and steel, voiceless and mindless things, if they chance to kill
+a man; and if a man commits suicide, bury the hand that struck
+the blow afar from its body." This is mentioned quite as an
+every-day matter, evidently without thinking it at all
+extraordinary, only to point an antithesis to the honors heaped
+upon Demosthenes. /3/ As late as the second century after Christ
+the traveller Pausanias observed with some surprise that they
+still sat in judgment on inanimate things in the Prytaneum. /4/
+Plutarch attributes the institution to Draco. /5/
+
+In the Roman law we find the similar principles of the noxoe
+deditio gradually leading to further results. The Twelve Tables
+(451 B.C.) provided that, if an animal had done damage, either
+the animal was to be surrendered or the damage paid for. /6/ We
+learn from Gains that the same rule was applied to the torts of
+children or slaves, /7/ and there is some trace of it with regard
+to inanimate things.
+
+The Roman lawyers, not looking beyond their own [9] system or
+their own time, drew on their wits for an explanation which would
+show that the law as they found it was reasonable. Gaius said
+that it was unjust that the fault of children or slaves should be
+a source of loss to their parents or owners beyond their own
+bodies, and Ulpian reasoned that a fortiori this was true of
+things devoid of life, and therefore incapable of fault. /1/ This
+way of approaching the question seems to deal with the right of
+surrender as if it were a limitation of a liability incurred by a
+parent or owner, which would naturally and in the first instance
+be unlimited. But if that is what was meant, it puts the cart
+before the horse. The right of surrender was not introduced as a
+limitation of liability, but, in Rome and Greece alike, payment
+was introduced as the alternative of a failure to surrender.
+
+The action was not based, as it would be nowadays, on the fault
+of the parent or owner. If it had been, it would always have been
+brought against the person who had control of the slave or animal
+at the time it did the harm complained of, and who, if any one,
+was to blame for not preventing the injury. So far from this
+being the course, the person to be sued was the owner at the time
+of suing. The action followed the guilty thing into whosesoever
+hands it came. /2/ And in curious contrast with the principle as
+inverted to meet still more modern views of public policy, if the
+animal was of a wild nature, that is, in the very case of the
+most ferocious animals, the owner ceased to be liable the moment
+it escaped, because at that moment he ceased to be owner. /3/
+There [10] seems to have been no other or more extensive
+liability by the old law, even where a slave was guilty with his
+master's knowledge, unless perhaps he was a mere tool in his
+master's hands. /1/ Gains and Ulpian showed an inclination to cut
+the noxoe deditio down to a privilege of the owner in case of
+misdeeds committed without his knowledge; but Ulpian is obliged
+to admit, that by the ancient law, according to Celsus, the
+action was noxal where a slave was guilty even with the privity
+of his master. /2/
+
+All this shows very clearly that the liability of the owner was
+merely a way of getting at the slave or animal which was the
+immediate cause of offence. In other words, vengeance on the
+immediate offender was the object of the Greek and early Roman
+process, not indemnity from the master or owner. The liability of
+the owner was simply a liability of the offending thing. In the
+primitive customs of Greece it was enforced by a judicial process
+expressly directed against the object, animate or inanimate. The
+Roman Twelve Tables made the owner, instead of the thing itself,
+the defendant, but did not in any way change the ground of
+liability, or affect its limit. The change was simply a device to
+allow the owner to protect his interest. /3/
+
+But it may be asked how inanimate objects came to be [11] pursued
+in this way, if the object of the procedure was to gratify the
+passion of revenge. Learned men have been ready to find a reason
+in the personification of inanimate nature common to savages and
+children, and there is much to confirm this view. Without such a
+personification, anger towards lifeless things would have been
+transitory, at most. It is noticeable that the commonest example
+in the most primitive customs and laws is that of a tree which
+falls upon a man, or from which he falls and is killed. We can
+conceive with comparative ease how a tree might have been put on
+the same footing with animals. It certainly was treated like
+them, and was delivered to the relatives, or chopped to pieces
+for the gratification of a real or simulated passion. /1/
+
+In the Athenian process there is also, no doubt, to be traced a
+different thought. Expiation is one of the ends most insisted on
+by Plato, and appears to have been the purpose of the procedure
+mentioned by Aeschines. Some passages in the Roman historians
+which will be mentioned again seem to point in the same
+direction. /2/
+
+Another peculiarity to be noticed is, that the liability seems to
+have been regarded as attached to the body doing the damage, in
+an almost physical sense. An untrained intelligence only
+imperfectly performs the analysis by which jurists carry
+responsibility back to the beginning of a chain of causation. The
+hatred for anything giving us pain, which wreaks itself on the
+manifest cause, and which leads even civilized man to kick a door
+when it pinches his finger, is embodied in the noxoe deditio and
+[12] other kindred doctrines of early Roman law. There is a
+defective passage in Gaius, which seems to say that liability may
+sometimes be escaped by giving up even the dead body of the
+offender. /1/ So Livy relates that, Brutulus Papins having caused
+a breach of truce with the Romans, the Samnites determined to
+surrender him, and that, upon his avoiding disgrace and
+punishment by suicide, they sent his lifeless body. It is
+noticeable that the surrender seems to be regarded as the natural
+expiation for the breach of treaty, /2/ and that it is equally a
+matter of course to send the body when the wrong-doer has
+perished. /3/
+
+The most curious examples of this sort occur in the region of
+what we should now call contract. Livy again furnishes an
+example, if, indeed, the last is not one. The Roman Consul
+Postumius concluded the disgraceful peace of the Caudine Forks
+(per sponsionem, as Livy says, denying the common story that it
+was per feedus), and he was sent to Rome to obtain the sanction
+of the people. When there however, he proposed that the persons
+who had made the [13] contract, including himself, should be
+given up in satisfaction of it. For, he said, the Roman people
+not having sanctioned the agreement, who is so ignorant of the
+jus fetialium as not to know that they are released from
+obligation by surrendering us? The formula of surrender seems to
+bring the case within the noxoe deditio. /1/ Cicero narrates a
+similar surrender of Mancinus by the pater-patratus to the
+Numantines, who, however, like the Samnites in the former case,
+refused to receive him. /2/
+
+It might be asked what analogy could have been found between a
+breach of contract and those wrongs which excite the desire for
+vengeance. But it must be remembered that the distinction between
+tort and breaches of contract, and especially between the
+remedies for the two, is not found ready made. It is conceivable
+that a procedure adapted to redress for violence was extended to
+other cases as they arose. Slaves were surrendered for theft as
+well as [14] for assault; /1/ and it is said that a debtor who
+did not pay his debts, or a seller who failed to deliver an
+article for which he had been paid, was dealt with on the same
+footing as a thief. /2/ This line of thought, together with the
+quasi material conception of legal obligations as binding the
+offending body, which has been noticed, would perhaps explain the
+well-known law of the Twelve Tables as to insolvent debtors.
+According to that law, if a man was indebted to several creditors
+and insolvent, after certain formalities they might cut up his
+body and divide it among them. If there was a single creditor, he
+might put his debtor to death or sell him as a slave. /3/
+
+If no other right were given but to reduce a debtor to slavery,
+the law might be taken to look only to compensation, and to be
+modelled on the natural working of self-redress. /4/ The
+principle of our own law, that taking a man's body on execution
+satisfies the debt, although he is not detained an hour, seems to
+be explained in that way. But the right to put to death looks
+like vengeance, and the division of the body shows that the debt
+was conceived very literally to inhere in or bind the body with a
+vinculum juris.
+
+Whatever may be the true explanation of surrender in connection
+with contracts, for the present purpose we need not go further
+than the common case of noxoe deditio for wrongs. Neither is the
+seeming adhesion of liability to the very body which did the harm
+of the first importance. [15] The Roman law dealt mainly with
+living creatures,--with animals and slaves. If a man was run
+over, it did not surrender the wagon which crushed him, but the
+ox which drew the wagon. /1/ At this stage the notion is easy to
+understand. The desire for vengeance may be felt as strongly
+against a slave as against a freeman, and it is not without
+example nowadays that a like passion should be felt against an
+animal. The surrender of the slave or beast empowered the injured
+party to do his will upon them. Payment by the owner was merely a
+privilege in case he wanted to buy the vengeance off.
+
+It will readily be imagined that such a system as has been
+described could not last when civilization had advanced to any
+considerable height. What had been the privilege of buying off
+vengeance by agreement, of paying the damage instead of
+surrendering the body of the offender, no doubt became a general
+custom. The Aquilian law, passed about a couple of centuries
+later than the date of the Twelve Tables, enlarged the sphere of
+compensation for bodily injuries. Interpretation enlarged the
+Aquilian law. Masters became personally liable for certain wrongs
+committed by their slaves with their knowledge, where previously
+they were only bound to surrender the slave. /2/ If a pack-mule
+threw off his burden upon a passer-by because he had been
+improperly overloaded, or a dog which might have been restrained
+escaped from his master and bit any one, the old noxal action, as
+it was called, gave way to an action under the new law to enforce
+a general personal liability. /3/ Still later, ship-owners and
+innkeepers were made liable [16] as if they were wrong-doers for
+wrongs committed by those in their employ on board ship or in the
+tavern, although of course committed without their knowledge. The
+true reason for this exceptional responsibility was the
+exceptional confidence which was necessarily reposed in carriers
+and innkeepers. /1/ But some of the jurists, who regarded the
+surrender of children and slaves as a privilege intended to limit
+liability, explained this new liability on the ground that the
+innkeeper or ship-owner was to a certain degree guilty of
+negligence in having employed the services of bad men? This was
+the first instance of a master being made unconditionally liable
+for the wrongs of his servant. The reason given for it was of
+general application, and the principle expanded to the scope of
+the reason.
+
+The law as to ship-owners and innkeepers introduced another and
+more startling innovation. It made them responsible when those
+whom they employed were free, as well as when they were slaves.
+/3/ For the first time one man was made answerable for the wrongs
+of another who was also answerable himself, and who had a
+standing before the law. This was a great change from the bare
+permission to ransom one's slave as a privilege. But here we have
+the history of the whole modern doctrine of master and servant,
+and principal and agent. All servants are now as free and as
+liable to a suit as their masters. Yet the principle introduced
+on special grounds in a special case, when servants were slaves,
+is now the general law of this country and England, and under it
+men daily have to pay large sums for other people's acts, in
+which they had no part and [17] for which they are in no sense to
+blame. And to this day the reason offered by the Roman jurists
+for an exceptional rule is made to justify this universal and
+unlimited responsibility. /1/
+
+So much for one of the parents of our common law. Now let us turn
+for a moment to the Teutonic side. The Salic Law embodies usages
+which in all probability are of too early a date to have been
+influenced either by Rome or the Old Testament. The thirty-sixth
+chapter of the ancient text provides that, if a man is killed by
+a domestic animal, the owner of the animal shall pay half the
+composition (which he would have had to pay to buy off the blood
+feud had he killed the man himself), and for the other half give
+up the beast to the complainant. /2/ So, by chapter thirty-five,
+if a slave killed a freeman, he was to be surrendered for one
+half of the composition to the relatives of the slain man, and
+the master was to pay the other half. But according to the gloss,
+if the slave or his master had been maltreated by the slain man
+or his relatives, the master had only to surrender the slave. /3/
+It is interesting to notice that those Northern sources which
+Wilda takes to represent a more primitive stage of German law
+confine liability for animals to surrender alone. /4/ There is
+also a trace of the master's having been able to free himself in
+some cases, at a later date, by showing that the slave was no
+longer in [18] his possession. /1/ There are later provisions
+making a master liable for the wrongs committed by his slave by
+his command. /2/ In the laws adapted by the Thuringians from the
+earlier sources, it is provided in terms that the master is to
+pay for all damage done by his slaves. /4/
+
+In short, so far as I am able to trace the order of development
+in the customs of the German tribes, it seems to have been
+entirely similar to that which we have already followed in the
+growth of Roman law. The earlier liability for slaves and animals
+was mainly confined to surrender; the later became personal, as
+at Rome.
+
+The reader may begin to ask for the proof that all this has any
+bearing on our law of today. So far as concerns the influence of
+the Roman law upon our own, especially the Roman law of master
+and servant, the evidence of it is to be found in every book
+which has been written for the last five hundred years. It has
+been stated already that we still repeat the reasoning of the
+Roman lawyers, empty as it is, to the present day. It will be
+seen directly whether the German folk-laws can also be followed
+into England.
+
+In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) [19] it
+is said, "If any one's slave slay a freeman, whoever it be, let
+the owner pay with a hundred shillings, give up the slayer," &c.
+/1/ There are several other similar provisions. In the nearly
+contemporaneous laws of Ine, the surrender and payment are simple
+alternatives. "If a Wessex slave slay an Englishman, then shall
+he who owns him deliver him up to the lord and the kindred, or
+give sixty shillings for his life." /2/ Alfred's laws (A.D.
+871-901) have a like provision as to cattle. "If a neat wound a
+man, let the neat be delivered up or compounded for." /3/ And
+Alfred, although two hundred years later than the first English
+lawgivers who have been quoted, seems to have gone back to more
+primitive notions than we find before his time. For the same
+principle is extended to the case of a tree by which a man is
+killed. "If, at their common work, one man slay another
+unwilfully, let the tree be given to the kindred, and let them
+have it off the land within thirty nights. Or let him take
+possession of it who owns the wood." /4/
+
+It is not inapposite to compare what Mr. Tylor has mentioned
+concerning the rude Kukis of Southern Asia. "If a tiger killed a
+Kuki, his family were in disgrace till they had retaliated by
+killing and eating this tiger, or another; but further, if a man
+was killed by a fall from a tree, his relatives would take their
+revenge by cutting the tree down, and scattering it in chips."
+/5/
+
+To return to the English, the later laws, from about a hundred
+years after Alfred down to the collection known as the laws of
+Henry I, compiled long after the Conquest, [20] increase the
+lord's liability for his household, and make him surety for his
+men's good conduct. If they incur a fine to the king and run
+away, the lord has to pay it unless he can clear himself of
+complicity. But I cannot say that I find until a later period the
+unlimited liability of master for servant which was worked out on
+the Continent, both by the German tribes and at Rome. Whether the
+principle when established was an indigenous growth, or whether
+the last step was taken under the influence of the Roman law, of
+which Bracton made great use, I cannot say. It is enough that the
+soil was ready for it, and that it took root at an early day. /1/
+This is all that need be said here with regard to the liability
+of a master for the misdeeds of his servants.
+
+It is next to be shown what became of the principle as applied to
+animals. Nowadays a man is bound at his peril to keep his cattle
+from trespassing, and he is liable for damage done by his dog or
+by any fierce animal, if he has notice of a tendency in the brute
+to do the harm complained of. The question is whether any
+connection can be established between these very sensible and
+intelligible rules of modern law and the surrender directed by
+King Alfred.
+
+Let us turn to one of the old books of the Scotch law, where the
+old principle still appears in full force and is stated with its
+reasons as then understood, /2/
+
+"Gif ane wylde or head-strang horse, carries ane man [21] against
+his will over an craig, or heuch, or to the water, and the man
+happin to drowne, the horse sall perteine to the king as escheit.
+
+"Bot it is otherwise of ane tame and dantoned horse; gif any man
+fulishlie rides, and be sharp spurres compelles his horse to take
+the water, and the man drownes, the horse sould not be escheit,
+for that comes be the mans fault or trespasse, and not of the
+horse, and the man has receaved his punishment, in sa farre as he
+is perished and dead; and the horse quha did na fault, sould not
+be escheit.
+
+"The like reason is of all other beastes, quhilk slayes anie man,
+[it is added in a later work, "of the quhilk slaughter they haue
+gilt,"] for all these beasts sould be escheit." /1/
+
+"The Forme and Maner of Baron Courts" continues as follows:--
+
+"It is to witt, that this question is asked in the law, Gif ane
+lord hes ane milne, and any man fall in the damne, and be borne
+down with the water quhill he comes to the quheill, and there be
+slaine to death with the quheill; quhither aught the milne to be
+eseheir or not? The law sayes thereto nay, and be this reason,
+For it is ane dead thing, and ane dead thing may do na fellony,
+nor be made escheit throw their gilt. Swa the milne in this case
+is not culpable, and in the law it is lawfull to the lord of the
+land to haue ane mylne on his awin water quhere best likes him."
+/2/
+
+The reader will see in this passage, as has been remarked already
+of the Roman law, that a distinction is taken between things
+which are capable of guilt and those which [22] are not,--between
+living and dead things; but he will also see that no difficulty
+was felt in treating animals as guilty.
+
+Take next an early passage of the English law, a report of what
+was laid down by one of the English judges. In 1333 it was stated
+for law, that, "if my dog kills your sheep, and I, freshly after
+the fact, tender you the dog, you are without recovery against
+me." /1/ More than three centuries later, in 1676, it was said
+by Twisden, J. that, "if one hath kept a tame fox, which gets
+loose and grows wild, he that hath kept him before shall not
+answer for the damage the fox doth after he hath lost him, and he
+hath resumed his wild nature." /2/ It is at least doubtful
+whether that sentence ever would have been written but for the
+lingering influence of the notion that the ground of the owner's
+liability was his ownership of the offending: thing and his
+failure to surrender it. When the fox escaped, by another
+principle of law the ownership was at an end. In fact, that very
+consideration was seriously pressed in England as late as 1846,
+with regard to a monkey which escaped and bit the plaintiff, /3/
+So it seems to be a reasonable conjecture, that it was this way
+of thinking which led Lord Holt, near the beginning of the last
+century, to intimate that one ground on which a man is bound at
+his peril to restrain cattle from trespassing is that he has
+valuable property in such animals, whereas he has not dogs, for
+which his responsibility is less. /4/ To this day, in fact,
+cautious judges state the law as to cattle to be, that, "if I am
+the owner of an animal in which by law the [23] right of property
+can exist, I am bound to take care that it does not stray into
+the land of my neighbor." /1/
+
+I do not mean that our modern law on this subject is only a
+survival, and that the only change from primitive notions was to
+substitute the owner for the offending animal. For although it is
+probable that the early law was one of the causes which led to
+the modern doctrine, there has been too much good sense in every
+stage of our law to adopt any such sweeping consequences as would
+follow from the wholesale transfer of liability supposed. An
+owner is not bound at his peril to keep his cattle from harming
+his neighbor's person. /2/ And in some of the earliest instances
+of personal liability, even for trespass on a neighbor's land,
+the ground seems to have been the owner's negligence. /3/
+
+It is the nature of those animals which the common law recognizes
+as the subject of ownership to stray, and when straying to do
+damage by trampling down and eating crops. At the same time it is
+usual and easy to restrain them. On the other hand, a dog, which
+is not the subject of property, does no harm by simply crossing
+the land of others than its owner. Hence to this extent the new
+law might have followed the old. The right of property in the
+[24] offending animal, which was the ancient ground of
+responsibility, might have been adopted safely enough as the test
+of a liability based on the fault of the owner. But the
+responsibility for damage of a kind not to be expected from such
+animals is determined on grounds of policy comparatively little
+disturbed by tradition. The development of personal liability for
+fierce wild animals at Rome has been explained. Our law seems to
+have followed the Roman.
+
+We will now follow the history of that branch of the primitive
+notion which was least likely to survive,--the liability of
+inanimate things.
+
+It will be remembered that King Alfred ordained the surrender of
+a tree, but that the later Scotch law refused it because a dead
+thing could not have guilt. It will be remembered, also, that the
+animals which the Scotch law forfeited were escheat to the king.
+The same thing has remained true in England until well into this
+century, with regard even to inanimate objects. As long ago as
+Bracton, /1/ in case a man was slain, the coroner was to value
+the object causing the death, and that was to be forfeited sa
+deodand "pro rege." It was to be given to God, that is to say to
+the Church, for the king, to be expended for the good of his
+soul. A man's death had ceased to be the private affair of his
+friends as in the time of the barbarian folk-laws. The king, who
+furnished the court, now sued for the penalty. He supplanted the
+family in the claim on the guilty thing, and the Church
+supplanted him.
+
+In Edward the First's time some of the cases remind of the
+barbarian laws at their rudest stage. If a man fell from a tree,
+the tree was deodand. /2/ If he drowned in a [25] well, the well
+was to be filled up. /1/ It did not matter that the forfeited
+instrument belonged to an innocent person. "Where a man killeth
+another with the sword of John at Stile, the sword shall be
+forfeit as deodand, and yet no default is in the owner." /2/ That
+is from a book written in the reign of Henry VIII., about 1530.
+And it has been repeated from Queen Elizabeth's time /3/ to
+within one hundred years, /4/ that if my horse strikes a man, and
+afterwards I sell my horse, and after that the man dies, the
+horse shall be forfeited. Hence it is, that, in all indictments
+for homicide, until very lately it has been necessary to state
+the instrument causing the death and its value, as that the
+stroke was given by a certain penknife, value sixpence, so as to
+secure the forfeiture. It is said that a steam-engine has been
+forfeited in this way.
+
+I now come to what I regard as the most remarkable transformation
+of this principle, and one which is a most important factor in
+our law as it is today. I must for the moment leave the common
+law and take up the doctrines of the Admiralty. In the early
+books which have just been referred to, and long afterwards, the
+fact of motion is adverted to as of much importance. A maxim of
+Henry Spigurnel, a judge in the time of Edward I., is reported,
+that "where a man is killed by a cart, or by the fall of a house,
+or in other like manner, and the thing in motion is the cause of
+the death, it shall be deodand." /5/ So it was [26] said in the
+next reign that "oinne illud quod mover cum eo quod occidit
+homines deodandum domino Regi erit, vel feodo clerici." /1/ The
+reader sees how motion gives life to the object forfeited.
+
+The most striking example of this sort is a ship. And accordingly
+the old books say that, if a man falls from a ship and is
+drowned, the motion of the ship must be taken to cause the death,
+and the ship is forfeited,--provided, however, that this
+happens in fresh water. /2/ For if the death took place on the
+high seas, that was outside the ordinary jurisdiction. This
+proviso has been supposed to mean that ships at sea were not
+forfeited; /3/ but there is a long series of petitions to the
+king in Parliament that such forfeitures may be done away with,
+which tell a different story. /4/ The truth seems to be that the
+forfeiture took place, but in a different court. A manuscript of
+the reign of Henry VI., only recently printed, discloses the fact
+that, if a man was killed or drowned at sea by the motion of the
+ship, the vessel was forfeited to the admiral upon a proceeding
+in the admiral's court, and subject to release by favor of the
+admiral or the king. /5/
+
+A ship is the most living of inanimate things. Servants sometimes
+say "she" of a clock, but every one gives a gender to vessels.
+And we need not be surprised, therefore, to find a mode of
+dealing which has shown such extraordinary vitality in the
+criminal law applied with even more striking thoroughness in the
+Admiralty. It is only by supposing [27] the ship to have been
+treated as if endowed with personality, that the arbitrary
+seeming peculiarities of the maritime law can be made
+intelligible, and on that supposition they at once become
+consistent and logical.
+
+By way of seeing what those peculiarities are, take first a case
+of collision at sea. A collision takes place between two vessels,
+the Ticonderoga and the Melampus, through the fault of the
+Ticonderoga alone. That ship is under a lease at the time, the
+lessee has his own master in charge, and the owner of the vessel
+has no manner of control over it. The owner, therefore, is not to
+blame, and he cannot even be charged on the ground that the
+damage was done by his servants. He is free from personal
+liability on elementary principles. Yet it is perfectly settled
+that there is a lien on his vessel for the amount of the damage
+done, /1/ and this means that that vessel may be arrested and
+sold to pay the loss in any admiralty court whose process will
+reach her. If a livery-stable keeper lets a horse and wagon to a
+customer, who runs a man down by careless driving, no one would
+think of claiming a right to seize the horse and wagon. It would
+be seen that the only property which could be sold to pay for a
+wrong was the property of the wrong-doer.
+
+But, again, suppose that the vessel, instead of being under
+lease, is in charge of a pilot whose employment is made
+compulsory by the laws of the port which she is just entering.
+The Supreme Court of the United States holds the ship liable in
+this instance also. /2/ The English courts would probably have
+decided otherwise, and the matter is settled in England by
+legislation. But there the court of appeal, the Privy Council,
+has been largely composed of common-law [28]lawyers, and it has
+shown a marked tendency to assimilate common-law doctrine. At
+common law one who could not impose a personal liability on the
+owner could not bind a particular chattel to answer for a wrong
+of which it had been the instrument. But our Supreme Court has
+long recognized that a person may bind a ship, when he could not
+bind the owners personally, because he was not the agent.
+
+It may be admitted that, if this doctrine were not supported by
+an appearance of good sense, it would not have survived. The ship
+is the only security available in dealing with foreigners, and
+rather than send one's own citizens to search for a remedy abroad
+in strange courts, it is easy to seize the vessel and satisfy the
+claim at home, leaving the foreign owners to get their indemnity
+as they may be able. I dare say some such thought has helped to
+keep the practice alive, but I believe the true historic
+foundation is elsewhere. The ship no doubt, like a sword would
+have been forfeited for causing death, in whosesoever hands it
+might have been. So, if the master and mariners of a ship,
+furnished with letters of reprisal, committed piracy against a
+friend of the king, the owner lost his ship by the admiralty law,
+although the crime was committed without his knowledge or assent.
+/2/ It seems most likely that the principle by which the ship was
+forfeited to the king for causing death, or for piracy, was the
+same as that by which it was bound to private sufferers for other
+damage, in whose hands soever it might have been when it did the
+harm.
+
+If we should say to an uneducated man today, "She did it and she
+ought to pay for it," it may be doubted [29] whether he would see
+the fallacy, or be ready to explain that the ship was only
+property, and that to say, "The ship has to pay for it," /1/ was
+simply a dramatic way of saying that somebody's property was to
+be sold, and the proceeds applied to pay for a wrong committed by
+somebody else.
+
+It would seem that a similar form of words has been enough to
+satisfy the minds of great lawyers. The following is a passage
+from a judgment by Chief Justice Marshall, which is quoted with
+approval by Judge Story in giving the opinion of the Supreme
+Court of the United States: "This is not a proceeding against the
+owner; it is a proceeding against the vessel for an offence
+committed by the vessel; which is not the less an offence, and
+does not the less subject her to forfeiture, because it was
+committed without the authority and against the will of the
+owner. It is true that inanimate matter can commit no offence.
+But this body is animated and put in action by the crew, who are
+guided by the master. The vessel acts and speaks by the master.
+She reports herself by the master. It is, therefore, not
+unreasonable that the vessel should be affected by this report."
+And again Judge Story quotes from another case: "The thing is
+here primarily considered as the offender, or rather the offence
+is primarily attached to the thing." /2/
+
+In other words, those great judges, although of course aware that
+a ship is no more alive than a mill-wheel, thought that not only
+the law did in fact deal with it as if it were alive, but that it
+was reasonable that the law should do so. The reader will observe
+that they do not say simply that it is reasonable on grounds of
+policy to [30] sacrifice justice to the owner to security for
+somebody else but that it is reasonable to deal with the vessel
+as an offending thing. Whatever the hidden ground of policy may
+be, their thought still clothes itself in personifying language.
+
+Let us now go on to follow the peculiarities of the maritime law
+in other directions. For the cases which have been stated are
+only parts of a larger whole.
+
+By the maritime law of the Middle Ages the ship was not only the
+source, but the limit, of liability. The rule already prevailed,
+which has been borrowed and adopted by the English statutes and
+by our own act of Congress of 1851, according to which the owner
+is discharged from responsibility for wrongful acts of a master
+appointed by himself upon surrendering his interest in the vessel
+and the freight which she had earned. By the doctrines of agency
+he would be personally liable for the whole damage. If the origin
+of the system of limited liability which is believed to be so
+essential to modern commerce is to be attributed to those
+considerations of public policy on which it would now be
+sustained, that system has nothing to do with the law of
+collision. But if the limit of liability here stands on the same
+ground as the noxoe deditio, confirms the explanation already
+given of the liability of the ship for wrongs done by it while
+out of the owner's hands, and conversely existence of that
+liability confirms the argument here.
+
+Let us now take another rule, for which, as usual, there is a
+plausible explanation of policy. Freight, it is said, the mother
+of wages; for, we are told, "if the ship perished, [31] if the
+mariners were to have their wages in such cases, they would not
+use their endeavors, nor hazard their lives, for the safety of
+the ship." /1/ The best commentary on this reasoning is, that the
+law has recently been changed by statute. But even by the old law
+there was an exception inconsistent with the supposed reason. In
+case of shipwreck, which was the usual case of a failure to earn
+freight, so long as any portion of the ship was saved, the lien
+of the mariners remained. I suppose it would have been said,
+because it was sound policy to encourage them to save all they
+could. If we consider that the sailors were regarded as employed
+by the ship, we shall understand very readily both the rule and
+the exception. "The ship is the debtor," as was said in arguing a
+case decided in the time of William III. /2/ If the debtor
+perished, there was an end of the matter. If a part came ashore,
+that might be proceeded against.
+
+Even the rule in its modern form, that freight is the mother of
+wages, is shown by the explanation commonly given to have
+reference to the question whether the ship is lost or arrive
+safe. In the most ancient source of the maritime law now extant,
+which has anything about the matter, so far as I have been able
+to discover, the statement is that the mariners will lose their
+wages when the ship is lost. /3/ In like manner, in what is said
+by its English [32] editor, Sir Travers Twiss, to be the oldest
+part of the Consulate of the Sea, /1/ we read that "whoever the
+freighter may be who runs away or dies, the ship is bound to pay:
+the mariners." /2/ I think we may assume that the vessel was
+bound by the contract with the sailors, much in the same way as
+it was by the wrongs for which it was answerable, just as the
+debtor's body was answerable for his debts, as well as for his
+crimes, under the ancient law of Rome.
+
+The same thing is true of other maritime dealings with the
+vessel, whether by way of contract or otherwise. If salvage
+service is rendered to a vessel, the admiralty court will hold
+the vessel, although it has been doubted whether an action of
+contract would lie, if the owners were sued at law. So the ship
+is bound by the master's contract to carry cargo, just as in case
+of collision, although she was under lease at the time. In such
+cases, also, according to our Supreme Court, the master may bind
+the vessel when he cannot bind the general owners. /4/ "By custom
+the ship is bound to the merchandise, and the merchandise to the
+ship." /5/ "By the maritime law every contract of the master
+implies an hypothecation." /6/ It might be urged, no doubt, with
+force, that, so far as the usual maritime contracts are
+concerned, the dealing must be on the security of the ship or
+merchandise in many cases, and therefore [33] that it is policy
+to give this security in all cases; that the risk to which it
+subjects ship-owners is calculable, and that they must take it
+into account when they let their vessels. Again, in many cases,
+when a party asserts a maritime lien by way of contract, he has
+improved the condition of the thing upon which the lien is
+claimed, and this has been recognized as a ground for such a lien
+in some systems. But this is not true universally, nor in the
+most important cases. It must be left to the reader to decide
+whether ground has not been shown for believing that the same
+metaphysical confusion which naturally arose as to the ship's
+wrongful acts, affected the way of thinking as to her contracts.
+The whole manner of dealing with vessels obviously took the form
+which prevailed in the eases first mentioned. Pardessus, a high
+authority, says that the lien for freight prevails even against
+the owner of stolen goods, "as the master deals less with the
+person than the thing." /2/ So it was said in the argument of a
+famous English case, that "the ship is instead of the owner, and
+therefore is answerable." /3/ In many cases of contract, as well
+as tort, the vessel was not only the security for the debt, but
+the limit of the owner's liability.
+
+The principles of the admiralty are embodied in its form of
+procedure. A suit may be brought there against a vessel by name,
+any person interested in it being at liberty to come in and
+defend, but the suit, if successful, ending in a sale of the
+vessel and a payment of the plaintiff's claim out of the
+proceeds. As long ago as the time of James I. it was said that
+"the libel ought to be only [34] against the ship and goods, and
+not against the party." /1/ And authority for the statement was
+cited from the reign of Henry VI., the same reign when, as we
+have seen, the Admiral claimed a forfeiture of ships for causing
+death. I am bound to say, however, that I cannot find such an
+authority of that date.
+
+We have now followed the development of the chief forms of
+liability in modern law for anything other than the immediate and
+manifest consequences of a man's own acts. We have seen the
+parallel course of events in the two parents,--the Roman law and
+the German customs, and in the offspring of those two on English
+soil with regard to servants, animals, and inanimate things. We
+have seen a single germ multiplying and branching into products
+as different from each other as the flower from the root. It
+hardly remains to ask what that germ was. We have seen that it
+was the desire of retaliation against the offending thing itself.
+Undoubtedly, it might be argued that many of the rules stated
+were derived from a seizure of the offending thing as security
+for reparation, at first, perhaps, outside the law. That
+explanation, as well as the one offered here; would show that
+modern views of responsibility had not yet been attained, as the
+owner of the thing might very well not have been the person in
+fault. But such has not been the view of those most competent to
+judge. A consideration of the earliest instances will show, as
+might have been expected, that vengeance, not compensation, and
+vengeance on the offending thing, was the original object. The ox
+in Exodus was to be stoned. The axe in the Athenian law was to be
+banished. The tree, in Mr. Tylor's instance, was to be chopped to
+pieces. The [35] slave under all the systems was to be
+surrendered to the relatives of the slain man, that they might do
+with him what they liked. /1/ The deodand was an accursed thing.
+The original limitation of liability to surrender, when the owner
+was before the court, could not be accounted for if it was his
+liability, and not that of his property, which was in question.
+Even where, as in some of the cases, expiation seems to be
+intended rather than vengeance, the object is equally remote from
+an extrajudicial distress.
+
+The foregoing history, apart from the purposes for which it has
+been given, well illustrates the paradox of form and substance in
+the development of law. In form its growth is logical. The
+official theory is that each new decision follows syllogistically
+from existing precedents. But just as the clavicle in the cat
+only tells of the existence of some earlier creature to which a
+collar-bone was useful, precedents survive in the law long after
+the use they once served is at an end and the reason for them has
+been forgotten. The result of following them must often be
+failure and confusion from the merely logical point of view.
+
+On the other hand, in substance the growth of the law is
+legislative. And this in a deeper sense than that what the courts
+declare to have always been the law is in fact new. It is
+legislative in its grounds. The very considerations which judges
+most rarely mention, and always with an apology, are the secret
+root from which the law draws all the juices of life. I mean, of
+course, considerations of what is expedient for the community
+concerned. Every important principle which is developed by
+litigation is in fact and at bottom the result of more or less
+definitely understood views of public policy; most generally, to
+be sure, [36] under our practice and traditions, the unconscious
+result of instinctive preferences and inarticulate convictions,
+but none the less traceable to views of public policy in the last
+analysis. And as the law is administered by able and experienced
+men, who know too much to sacrifice good sense to a syllogism, it
+will be found that, when ancient rules maintain themselves in the
+way that has been and will be shown in this book, new reasons
+more fitted to the time have been found for them, and that they
+gradually receive a new content, and at last a new form, from the
+grounds to which they have been transplanted.
+
+But hitherto this process has been largely unconscious. It is
+important, on that account, to bring to mind what the actual
+course of events has been. If it were only to insist on a more
+conscious recognition of the legislative function of the courts,
+as just explained, it would be useful, as we shall see more
+clearly further on. /1/
+
+What has been said will explain the failure of all theories which
+consider the law only from its formal side; whether they attempt
+to deduce the corpus from a priori postulates, or fall into the
+humbler error of supposing the science of the law to reside in
+the elegantia juris, or logical cohesion of part with part. The
+truth is, that the law always approaching, and never reaching,
+consistency. It is forever adopting new principles from life at
+one end, and it always retains old ones from history at the
+other, which have not yet been absorbed or sloughed off. It
+will become entirely consistent only when it ceases to grow.
+
+The study upon which we have been engaged is necessary both for
+the knowledge and for the revision of the law. [37] However much
+we may codify the law into a series of seemingly self-sufficient
+propositions, those propositions will be but a phase in a
+continuous growth. To understand their scope fully, to know how
+they will be dealt with by judges trained in the past which the
+law embodies, we must ourselves know something of that past. The
+history of what the law has been is necessary to the knowledge of
+what the law is.
+
+Again, the process which I have described has involved the
+attempt to follow precedents, as well as to give a good reason
+for them. When we find that in large and important branches of
+the law the various grounds of policy on which the various rules
+have been justified are later inventions to account for what are
+in fact survivals from more primitive times, we have a right to
+reconsider the popular reasons, and, taking a broader view of the
+field, to decide anew whether those reasons are satisfactory.
+They may be, notwithstanding the manner of their appearance. If
+truth were not often suggested by error, if old implements could
+not be adjusted to new uses, human progress would be slow. But
+scrutiny and revision are justified.
+
+But none of the foregoing considerations, nor the purpose of
+showing the materials for anthropology contained in the history
+of the law, are the immediate object here. My aim and purpose
+have been to show that the various forms of liability known to
+modern law spring from the common ground of revenge. In the
+sphere of contract the fact will hardly be material outside the
+cases which have been stated in this Lecture. But in the criminal
+law and the law of torts it is of the first importance. It shows
+that they have started from a moral basis, from the thought that
+some one was to blame.
+
+[38] It remains to be proved that, while the terminology of
+morals is still retained, and while the law does still and
+always, in a certain sense, measure legal liability by moral
+standards, it nevertheless, by the very necessity of its nature,
+is continually transmuting those moral standards into external or
+objective ones, from which the actual guilt of the party
+concerned is wholly eliminated.
+
+
+[39]
+
+
+
+
+LECTURE II. -- THE CRIMINAL LAW.
+
+In the beginning of the first Lecture it was shown that the
+appeals of the early law were directed only to intentional
+wrongs. The appeal was a far older form of procedure than the
+indictment, and may be said to have had a criminal as well as a
+civil aspect. It had the double object of satisfying the private
+party for his loss, and the king for the breach of his peace. On
+its civil side it was rooted in vengeance. It was a proceeding to
+recover those compositions, at first optional, afterwards
+compulsory, by which a wrong-doer bought the spear from his side.
+Whether, so far as concerned the king, it had the same object of
+vengeance, or was more particularly directed to revenue, does not
+matter, since the claim of the king did not enlarge the scope of
+the action.
+
+It would seem to be a fair inference that indictable offences
+were originally limited in the same way as those which gave rise
+to an appeal. For whether the indictment arose by a splitting up
+of the appeal, or in some other way, the two were closely
+connected.
+
+An acquittal of the appellee on the merits was a bar to an
+indictment; and, on the other hand, when an appeal was fairly
+started, although the appellor might fail to prosecute, or might
+be defeated by plea, the cause might still be proceeded with on
+behalf of the king. /1/
+
+[40] The presentment, which is the other parent of our criminal
+procedure, had an origin distinct from the appeal. If, as has
+been thought, it was merely the successor of fresh suit and lynch
+law, /1/ this also is the child of vengeance, even more clearly
+than the other.
+
+The desire for vengeance imports an opinion that its object is
+actually and personally to blame. It takes an internal standard,
+not an objective or external one, and condemns its victim by
+that. The question is whether such a standard is still accepted
+either in this primitive form, or in some more refined
+development, as is commonly supposed, and as seems not
+impossible, considering the relative slowness with which the
+criminal law has improved.
+
+It certainly may be argued, with some force, that it has never
+ceased to be one object of punishment to satisfy the desire for
+vengeance. The argument will be made plain by considering those
+instances in which, for one reason or another, compensation for a
+wrong is out of the question.
+
+Thus an act may be of such a kind as to make indemnity impossible
+by putting an end to the principal sufferer, as in the case of
+murder or manslaughter.
+
+Again, these and other crimes, like forgery, although directed
+against an individual, tend to make others feel unsafe, and this
+general insecurity does not admit of being paid for.
+
+Again, there are cases where there are no means of enforcing
+indemnity. In Macaulay's draft of the Indian Penal Code, breaches
+of contract for the carriage of passengers, were made criminal.
+The palanquin-bearers of India were too poor to pay damages, and
+yet had to be [41] trusted to carry unprotected women and
+children through wild and desolate tracts, where their desertion
+would have placed those under their charge in great danger.
+
+In all these cases punishment remains as an alternative. A pain
+can be inflicted upon the wrong-doer, of a sort which does not
+restore the injured party to his former situation, or to another
+equally good, but which is inflicted for the very purpose of
+causing pain. And so far as this punishment takes the place of
+compensation, whether on account of the death of the person to
+whom the wrong was done, the indefinite number of persons
+affected, the impossibility of estimating the worth of the
+suffering in money, or the poverty of the criminal, it may be
+said that one of its objects is to gratify the desire for
+vengeance. The prisoner pays with his body.
+
+The statement may be made stronger still, and it may be said, not
+only that the law does, but that it ought to, make the
+gratification of revenge an object. This is the opinion, at any
+rate, of two authorities so great, and so opposed in other views,
+as Bishop Butler and Jeremy Bentham. /1/ Sir James Stephen says,
+"The criminal law stands to the passion of revenge in much the
+same relation as marriage to the sexual appetite." /2/
+
+The first requirement of a sound body of law is, that it should
+correspond with the actual feelings and demands of the community,
+whether right or wrong. If people would gratify the passion of
+revenge outside of the law, if the law did not help them, the law
+has no choice but to satisfy the craving itself, and thus avoid
+the greater evil of private [42] retribution. At the same time,
+this passion is not one which we encourage, either as private
+individuals or as lawmakers. Moreover, it does not cover the
+whole ground. There are crimes which do not excite it, and we
+should naturally expect that the most important purposes of
+punishment would be coextensive with the whole field of its
+application. It remains to be discovered whether such a general
+purpose exists, and if so what it is. Different theories still
+divide opinion upon the subject.
+
+It has been thought that the purpose of punishment is to reform
+the criminal; that it is to deter the criminal and others from
+committing similar crimes; and that it is retribution. Few would
+now maintain that the first of these purposes was the only one.
+If it were, every prisoner should be released as soon as it
+appears clear that he will never repeat his offence, and if he is
+incurable he should not be punished at all. Of course it would be
+hard to reconcile the punishment of death with this doctrine.
+
+The main struggle lies between the other two. On the one side is
+the notion that there is a mystic bond between wrong and
+punishment; on the other, that the infliction of pain is only a
+means to an end. Hegel, one of the great expounders of the former
+view, puts it, in his quasi mathematical form, that, wrong being
+the negation of right, punishment is the negation of that
+negation, or retribution. Thus the punishment must be equal, in
+the sense of proportionate to the crime, because its only
+function is to destroy it. Others, without this logical
+apparatus, are content to rely upon a felt necessity that
+suffering should follow wrong-doing.
+
+It is objected that the preventive theory is immoral, because it
+overlooks the ill-desert of wrong-doing, and furnishes [43] no
+measure of the amount of punishment, except the lawgiver's
+subjective opinion in regard to the sufficiency of the amount of
+preventive suffering. /1/ In the language of Kant, it treats man
+as a thing, not as a person; as a means, not as an end in
+himself. It is said to conflict with the sense of justice, and to
+violate the fundamental principle of all free communities, that
+the members of such communities have equal rights to life,
+liberty, and personal security. /2/
+
+In spite of all this, probably most English-speaking lawyers
+would accept the preventive theory without hesitation. As to the
+violation of equal rights which is charged, it may be replied
+that the dogma of equality makes an equation between individuals
+only, not between an individual and the community. No society has
+ever admitted that it could not sacrifice individual welfare to
+its own existence. If conscripts are necessary for its army, it
+seizes them, and marches them, with bayonets in their rear, to
+death. It runs highways and railroads through old family places
+in spite of the owner's protest, paying in this instance the
+market value, to be sure, because no civilized government
+sacrifices the citizen more than it can help, but still
+sacrificing his will and his welfare to that of the rest. /3/
+
+If it were necessary to trench further upon the field of morals,
+it might be suggested that the dogma of equality applied even to
+individuals only within the limits of ordinary dealings in the
+common run of affairs. You cannot argue with your neighbor,
+except on the admission for the [44] moment that he is as wise as
+you, although you may by no means believe it. In the same way,
+you cannot deal with him, where both are free to choose, except
+on the footing of equal treatment, and the same rules for both.
+The ever-growing value set upon peace and the social relations
+tends to give the law of social being the appearance of the law
+of all being. But it seems to me clear that the ultima ratio, not
+only regum, but of private persons, is force, and that at the
+bottom of all private relations, however tempered by sympathy and
+all the social feelings, is a justifiable self-preference. If a
+man is on a plank in the deep sea which will only float one, and
+a stranger lays hold of it, he will thrust him off if he can.
+When the state finds itself in a similar position, it does the
+same thing.
+
+The considerations which answer the argument of equal rights also
+answer the objections to treating man as a thing, and the like.
+If a man lives in society, he is liable to find himself so
+treated. The degree of civilization which a people has reached,
+no doubt, is marked by their anxiety to do as they would be done
+by. It may be the destiny of man that the social instincts shall
+grow to control his actions absolutely, even in anti-social
+situations. But they have not yet done so, and as the rules of
+law are or should be based upon a morality which is generally
+accepted, no rule founded on a theory of absolute unselfishness
+can be laid down without a breach between law and working
+beliefs.
+
+If it be true, as I shall presently try to show, that the general
+principles of criminal and civil liability are the same, it will
+follow from that alone that theory and fact agree in frequently
+punishing those who have been guilty [45] of no moral wrong, and
+who could not be condemned by any standard that did not avowedly
+disregard the personal peculiarities of the individuals
+concerned. If punishment stood on the moral grounds which are
+proposed for it, the first thing to be considered would be those
+limitations in the capacity for choosing rightly which arise from
+abnormal instincts, want of education, lack of intelligence, and
+all the other defects which are most marked in the criminal
+classes. I do not say that they should not be, or at least I do
+not need to for my argument. I do not say that the criminal law
+does more good than harm. I only say that it is not enacted or
+administered on that theory.
+
+There remains to be mentioned the affirmative argument in favor
+of the theory of retribution, to the effect that the fitness of
+punishment following wrong-doing is axiomatic, and is
+instinctively recognized by unperverted minds. I think that it
+will be seen, on self-inspection, that this feeling of fitness is
+absolute and unconditional only in the case of our neighbors. It
+does not seem to me that any one who has satisfied himself that
+an act of his was wrong, and that he will never do it again,
+would feel the least need or propriety, as between himself and an
+earthly punishing power alone, of his being made to suffer for
+what he had done, although, when third persons were introduced,
+he might, as a philosopher, admit the necessity of hurting him to
+frighten others. But when our neighbors do wrong, we sometimes
+feel the fitness of making them smart for it, whether they have
+repented or not. The feeling of fitness seems to me to be only
+vengeance in disguise, and I have already admitted that vengeance
+was an element, though not the chief element, of punishment.
+
+[46] But, again, the supposed intuition of fitness does not seem
+to me to be coextensive with the thing to be accounted for. The
+lesser punishments are just as fit for the lesser crimes as the
+greater for the greater. The demand that crime should be followed
+by its punishment should therefore be equal and absolute in both.
+Again, a malum prohibitum is just as much a crime as a malum in
+se. If there is any general ground for punishment, it must apply
+to one case as much as to the other. But it will hardly be said
+that, if the wrong in the case just supposed consisted of a
+breach of the revenue laws, and the government had been
+indemnified for the loss, we should feel any internal necessity
+that a man who had thoroughly repented of his wrong should be
+punished for it, except on the ground that his act was known to
+others. If it was known, the law would have to verify its threats
+in order that others might believe and tremble. But if the fact
+was a secret between the sovereign and the subject, the
+sovereign, if wholly free from passion, would undoubtedly see
+that punishment in such a case was wholly without justification.
+
+On the other hand, there can be no case in which the law-maker
+makes certain conduct criminal without his thereby showing a wish
+and purpose to prevent that conduct. Prevention would accordingly
+seem to be the chief and only universal purpose of punishment.
+The law threatens certain pains if you do certain things,
+intending thereby to give you a new motive for not doing them. If
+you persist in doing them, it has to inflict the pains in order
+that its threats may continue to be believed.
+
+If this is a true account of the law as it stands, the law does
+undoubtedly treat the individual as a means to an [47] end, and
+uses him as a tool to increase the general welfare at his own
+expense. It has been suggested above, that this course is
+perfectly proper; but even if it is wrong, our criminal law
+follows it, and the theory of our criminal law must be shaped
+accordingly.
+
+Further evidence that our law exceeds the limits of retribution,
+and subordinates consideration of the individual to that of the
+public well-being, will be found in some doctrines which cannot
+be satisfactorily explained on any other ground.
+
+The first of these is, that even the deliberate taking of life
+will not be punished when it is the only way of saving one's own.
+This principle is not so clearly established as that next to be
+mentioned; but it has the support of very great authority. /1/ If
+that is the law, it must go on one of two grounds, either that
+self-preference is proper in the case supposed, or that, even if
+it is improper, the law cannot prevent it by punishment, because
+a threat of death at some future time can never be a sufficiently
+powerful motive to make a man choose death now in order to avoid
+the threat. If the former ground is adopted, it admits that a
+single person may sacrifice another to himself, and a fortiori
+that a people may. If the latter view is taken, by abandoning
+punishment when it can no longer be expected to prevent an act,
+the law abandons the retributive and adopts the preventive
+theory.
+
+The next doctrine leads to still clearer conclusions. Ignorance
+of the law is no excuse for breaking it. This substantive
+principle is sometimes put in the form of a rule of evidence,
+that every one is presumed to know the [48] law. It has
+accordingly been defended by Austin and others, on the ground of
+difficulty of proof. If justice requires the fact to be
+ascertained, the difficulty of doing so is no ground for refusing
+to try. But every one must feel that ignorance of the law could
+never be admitted as an excuse, even if the fact could be proved
+by sight and hearing in every case. Furthermore, now that parties
+can testify, it may be doubted whether a man's knowledge of the
+law is any harder to investigate than many questions which are
+gone into. The difficulty, such as it is, would be met by
+throwing the burden of proving ignorance on the lawbreaker.
+
+The principle cannot be explained by saying that we are not only
+commanded to abstain from certain acts, but also to find out that
+we are commanded. For if there were such a second command, it is
+very clear that the guilt of failing to obey it would bear no
+proportion to that of disobeying the principal command if known,
+yet the failure to know would receive the same punishment as the
+failure to obey the principal law.
+
+The true explanation of the rule is the same as that which
+accounts for the law's indifference to a man's particular
+temperament, faculties, and so forth. Public policy sacrifices
+the individual to the general good. It is desirable that the
+burden of all should be equal, but it is still more desirable to
+put an end to robbery and murder. It is no doubt true that there
+are many cases in which the criminal could not have known that he
+was breaking the law, but to admit the excuse at all would be to
+encourage ignorance where the law-maker has determined to make
+men know and obey, and justice to the individual is rightly
+outweighed by the larger interests on the other side of the
+scales.
+
+[49] If the foregoing arguments are sound, it is already manifest
+that liability to punishment cannot be finally and absolutely
+determined by considering the actual personal unworthiness of the
+criminal alone. That consideration will govern only so far as the
+public welfare permits or demands. And if we take into account
+the general result which the criminal law is intended to bring
+about, we shall see that the actual state of mind accompanying a
+criminal act plays a different part from what is commonly
+supposed.
+
+For the most part, the purpose of the criminal law is only to
+induce external conformity to rule. All law is directed to
+conditions of things manifest to the senses. And whether it
+brings those conditions to pass immediately by the use of force,
+as when it protects a house from a mob by soldiers, or
+appropriates private property to public use, or hangs a man in
+pursuance of a judicial sentence, or whether it brings them about
+mediately through men's fears, its object is equally an external
+result. In directing itself against robbery or murder, for
+instance, its purpose is to put a stop to the actual physical
+taking and keeping of other men's goods, or the actual poisoning,
+shooting, stabbing, and otherwise putting to death of other men.
+If those things are not done, the law forbidding them is equally
+satisfied, whatever the motive.
+
+Considering this purely external purpose of the law together with
+the fact that it is ready to sacrifice the individual so far as
+necessary in order to accomplish that purpose, we can see more
+readily than before that the actual degree of personal guilt
+involved in any particular transgression cannot be the only
+element, if it is an element at all, in the liability incurred.
+So far from its [50] being true, as is often assumed, that the
+condition of a man's heart or conscience ought to be more
+considered in determining criminal than civil liability, it might
+almost be said that it is the very opposite of truth. For civil
+liability, in its immediate working, is simply a redistribution
+of an existing loss between two individuals; and it will be
+argued in the next Lecture that sound policy lets losses lie
+where they fall, except where a special reason can be shown for
+interference. The most frequent of such reasons is, that the
+party who is charged has been to blame.
+
+It is not intended to deny that criminal liability, as well as
+civil, is founded on blameworthiness. Such a denial would shock
+the moral sense of any civilized community; or, to put it another
+way, a law which punished conduct which would not be blameworthy
+in the average member of the community would be too severe for
+that community to bear. It is only intended to point out that,
+when we are dealing with that part of the law which aims more
+directly than any other at establishing standards of conduct, we
+should expect there more than elsewhere to find that the tests of
+liability are external, and independent of the degree of evil in
+the particular person's motives or intentions. The conclusion
+follows directly from the nature of the standards to which
+conformity is required. These are not only external, as was shown
+above, but they are of general application. They do not merely
+require that every man should get as near as he can to the best
+conduct possible for him. They require him at his own peril to
+come up to a certain height. They take no account of
+incapacities, unless the weakness is so marked as to fall into
+well-known exceptions, such as infancy or madness. [51] They
+assume that every man is as able as every other to behave as they
+command. If they fall on any one class harder than on another, it
+is on the weakest. For it is precisely to those who are most
+likely to err by temperament, ignorance, or folly, that the
+threats of the law are the most dangerous.
+
+The reconciliation of the doctrine that liability is founded on
+blameworthiness with the existence of liability where the party
+is not to blame, will be worked out more fully in the next
+Lecture. It is found in the conception of the average man, the
+man of ordinary intelligence and reasonable prudence. Liability
+is said to arise out of such conduct as would be blameworthy in
+him. But he is an ideal being, represented by the jury when they
+are appealed to, and his conduct is an external or objective
+standard when applied to any given individual. That individual
+may be morally without stain, because he has less than ordinary
+intelligence or prudence. But he is required to have those
+qualities at his peril. If he has them, he will not, as a general
+rule, incur liability without blameworthiness.
+
+The next step is to take up some crimes in detail, and to
+discover what analysis will teach with regard to them.
+
+I will begin with murder. Murder is defined by Sir James Stephen,
+in his Digest of Criminal Law, /1/ as unlawful homicide with
+malice aforethought. In his earlier work, /2/ he explained that
+malice meant wickedness, and that the law had determined what
+states of mind were wicked in the necessary degree. Without the
+same preliminary he continues in his Digest as follows:--
+
+[52] "Malice aforethought means any one or more of the following
+states of mind..... "(a.) An intention to cause the death of, or
+grievous bodily harm to, any person, whether such person is the
+person actually killed or not; "(b.) Knowledge that the act which
+causes death will probably cause the death of, or grievous bodily
+harm to, some person, whether such person is the person actually
+killed or not, although such knowledge is accompanied by
+indifference whether death or grievous bodily harm is caused or
+not, or by a wish that it may not be caused; "(c.) An intent to
+commit any felony whatever; "(d.) An intent to oppose by force
+any officer of justice on his way to, in, or returning from the
+execution of the duty of arresting, keeping in custody, or
+imprisoning any person whom he is lawfully entitled to arrest,
+keep in custody, or imprison, or the duty of keeping the peace or
+dispersing an unlawful assembly, provided that the offender has
+notice that the person killed is such an officer so employed."
+
+Malice, as used in common speech, includes intent, and something
+more. When an act is said to be done with an intent to do harm,
+it is meant that a wish for the harm is the motive of the act.
+Intent, however, is perfectly consistent with the harm being
+regretted as such, and being wished only as a means to something
+else. But when an act is said to be done maliciously, it is
+meant, not only that a wish for the harmful effect is the motive,
+but also that the harm is wished for its own sake, or, as Austin
+would say with more accuracy, for the sake of the pleasurable
+feeling which knowledge of the suffering caused by the act would
+excite. Now it is apparent from Sir James [53] Stephen's
+enumeration, that of these two elements of malice the intent
+alone is material to murder. It is just as much murder to shoot a
+sentry for the purpose of releasing a friend, as to shoot him
+because you hate him. Malice, in the definition of murder, has
+not the same meaning as in common speech, and, in view of the
+considerations just mentioned, it has been thought to mean
+criminal intention. /1/
+
+But intent again will be found to resolve itself into two things;
+foresight that certain consequences will follow from an act, and
+the wish for those consequences working as a motive which induces
+the act. The question then is, whether intent, in its turn,
+cannot be reduced to a lower term. Sir James Stephen's statement
+shows that it can be, and that knowledge that the act will
+probably cause death, that is, foresight of the consequences of
+the act, is enough in murder as in tort.
+
+For instance, a newly born child is laid naked out of doors,
+where it must perish as a matter of course. This is none the less
+murder, that the guilty party would have been very glad to have a
+stranger find the child and save it. /2/
+
+But again, What is foresight of consequences? It is a picture of
+a future state of things called up by knowledge of the present
+state of things, the future being viewed as standing to the
+present in the relation of effect to cause. Again, we must seek a
+reduction to lower terms. If the known present state of things is
+such that the act done will very certainly cause death, and the
+probability is a matter of common knowledge, one who does the
+act, [54] knowing the present state of things, is guilty of
+murder, and the law will not inquire whether he did actually
+foresee the consequences or not. The test of foresight is not
+what this very criminal foresaw, but what a man of reasonable
+prudence would have foreseen.
+
+On the other hand, there must be actual present knowledge of the
+present facts which make an act dangerous. The act is not enough
+by itself. An act, it is true, imports intention in a certain
+sense. It is a muscular contraction, and something more. A spasm
+is not an act. The contraction of the muscles must be willed. And
+as an adult who is master of himself foresees with mysterious
+accuracy the outward adjustment which will follow his inward
+effort, that adjustment may be said to be intended. But the
+intent necessarily accompanying the act ends there. Nothing would
+follow from the act except for the environment. All acts, taken
+apart from their surrounding circumstances, are indifferent to
+the law. For instance, to crook the forefinger with a certain
+force is the same act whether the trigger of a pistol is next to
+it or not. It is only the surrounding circumstances of a pistol
+loaded and cocked, and of a human being in such relation to it,
+as to be manifestly likely to be hit, that make the act a wrong.
+Hence, it is no sufficient foundation for liability, on any sound
+principle, that the proximate cause of loss was an act.
+
+The reason for requiring an act is, that an act implies a choice,
+and that it is felt to be impolitic and unjust to make a man
+answerable for harm, unless he might have chosen otherwise. But
+the choice must be made with a chance of contemplating the
+consequence complained of, or else it has no bearing on
+responsibility for that consequence. [55] If this were not true,
+a man might be held answerable for everything which would not
+have happened but for his choice at some past time. For instance,
+for having in a fit fallen on a man, which he would not have done
+had he not chosen to come to the city where he was taken ill.
+
+All foresight of the future, all choice with regard to any
+possible consequence of action, depends on what is known at the
+moment of choosing. An act cannot be wrong, even when done under
+circumstances in which it will be hurtful, unless those
+circumstances are or ought to be known. A fear of punishment for
+causing harm cannot work as a motive, unless the possibility of
+harm may be foreseen. So far, then, as criminal liability is
+founded upon wrong-doing in any sense, and so far as the threats
+and punishments of the law are intended to deter men from
+bringing about various harmful results, they must be confined to
+cases where circumstances making the conduct dangerous were
+known.
+
+Still, in a more limited way, the same principle applies to
+knowledge that applies to foresight. It is enough that such
+circumstances were actually known as would have led a man of
+common understanding to infer from them the rest of the group
+making up the present state of things. For instance, if a workman
+on a house-top at mid-day knows that the space below him is a
+street in a great city, he knows facts from which a man of common
+understanding would infer that there were people passing below.
+He is therefore bound to draw that inference, or, in other words,
+is chargeable with knowledge of that fact also, whether he draws
+the inference or not. If then, he throws down a heavy beam into
+the street, he does an act [56] which a person of ordinary
+prudence would foresee is likely to cause death, or grievous
+bodily harm, and he is dealt with as if he foresaw it, whether he
+does so in fact or not. If a death is caused by the act, he is
+guilty of murder. /1/ But if the workman has reasonable cause to
+believe that the space below is a private yard from which every
+one is excluded, and which is used as a rubbish heap, his act is
+not blameworthy, and the homicide is a mere misadventure.
+
+To make an act which causes death murder, then, the actor ought,
+on principle, to know, or have notice of the facts which make the
+act dangerous. There are certain exceptions to this principle
+which will be stated presently, but they have less application to
+murder than to some smaller statutory crimes. The general rule
+prevails for the most part in murder.
+
+But furthermore, on the same principle, the danger which in fact
+exists under the known circumstances ought to be of a class which
+a man of reasonable prudence could foresee. Ignorance of a fact
+and inability to foresee a consequence have the same effect on
+blameworthiness. If a consequence cannot be foreseen, it cannot
+be avoided. But there is this practical difference, that whereas,
+in most cases, the question of knowledge is a question of the
+actual condition of the defendant's consciousness, the question
+of what he might have foreseen is determined by the standard of
+the prudent man, that is, by general experience. For it is to be
+remembered that the object of the law is to prevent human life
+being endangered or taken; and that, although it so far considers
+blameworthiness in punishing as not to hold a man responsible for
+consequences which [57] no one, or only some exceptional
+specialist, could have foreseen, still the reason for this
+limitation is simply to make a rule which is not too hard for the
+average member of the community. As the purpose is to compel men
+to abstain from dangerous conduct, and not merely to restrain
+them from evil inclinations, the law requires them at their peril
+to know the teachings of common experience, just as it requires
+them to know the law. Subject to these explanations, it may be
+said that the test of murder is the degree of danger to life
+attending the act under the known circumstances of the case. /1/
+
+It needs no further explanation to show that, when the particular
+defendant does for any reason foresee what an ordinary man of
+reasonable prudence would not have foreseen, the ground of
+exemption no longer applies. A harmful act is only excused on the
+ground that the party neither did foresee, nor could with proper
+care have foreseen harm.
+
+It would seem, at first sight, that the above analysis ought to
+exhaust the whole subject of murder. But it does not without some
+further explanation. If a man forcibly resists an officer
+lawfully making an arrest, and kills him, knowing him to be an
+officer, it may be murder, although no act is done which, but for
+his official function, would be criminal at all. So, if a man
+does an act with intent to commit a felony, and thereby
+accidentally kills another; for instance, if he fires at
+chickens, intending to steal them, and accidentally kills the
+owner, whom he does not see. Such a case as this last seems
+hardly to be reconcilable with the general principles which have
+been laid down. It has been argued somewhat as [58] follows:--The
+only blameworthy act is firing at the chickens, knowing them to
+belong to another. It is neither more nor less so because an
+accident happens afterwards; and hitting a man, whose presence
+could not have been suspected, is an accident. The fact that the
+shooting is felonious does not make it any more likely to kill
+people. If the object of the rule is to prevent such accidents,
+it should make accidental killing with firearms murder, not
+accidental killing in the effort to steal; while, if its object
+is to prevent stealing, it would do better to hang one thief in
+every thousand by lot.
+
+Still, the law is intelligible as it stands. The general test of
+murder is the degree of danger attending the acts under the known
+state of facts. If certain acts are regarded as peculiarly
+dangerous under certain circumstances, a legislator may make them
+punishable if done under these circumstances, although the danger
+was not generally known. The law often takes this step, although
+it does not nowadays often inflict death in such cases. It
+sometimes goes even further, and requires a man to find out
+present facts, as well as to foresee future harm, at his peril,
+although they are not such as would necessarily be inferred from
+the facts known.
+
+Thus it is a statutory offence in England to abduct a girl under
+sixteen from the possession of the person having lawful charge of
+her. If a man does acts which induce a girl under sixteen to
+leave her parents, he is not chargeable, if he had no reason to
+know that she was under the lawful charge of her parents, /1/ and
+it may be presumed that he would not be, if he had reasonable
+cause to believe that she was a boy. But if he knowingly abducts
+a girl from [59] her parents, he must find out her age at his
+peril. It is no defence that he had every reason to think her
+over sixteen. /1/ So, under a prohibitory liquor law, it has been
+held that, if a man sells "Plantation Bitters," it is no defence
+that he does not know them to be intoxicating. /2/ And there are
+other examples of the same kind.
+
+Now, if experience shows, or is deemed by the law-maker to show,
+that somehow or other deaths which the evidence makes accidental
+happen disproportionately often in connection with other
+felonies, or with resistance to officers, or if on any other
+ground of policy it is deemed desirable to make special efforts
+for the prevention of such deaths, the lawmaker may consistently
+treat acts which, under the known circumstances, are felonious,
+or constitute resistance to officers, as having a sufficiently
+dangerous tendency to be put under a special ban. The law may,
+therefore, throw on the actor the peril, not only of the
+consequences foreseen by him, but also of consequences which,
+although not predicted by common experience, the legislator
+apprehends. I do not, however, mean to argue that the rules under
+discussion arose on the above reasoning, any more than that they
+are right, or would be generally applied in this country.
+
+Returning to the main line of thought it will be instructive to
+consider the relation of manslaughter to murder. One great
+difference between the two will be found to lie in the degree of
+danger attaching to the act in the given state of facts. If a man
+strikes another with a small stick which is not likely to kill,
+and which he has no reason to suppose will do more than slight
+bodily harm, but which [60] does kill the other, he commits
+manslaughter, not murder. /1/ But if the blow is struck as hard
+as possible with an iron bar an inch thick, it is murder. /2/ So
+if, at the time of striking with a switch, the party knows an
+additional fact, by reason of which he foresees that death will
+be the consequence of a slight blow, as, for instance, that the
+other has heart disease, the offence is equally murder. /3/ To
+explode a barrel of gunpowder in a crowded street, and kill
+people, is murder, although the actor hopes that no such harm
+will be done. /4/ But to kill a man by careless riding in the
+same street would commonly be manslaughter. /5/ Perhaps, however,
+a case could be put where the riding was so manifestly dangerous
+that it would be murder.
+
+To recur to an example which has been used already for another
+purpose: "When a workman flings down a stone or piece of timber
+into the street, and kills a man; this may be either
+misadventure, manslaughter, or murder, according to the
+circumstances under which the original act was done: if it were
+in a country village, where few passengers are, and he calls out
+to all people to have a care, it is misadventure only; but if it
+were in London, or other populous town, where people are
+continually passing, it is manslaughter, though he gives loud
+warning; and murder, if he knows of their passing, and gives no
+warning at all." /6/
+
+The law of manslaughter contains another doctrine [61] which
+should be referred to in order to complete the understanding of
+the general principles of the criminal law. This doctrine is,
+that provocation may reduce an offence which would otherwise have
+been murder to manslaughter. According to current morality, a man
+is not so much to blame for an act done under the disturbance of
+great excitement, caused by a wrong done to himself, as when he
+is calm. The law is made to govern men through their motives, and
+it must, therefore, take their mental constitution into account.
+
+It might be urged, on the other side, that, if the object of
+punishment is prevention, the heaviest punishment should be
+threatened where the strongest motive is needed to restrain; and
+primitive legislation seems sometimes to have gone on that
+principle. But if any threat will restrain a man in a passion, a
+threat of less than death will be sufficient, and therefore the
+extreme penalty has been thought excessive.
+
+At the same time the objective nature of legal standards is shown
+even here. The mitigation does not come from the fact that the
+defendant was beside himself with rage. It is not enough that he
+had grounds which would have had the same effect on every man of
+his standing and education. The most insulting words are not
+provocation, although to this day, and still more when the law
+was established, many people would rather die than suffer them
+without action. There must be provocation sufficient to justify
+the passion, and the law decides on general considerations what
+provocations are sufficient.
+
+It is said that even what the law admits to be "provocation does
+not extenuate the guilt of homicide, unless the person provoked
+is at the time when he does the deed [62] deprived of the power
+of self-control by the provocation which he has received." /1/
+There are obvious reasons for taking the actual state of the
+defendant's consciousness into account to this extent. The only
+ground for not applying the general rule is, that the defendant
+was in such a state that he could not be expected to remember or
+be influenced by the fear of punishment; if he could be, the
+ground of exception disappears. Yet even here, rightly or
+wrongly, the law has gone far in the direction of adopting
+external tests. The courts seem to have decided between murder
+and manslaughter on such grounds as the nature of the weapon
+used, /2/ or the length of time between the provocation and the
+act. /3/ But in other cases the question whether the prisoner was
+deprived of self-control by passion has been left to the jury.
+/4/
+
+As the object of this Lecture is not to give an outline of the
+criminal law, but to explain its general theory, I shall only
+consider such offences as throw some special light upon the
+subject, and shall treat of those in such order as seems best
+fitted for that purpose. It will now be useful to take up
+malicious mischief, and to compare the malice required to
+constitute that offence with the malice aforethought of murder.
+
+The charge of malice aforethought in an indictment for murder has
+been shown not to mean a state of the defendant's mind, as is
+often thought, except in the sense that he knew circumstances
+which did in fact make his conduct dangerous. It is, in truth, an
+allegation like that of negligence, which asserts that the party
+accused did not [63] come up to the legal standard of action
+under the circumstances in which he found himself, and also that
+there was no exceptional fact or excuse present which took the
+case out of the general rule. It is an averment of a conclusion
+of law which is permitted to abridge the facts (positive and
+negative) on which it is founded.
+
+When a statute punishes the "wilfully and maliciously" injuring
+another's property, it is arguable, if not clear, that something
+more is meant. The presumption that the second word was not added
+without some meaning is seconded by the unreasonableness of
+making every wilful trespass criminal. /1/ If this reasoning
+prevails, maliciously is here used in its popular sense, and
+imports that the motive for the defendant's act was a wish to
+harm the owner of the property, or the thing itself, if living,
+as an end, and for the sake of the harm. Malice in this sense has
+nothing in common with the malice of murder.
+
+Statutory law need not profess to be consistent with itself, or
+with the theory adopted by judicial decisions. Hence there is
+strictly no need to reconcile such a statute with the principles
+which have been explained. But there is no inconsistency.
+Although punishment must be confined to compelling external
+conformity to a rule of conduct, so far that it can always be
+avoided by avoiding or doing certain acts as required, with
+whatever intent or for whatever motive, still the prohibited
+conduct may not be hurtful unless it is accompanied by a
+particular state of feeling.
+
+Common disputes about property are satisfactorily settled by
+compensation. But every one knows that sometimes secret harm is
+done by neighbor to neighbor out of [64] pure malice and spite.
+The damage can be paid for, but the malignity calls for revenge,
+and the difficulty of detecting the authors of such wrongs, which
+are always done secretly, affords a ground for punishment, even
+if revenge is thought insufficient.
+
+How far the law will go in this direction it is hard to say. The
+crime of arson is defined to be the malicious and wilful burning
+of the house of another man, and is generally discussed in close
+connection with malicious mischief. It has been thought that the
+burning was not malicious where a prisoner set fire to his
+prison, not from a desire to consume the building, but solely to
+effect his escape. But it seems to be the better opinion that
+this is arson, /1/ in which case an intentional burning is
+malicious within the meaning of the rule. When we remember that
+arson was the subject of one of the old appeals which take us far
+back into the early law, /2/ we may readily understand that only
+intentional burnings were redressed in that way. /3/ The appeal
+of arson was brother to the appeal de pace et plagis. As the
+latter was founded on a warlike assault, the former supposed a
+house-firing for robbery or revenge, /4/ such as that by which
+Njal perished in the Icelandic Saga. But this crime seems to have
+had the same history as others. As soon as intent is admitted to
+be sufficient, the law is on the high-road to an external
+standard. A man who intentionally sets fire to his own house,
+which is so near to other houses that the fire will manifestly
+endanger them, is guilty of arson if one of the other houses is
+burned in consequence. /5/ In this case, an act which would not
+[65] have been arson, taking only its immediate consequences into
+account, becomes arson by reason of more remote consequences
+which were manifestly likely to follow, whether they were
+actually intended or not. If that may be the effect of setting
+fire to things which a man has a right to burn, so far as they
+alone are concerned, why, on principle, should it not be the
+effect of any other act which is equally likely under the
+surrounding circumstances to cause the same harm. /1/ Cases may
+easily be imagined where firing a gun, or making a chemical
+mixture, or piling up oiled rags, or twenty other things, might
+be manifestly dangerous in the highest degree and actually lead
+to a conflagration. If, in such cases, the crime is held to have
+been committed, an external standard is reached, and the analysis
+which has been made of murder applies here.
+
+There is another class of cases in which intent plays an
+important part, for quite different reasons from those which have
+been offered to account for the law of malicious mischief. The
+most obvious examples of this class are criminal attempts.
+Attempt and intent, of course, are two distinct things. Intent to
+commit a crime is not itself criminal. There is no law against a
+man's intending to commit a murder the day after tomorrow. The
+law only deals with conduct. An attempt is an overt act. It
+differs from the attempted crime in this, that the act has failed
+to bring about the result which would have given it the character
+of the principal crime. If an attempt to murder results in death
+within a year and a day, it is murder. If an attempt to steal
+results in carrying off the owner's goods, it is larceny.
+
+If an act is done of which the natural and probable [66] effect
+under the circumstances is the accomplishment of a substantive
+crime, the criminal law, while it may properly enough moderate
+the severity of punishment if the act has not that effect in the
+particular case, can hardly abstain altogether from punishing it,
+on any theory. It has been argued that an actual intent is all
+that can give the act a criminal character in such instances. /1/
+But if the views which I have advanced as to murder and
+manslaughter are sound, the same principles ought logically to
+determine the criminality of acts in general. Acts should be
+judged by their tendency under the known circumstances, not by
+the actual intent which accompanies them.
+
+It may be true that in the region of attempts, as elsewhere, the
+law began with cases of actual intent, as those cases are the
+most obvious ones. But it cannot stop with them, unless it
+attaches more importance to the etymological meaning of the word
+attempt than to the general principles of punishment. Accordingly
+there is at least color of authority for the proposition that an
+act is punishable as an attempt, if, supposing it to have
+produced its natural and probable effect, it would have amounted
+to a substantive crime. /2/
+
+But such acts are not the only punishable attempts. There is
+another class in which actual intent is clearly necessary, and
+the existence of this class as well as the name (attempt) no
+doubt tends to affect the whole doctrine. Some acts may be
+attempts or misdemeanors which [67] could not have effected the
+crime unless followed by other acts on the part of the
+wrong-doer. For instance, lighting a match with intent to set
+fire to a haystack has been held to amount to a criminal attempt
+to burn it, although the defendant blew out the match on seeing
+that he was watched. /1/ So the purchase of dies for making
+counterfeit coin is a misdemeanor, although of course the coin
+would not be counterfeited unless the dies were used. /2/
+
+In such cases the law goes on a new principle, different from
+that governing most substantive crimes. The reason for punishing
+any act must generally be to prevent some harm which is foreseen
+as likely to follow that act under the circumstances in which it
+is done. In most substantive crimes the ground on which that
+likelihood stands is the common working of natural causes as
+shown by experience. But when an act is punished the natural
+effect of which is not harmful under the circumstances, that
+ground alone will not suffice. The probability does not exist
+unless there are grounds for expecting that the act done will be
+followed by other acts in connection with which its effect will
+be harmful, although not so otherwise. But as in fact no such
+acts have followed, it cannot, in general, be assumed, from the
+mere doing of what has been done, that they would have followed
+if the actor had not been interrupted. They would not have
+followed it unless the actor had chosen, and the only way
+generally available to show that he would have chosen to do them
+is by showing that he intended to do them when he did what he
+did. The accompanying intent in that case renders the otherwise
+[68] innocent act harmful, because it raises a probability that
+it will be followed by such other acts and events as will all
+together result in harm. The importance of the intent is not to
+show that the act was wicked, but to show that it was likely to
+be followed by hurtful consequences.
+
+It will be readily seen that there are limits to this kind of
+liability. The law does not punish every act which is done with
+the intent to bring about a crime. If a man starts from Boston to
+Cambridge for the purpose of committing a murder when he gets
+there, but is stopped by the draw and goes home, he is no more
+punishable than if he had sat in his chair and resolved to shoot
+somebody, but on second thoughts had given up the notion. On the
+other hand, a slave who ran after a white woman, but desisted
+before he caught her, has been convicted of an attempt to commit
+rape. /1/ We have seen what amounts to an attempt to burn a
+haystack; but it was said in the same case, that, if the
+defendant had gone no further than to buy a box of matches for
+the purpose, he would not have been liable.
+
+Eminent judges have been puzzled where to draw the line, or even
+to state the principle on which it should be drawn, between the
+two sets of cases. But the principle is believed to be similar to
+that on which all other lines are drawn by the law. Public
+policy, that is to say, legislative considerations, are at the
+bottom of the matter; the considerations being, in this case, the
+nearness of the danger, the greatness of the harm, and the degree
+of apprehension felt. When a man buys matches to fire a haystack,
+or starts on a journey meaning to murder at the end of it, there
+is still a considerable chance that he will [69] change his mind
+before he comes to the point. But when he has struck the match,
+or cocked and aimed the pistol, there is very little chance that
+he will not persist to the end, and the danger becomes so great
+that the law steps in. With an object which could not be used
+innocently, the point of intervention might be put further back,
+as in the case of the purchase of a die for coining.
+
+The degree of apprehension may affect the decision, as well as
+the degree of probability that the crime will be accomplished. No
+doubt the fears peculiar to a slaveowning community had their
+share in the conviction which has just been mentioned.
+
+There is one doubtful point which should not be passed over. It
+has been thought that to shoot at a block of wood thinking it to
+be a man is not an attempt to murder, /1/ and that to put a hand
+into an empty pocket, intending to pick it, is not an attempt to
+commit larceny, although on the latter question there is a
+difference of opinion. /2/ The reason given is, that an act which
+could not have effected the crime if the actor had been allowed
+to follow it up to all results to which in the nature of things
+it could have led, cannot be an attempt to commit that crime when
+interrupted. At some point or other, of course, the law must
+adopt this conclusion, unless it goes on the theory of
+retribution for guilt, and not of prevention of harm.
+
+But even to prevent harm effectually it will not do to be too
+exact. I do not suppose that firing a pistol at a man with intent
+to kill him is any the less an attempt to murder because the
+bullet misses its aim. Yet there the act has produced the whole
+effect possible to it in the [70] course of nature. It is just as
+impossible that that bullet under those circumstances should hit
+that man, as to pick an empty pocket. But there is no difficulty
+in saying that such an act under such circumstances is so
+dangerous, so far as the possibility of human foresight is
+concerned, that it should be punished. No one can absolutely
+know, though many would be pretty sure, exactly where the bullet
+will strike; and if the harm is done, it is a very great harm. If
+a man fires at a block, no harm can possibly ensue, and no theft
+can be committed in an empty pocket, besides that the harm of
+successful theft is less than that of murder. Yet it might be
+said that even such things as these should be punished, in order
+to make discouragement broad enough and easy to understand.
+
+There remain to be considered certain substantive crimes, which
+differ in very important ways from murder and the like, and for
+the explanation of which the foregoing analysis of intent in
+criminal attempts and analogous misdemeanors will be found of
+service.
+
+The type of these is larceny. Under this name acts are punished
+which of themselves would not be sufficient to accomplish the
+evil which the law seeks to prevent, and which are treated as
+equally criminal, whether the evil has been accomplished or not.
+Murder, manslaughter, and arson, on the other hand, are not
+committed unless the evil is accomplished, and they all consist
+of acts the tendency of which under the surrounding circumstances
+is to hurt or destroy person or property by the mere working of
+natural laws.
+
+In larceny the consequences immediately flowing from the act are
+generally exhausted with little or no harm to the owner. Goods
+are removed from his possession by [71] trespass, and that is
+all, when the crime is complete. But they must be permanently
+kept from him before the harm is done which the law seeks to
+prevent. A momentary loss of possession is not what has been
+guarded against with such severe penalties. What the law means to
+prevent is the loss of it wholly and forever, as is shown by the
+fact that it is not larceny to take for a temporary use without
+intending to deprive the owner of his property. If then the law
+punishes the mere act of taking, it punishes an act which will
+not of itself produce the evil effect sought to be prevented, and
+punishes it before that effect has in any way come to pass.
+
+The reason is plain enough. The law cannot wait until the
+property has been used up or destroyed in other hands than the
+owner's, or until the owner has died, in order to make sure that
+the harm which it seeks to prevent has been done. And for the
+same reason it cannot confine itself to acts likely to do that
+harm. For the harm of permanent loss of property will not follow
+from the act of taking, but only from the series of acts which
+constitute removing and keeping the property after it has been
+taken. After these preliminaries, the bearing of intent upon the
+crime is easily seen.
+
+According to Mr. Bishop, larceny is "the taking and removing, by
+trespass, of personal property which the trespasser knows to
+belong either generally or specially to another, with the intent
+to deprive such owner of his ownership therein; and perhaps it
+should be added, for the sake of some advantage to the
+trespasser, a proposition on which the decisions are not
+harmonious." /1/
+
+There must be an intent to deprive such owner of his [72]
+ownership therein, it is said. But why? Is it because the law is
+more anxious not to put a man in prison for stealing unless he is
+actually wicked, than it is not to hang him for killing another?
+That can hardly be. The true answer is, that the intent is an
+index to the external event which probably would have happened,
+and that, if the law is to punish at all, it must, in this case,
+go on probabilities, not on accomplished facts. The analogy to
+the manner of dealing with attempts is plain. Theft may be called
+an attempt to permanently deprive a man of his property, which is
+punished with the same severity whether successful or not. If
+theft can rightly be considered in this way, intent must play the
+same part as in other attempts. An act which does not fully
+accomplish the prohibited result may be made wrongful by evidence
+that but for some interference it would have been followed by
+other acts co-ordinated with it to produce that result. This can
+only be shown by showing intent. In theft the intent to deprive
+the owner of his property establishes that the thief would have
+retained, or would not have taken steps to restore, the stolen
+goods. Nor would it matter that the thief afterwards changed his
+mind and returned the goods. From the point of view of attempt,
+the crime was already complete when the property was carried off.
+
+It may be objected to this view, that, if intent is only a
+makeshift which from a practical necessity takes the place of
+actual deprivation, it ought not to be required where the actual
+deprivation is wholly accomplished, provided the same criminal
+act produces the whole effect. Suppose, for instance, that by one
+and the same motion a man seizes and backs another's horse over a
+precipice. The whole evil which the law seeks to prevent is the
+natural and manifestly [73] certain consequence of the act under
+the known circumstances. In such a case, if the law of larceny is
+consistent with the theories here maintained, the act should be
+passed upon according to its tendency, and the actual intent of
+the wrong-doer not in any way considered. Yet it is possible, to
+say the least, that even in such a case the intent would make all
+the difference. I assume that the act was without excuse and
+wrongful, and that it would have amounted to larceny, if done for
+the purpose of depriving the owner of his horse. Nevertheless, if
+it was done for the sake of an experiment, and without actual
+foresight of the destruction, or evil design against the owner,
+the trespasser might not be held a thief.
+
+The inconsistency, if there is one, seems to be explained by the
+way in which the law has grown. The distinctions of the common
+law as to theft are not those of a broad theory of legislation;
+they are highly technical, and very largely dependent upon
+history for explanation. /1/
+
+The type of theft is taking to one's own user It used to be, and
+sometimes still is, thought that the taking must be lucri catesa,
+for the sake of some advantage to the thief. In such cases the
+owner is deprived of his property by the thief's keeping it, not
+by its destruction, and the permanence of his loss can only be
+judged of beforehand by the intent to keep. The intent is
+therefore always necessary, and it is naturally stated in the
+form of a self-regarding intent. It was an advance on the old
+precedents when it was decided that the intent to deprive the
+owner of his property was sufficient. As late as 1815 the English
+judges stood only six to five in favor of the proposition [74]
+that it was larceny to take a horse intending to kill it for no
+other purpose than to destroy evidence against a friend. /1/ Even
+that case, however, did not do away with the universality of
+intent as a test, for the destruction followed the taking, and it
+is an ancient rule that the criminality of the act must be
+determined by the state of things at the time of the taking, and
+not afterwards. Whether the law of larceny would follow what
+seems to be the general principle of criminal law, or would be
+held back by tradition, could only be decided by a case like that
+supposed above, where the same act accomplishes both taking and
+destruction. As has been suggested already, tradition might very
+possibly prevail.
+
+Another crime in which the peculiarities noticed in larceny are
+still more clearly marked, and at the same time more easily
+explained, is burglary. It is defined as breaking and entering
+any dwelling-house by night with intent to commit a felony
+therein. /2/ The object of punishing such a breaking and entering
+is not to prevent trespasses, even when committed by night, but
+only such trespasses as are the first step to wrongs of a greater
+magnitude, like robbery or murder. /3/ In this case the function
+of intent when proved appears more clearly than in theft, but it
+is precisely similar. It is an index to the probability of
+certain future acts which the law seeks to prevent. And here the
+law gives evidence that this is the true explanation. For if the
+apprehended act did follow, then it is no longer necessary to
+allege that the breaking and entering was with that intent. An
+indictment for burglary which charges that [75] the defendant
+broke into a dwelling-house and stole certain property, is just
+as good as one which alleges that he broke in with intent to
+steal. /1/
+
+It is believed that enough has now been said to explain the
+general theory of criminal liability, as it stands at common law.
+The result may be summed up as follows. All acts are indifferent
+per se.
+
+In the characteristic type of substantive crime acts are rendered
+criminal because they are done finder circumstances in which they
+will probably cause some harm which the law seeks to prevent.
+
+The test of criminality in such cases is the degree of danger
+shown by experience to attend that act under those circumstances.
+
+In such cases the mens rea, or actual wickedness of the party, is
+wholly unnecessary, and all reference to the state of his
+consciousness is misleading if it means anything more than that
+the circumstances in connection with which the tendency of his
+act is judged are the circumstances known to him. Even the
+requirement of knowledge is subject to certain limitations. A man
+must find out at his peril things which a reasonable and prudent
+man would have inferred from the things actually known. In some
+cases, especially of statutory crimes, he must go even further,
+and, when he knows certain facts, must find out at his peril
+whether the other facts are present which would make the act
+criminal. A man who abducts a girl from her parents in England
+must find out at his peril whether she is under sixteen.
+
+[76] In some cases it may be that the consequence of the act,
+under the circumstances, must be actually foreseen, if it is a
+consequence which a prudent man would not have foreseen. The
+reference to the prudent man, as a standard, is the only form in
+which blameworthiness as such is an element of crime, and what
+would be blameworthy in such a man is an element;--first, as a
+survival of true moral standards; second, because to punish what
+would not be blameworthy in an average member of the community
+would be to enforce a standard which was indefensible
+theoretically, and which practically was too high for that
+community.
+
+In some cases, actual malice or intent, in the common meaning of
+those words, is an element in crime. But it will be found that,
+when it is so, it is because the act when done maliciously is
+followed by harm which would not have followed the act alone, or
+because the intent raises a strong probability that an act,
+innocent in itself, will be followed by other acts or events in
+connection with which it will accomplish the result sought to be
+prevented by the law.
+
+
+[77]
+
+
+
+
+LECTURE III. -- TORTS.--TRESPASS AND NEGLIGENCE.
+
+The object of the next two Lectures is to discover whether there
+is any common ground at the bottom of all liability in tort, and
+if so, what that ground is. Supposing the attempt to succeed, it
+will reveal the general principle of civil liability at common
+law. The liabilities incurred by way of contract are more or less
+expressly fixed by the agreement of the parties concerned, but
+those arising from a tort are independent of any previous consent
+of the wrong-doer to bear the loss occasioned by his act. If A
+fails to pay a certain sum on a certain day, or to deliver a
+lecture on a certain night, after having made a binding promise
+to do so, the damages which he has to pay are recovered in
+accordance with his consent that some or all of the harms which
+may be caused by his failure shall fall upon him. But when A
+assaults or slanders his neighbor, or converts his neighbor's
+property, he does a harm which he has never consented to bear,
+and if the law makes him pay for it, the reason for doing so must
+be found in some general view of the conduct which every one may
+fairly expect and demand from every other, whether that other has
+agreed to it or not.
+
+Such a general view is very hard to find. The law did not begin
+with a theory. It has never worked one out. The point from which
+it started and that at which I shall [78] try to show that it has
+arrived, are on different planes. In the progress from one to the
+other, it is to be expected that its course should not be
+straight and its direction not always visible. All that can be
+done is to point out a tendency, and to justify it. The tendency,
+which is our main concern, is a matter of fact to be gathered
+from the cases. But the difficulty of showing it is much enhanced
+by the circumstance that, until lately, the substantive law has
+been approached only through the categories of the forms of
+action. Discussions of legislative principle have been darkened
+by arguments on the limits between trespass and case, or on the
+scope of a general issue. In place of a theory of tort, we have a
+theory of trespass. And even within that narrower limit,
+precedents of the time of the assize and jurata have been applied
+without a thought of their connection with a long forgotten
+procedure.
+
+Since the ancient forms of action have disappeared, a broader
+treatment of the subject ought to be possible. Ignorance is the
+best of law reformers. People are glad to discuss a question on
+general principles, when they have forgotten the special
+knowledge necessary for technical reasoning. But the present
+willingness to generalize is founded on more than merely negative
+grounds. The philosophical habit of the day, the frequency of
+legislation, and the ease with which the law may be changed to
+meet the opinions and wishes of the public, all make it natural
+and unavoidable that judges as well as others should openly
+discuss the legislative principles upon which their decisions
+must always rest in the end, and should base their judgments upon
+broad considerations of policy to which the traditions of the
+bench would hardly have tolerated a reference fifty years ago.
+
+[79] The business of the law of torts is to fix the dividing
+lines between those cases in which a man is liable for harm which
+he has done, and those in which he is not. But it cannot enable
+him to predict with certainty whether a given act under given
+circumstances will make him liable, because an act will rarely
+have that effect unless followed by damage, and for the most
+part, if not always, the consequences of an act are not known,
+but only guessed at as more or less probable. All the rules that
+the law can lay down beforehand are rules for determining the
+conduct which will be followed by liability if it is followed by
+harm--that is, the conduct which a man pursues at his peril. The
+only guide for the future to be drawn from a decision against a
+defendant in an action of tort is that similar acts, under
+circumstances which cannot be distinguished except by the result
+from those of the defendant, are done at the peril of the actor;
+that if he escapes liability, it is simply because by good
+fortune no harm comes of his conduct in the particular event.
+
+If, therefore, there is any common ground for all liability in
+tort, we shall best find it by eliminating the event as it
+actually turns out, and by considering only the principles on
+which the peril of his conduct is thrown upon the actor. We are
+to ask what are the elements, on the defendant's side, which must
+all be present before liability is possible, and the presence of
+which will commonly make him liable if damage follows.
+
+The law of torts abounds in moral phraseology. It has much to say
+of wrongs, of malice, fraud, intent, and negligence. Hence it may
+naturally be supposed that the risk of a man's conduct is thrown
+upon him as the result of some moral short-coming. But while this
+notion has been [80] entertained, the extreme opposite will be
+found to have been a far more popular opinion;--I mean the notion
+that a man is answerable for all the consequences of his acts,
+or, in other words, that he acts at his peril always, and wholly
+irrespective of the state of his consciousness upon the matter.
+
+To test the former opinion it would be natural to take up
+successively the several words, such as negligence and intent,
+which in the language of morals designate various well-understood
+states of mind, and to show their significance in the law. To
+test the latter, it would perhaps be more convenient to consider
+it under the head of the several forms of action. So many of our
+authorities are decisions under one or another of these forms,
+that it will not be safe to neglect them, at least in the first
+instance; and a compromise between the two modes of approaching
+the subject may be reached by beginning with the action of
+trespass and the notion of negligence together, leaving wrongs
+which are defined as intentional for the next Lecture.
+
+Trespass lies for unintentional, as well as for intended wrongs.
+Any wrongful and direct application of force is redressed by that
+action. It therefore affords a fair field for a discussion of the
+general principles of liability for unintentional wrongs at
+common law. For it can hardly be supposed that a man's
+responsibility for the consequences of his acts varies as the
+remedy happens to fall on one side or the other of the penumbra
+which separates trespass from the action on the case. And the
+greater part of the law of torts will be found under one or the
+other of those two heads.
+
+It might be hastily assumed that the action on the case [81] is
+founded on the defendant's negligence. But if that be so, the
+same doctrine must prevail in trespass. It might be assumed that
+trespass is founded on the defendant's having caused damage by
+his act, without regard to negligence. But if that be true, the
+law must apply the same criterion to other wrongs differing from
+trespass only in some technical point; as, for instance, that the
+property damaged was in the defendant's possession. Neither of
+the above assumptions, however, can be hastily permitted. It
+might very well be argued that the action on the case adopts the
+severe rule just suggested for trespass, except when the action
+is founded on a contract. Negligence, it might be said, had
+nothing to do with the common-law liability for a nuisance, and
+it might be added that, where negligence was a ground of
+liability, a special duty had to be founded in the defendant's
+super se assumpsit, or public calling. /1/ On the other hand, we
+shall see what can be said for the proposition, that even in
+trespass there must at least be negligence. But whichever
+argument prevails for the one form of action must prevail for the
+other. The discussion may therefore be shortened on its technical
+side, by confining it to trespass so far as may be practicable
+without excluding light to be got from other parts of the law.
+
+As has just been hinted, there are two theories of the common-law
+liability for unintentional harm. Both of them seem to receive
+the implied assent of popular textbooks, and neither of them is
+wanting in plausibility and the semblance of authority.
+
+The first is that of Austin, which is essentially the theory of a
+criminalist. According to him, the characteristic [82] feature of
+law, properly so called, is a sanction or detriment threatened
+and imposed by the sovereign for disobedience to the sovereign's
+commands. As the greater part of the law only makes a man civilly
+answerable for breaking it, Austin is compelled to regard the
+liability to an action as a sanction, or, in other words, as a
+penalty for disobedience. It follows from this, according to the
+prevailing views of penal law, that such liability ought only to
+be based upon personal fault; and Austin accepts that conclusion,
+with its corollaries, one of which is that negligence means a
+state of the party's mind. /1/ These doctrines will be referred
+to later, so far as necessary.
+
+The other theory is directly opposed to the foregoing. It seems
+to be adopted by some of the greatest common law authorities, and
+requires serious discussion before it can be set aside in favor
+of any third opinion which may be maintained. According to this
+view, broadly stated, under the common law a man acts at his
+peril. It may be held as a sort of set-off, that he is never
+liable for omissions except in consequence of some duty
+voluntarily undertaken. But the whole and sufficient ground for
+such liabilities as he does incur outside the last class is
+supposed to be that he has voluntarily acted, and that damage has
+ensued. If the act was voluntary, it is totally immaterial that
+the detriment which followed from it was neither intended nor due
+to the negligence of the actor.
+
+In order to do justice to this way of looking at the subject, we
+must remember that the abolition of the common-law forms of
+pleading has not changed the rules of substantive law. Hence,
+although pleaders now generally [83] allege intent or negligence,
+anything which would formerly have been sufficient to charge a
+defendant in trespass is still sufficient, notwithstanding the
+fact that the ancient form of action and declaration has
+disappeared.
+
+In the first place, it is said, consider generally the protection
+given by the law to property, both within and outside the limits
+of the last-named action. If a man crosses his neighbor's
+boundary by however innocent a mistake, or if his cattle escape
+into his neighbor's field, he is said to be liable in trespass
+quare clausum fregit. If an auctioneer in the most perfect good
+faith, and in the regular course of his business, sells goods
+sent to his rooms for the purpose of being sold, he may be
+compelled to pay their full value if a third person turns out to
+be the owner, although he has paid over the proceeds, and has no
+means of obtaining indemnity.
+
+Now suppose that, instead of a dealing with the plaintiff's
+property, the case is that force has proceeded directly from the
+defendant's body to the plaintiff's body, it is urged that, as
+the law cannot be less careful of the persons than of the
+property of its subjects, the only defences possible are similar
+to those which would have been open to an alleged trespass on
+land. You may show that there was no trespass by showing that the
+defendant did no act; as where he was thrown from his horse upon
+the plaintiff, or where a third person took his hand and struck
+the plaintiff with it. In such cases the defendant's body is file
+passive instrument of an external force, and the bodily motion
+relied on by the plaintiff is not his act at all. So you may show
+a justification or excuse in the conduct of the plaintiff
+himself. But if no such excuse is shown, and the defendant has
+voluntarily acted, he must answer [84] for the consequences,
+however little intended and however unforeseen. If, for instance,
+being assaulted by a third person, the defendant lifted his stick
+and accidentally hit the plaintiff, who was standing behind him,
+according to this view he is liable, irrespective of any
+negligence toward the party injured.
+
+The arguments for the doctrine under consideration are, for the
+most part, drawn from precedent, but it is sometimes supposed to
+be defensible as theoretically sound. Every man, it is said, has
+an absolute right to his person, and so forth, free from
+detriment at the hands of his neighbors. In the cases put, the
+plaintiff has done nothing; the defendant, on the other hand, has
+chosen to act. As between the two, the party whose voluntary
+conduct has caused the damage should suffer, rather than one who
+has had no share in producing it.
+
+We have more difficult matter to deal with when we turn to the
+pleadings and precedents in trespass. The declaration says
+nothing of negligence, and it is clear that the damage need not
+have been intended. The words vi et armis and contra pacere,
+which might seem to imply intent, are supposed to have been
+inserted merely to give jurisdiction to the king's court.
+Glanvill says it belongs to the sheriff, in case of neglect on
+the part of lords of franchise, to take cognizance of melees,
+blows, and even wounds, unless the accuser add a charge of breach
+of the king's peace (nisi accusator adjiciat de pace Domini Regis
+infracta). /1/ Reeves observes, "In this distinction between the
+sheriff's jurisdiction and that of the king, we see the reason of
+the allegation in modern indictments and writs, vi et amis, of
+'the king's crown and dignity,' 'the king's [85] peace,' and 'the
+peace,'--this last expression being sufficient, after the peace
+of the sheriff had ceased to be distinguished as a separate
+jurisdiction." /1/
+
+Again, it might be said that, if the defendant's intent or
+neglect was essential to his liability, the absence of both would
+deprive his act of the character of a trespass, and ought
+therefore to be admissible under the general issue. But it is
+perfectly well settled at common law that "Not guilty" only
+denies the act. /2/
+
+Next comes the argument from authority. I will begin with an
+early and important case. /3/ It was trespass quare clausum. The
+defendant pleaded that he owned adjoining land, upon which was a
+thorn hedge; that he cut the thorns, and that they, against his
+will (ipso invito), fell on the plaintiff's land, and the
+defendant went quickly upon the same, and took them, which was
+the trespass complained of. And on demurrer judgment was given
+for the plaintiff. The plaintiff's counsel put cases which have
+been often repeated. One of them, Fairfax, said: "There is a
+diversity between an act resulting in a felony, and one resulting
+in a trespass.... If one is cutting trees, and the boughs fall
+on a man and wound him, in this case he shall have an action of
+trespass, &c., and also, sir, if one is shooting at butts, and
+his bow shakes in his hands, and kills a man, ipso invito, it is
+no felony, as has been said, [86] &c.; but if he wounds one by
+shooting, he shall have a good action of trespass against him,
+and yet the shooting was lawful, &c., and the wrong which the
+other receives was against his will, &c.; and so here, &c."
+Brian, another counsel, states the whole doctrine, and uses
+equally familiar illustrations. "When one does a thing, he is
+bound to do it in such a way that by his act no prejudice or
+damage shall be done to &c. As if I am building a house, and when
+the timber is being put up a piece of timber falls on my
+neighbor's house and breaks his house, he shall have a good
+action, &c.; and yet the raising of the house was lawful, and the
+timber fell, me invito, &c. And so if one assaults me and I
+cannot escape, and I in self-defence lift my stick to strike him,
+and in lifting it hit a man who is behind me, in this case he
+shall have an action against me, yet my raising my stick was
+lawful in self-defence, and I hit him, me invito, &c.; and so
+here, &C."
+
+
+"Littleton, J. to the same intent, and if a man is damaged he
+ought to be recompensed.... If your cattle come on my land and
+eat my grass, notwithstanding you come freshly and drive them
+out, you ought to make amends for what your cattle have done, be
+it more or less.... And, sir, if this should be law that he
+might enter and take the thorns, for the same reason, if he cut a
+large tree, he might come with his wagons and horses to carry the
+trees off, which is not reason, for perhaps he has corn or other
+crops growing, &c., and no more here, for the law is all one in
+great things and small.... Choke, C. J. to the same intent, for
+when the principal thing was not lawful, that which depends upon
+it was not lawful; for when he cut the thorns and they fell on my
+land, [87] this falling was not lawful, and therefore his coming
+to take them out was not lawful. As to what was said about their
+falling in ipso invito, that is no plea, but he ought to show
+that he could not do it in any other way, or that he did all that
+was in his power to keep them out."
+
+Forty years later, /1/ the Year Books report Rede, J. as adopting
+the argument of Fairfax in the last case. In trespass, he says,
+"the intent cannot be construed; but in felony it shall be. As
+when a man shoots at butts and kills a man, it is not felony et
+il ser come n'avoit l'entent de luy tuer; and so of a tiler on a
+house who with a stone kills a man unwittingly, it is not felony.
+/2/ But when a man shoots at the butts and wounds a man, though
+it is against his will, he shall be called a trespasser against
+his intent."
+
+There is a series of later shooting cases, Weaver v. Ward, /3/
+Dickenson v. Watson, /4/ and Underwood v. Hewson, /5/ followed by
+the Court of Appeals of New York in Castle v. Duryee, /6/ in
+which defences to the effect that the damage was done
+accidentally and by misfortune, and against the will of the
+defendant, were held insufficient.
+
+In the reign of Queen Elizabeth it was held that where a man with
+a gun at the door of his house shot at a fowl, and thereby set
+fire to his own house and to the house of his neighbor, he was
+liable in an action on the case generally, the declaration not
+being on the custom of the realm, [88] "viz. for negligently
+keeping his fire." "For the injury is the same, although this
+mischance was not by a common negligence, but by misadventure."
+/1/
+
+The above-mentioned instances of the stick and shooting at butts
+became standard illustrations; they are repeated by Sir Thomas
+Raymond, in Bessey v. Olliot, /2/ by Sir William Blackstone, in
+the famous squib case, /3/ and by other judges, and have become
+familiar through the textbooks. Sir T. Raymond, in the above
+case, also repeats the thought and almost the words of Littleton,
+J., which have been quoted, and says further: "In all civil acts
+the law doth not so much regard the intent of the actor, as the
+loss and damage of the party suffering." Sir William Blackstone
+also adopts a phrase from Dickenson v. Watson, just cited:
+"Nothing but inevitable necessity" is a justification. So Lord
+Ellenborough, in Leame v. Bray: /4/ "If the injury were received
+from the personal act of another, it was deemed sufficient to
+make it trespass"; or, according to the more frequently quoted
+language of Grose, J., in the same case: "Looking into all the
+cases from the Year Book in the 21 H. VII. down to the latest
+decision on the subject, I find the principle to be, that if the
+injury be done by the act of the party himself at the time, or he
+be the immediate cause of it, though it happen accidentally or by
+misfortune, yet he is answerable in trespass." Further citations
+are deemed unnecessary.
+
+In spite, however, of all the arguments which may be [89] urged
+for the rule that a man acts at his peril, it has been rejected
+by very eminent courts, even under the old forms of action. In
+view of this fact, and of the further circumstance that, since
+the old forms have been abolished, the allegation of negligence
+has spread from the action on the case to all ordinary
+declarations in tort which do not allege intent, probably many
+lawyers would be surprised that any one should think it worth
+while to go into the present discussion. Such is the natural
+impression to be derived from daily practice. But even if the
+doctrine under consideration had no longer any followers, which
+is not the case, it would be well to have something more than
+daily practice to sustain our views upon so fundamental a
+question; as it seems to me at least, the true principle is far
+from being articulately grasped by all who are interested in it,
+and can only be arrived at after a careful analysis of what has
+been thought hitherto. It might be thought enough to cite the
+decisions opposed to the rule of absolute responsibility, and to
+show that such a rule is inconsistent with admitted doctrines and
+sound policy. But we may go further with profit, and inquire
+whether there are not strong grounds for thinking that the common
+law has never known such a rule, unless in that period of dry
+precedent which is so often to be found midway between a creative
+epoch and a period of solvent philosophical reaction.
+Conciliating the attention of those who, contrary to most modern
+practitioners, still adhere to the strict doctrine, by reminding
+them once more that there are weighty decisions to be cited
+adverse to it, and that, if they have involved an innovation, the
+fact that it has been made by such magistrates as Chief Justice
+Shaw goes far to prove that the change was politic, I [90] think
+I may assert that a little reflection will show that it was
+required not only by policy, but by consistency. I will begin
+with the latter.
+
+The same reasoning which would make a man answerable in trespass
+for all damage to another by force directly resulting from his
+own act, irrespective of negligence or intent, would make him
+answerable in case for the like damage similarly resulting from
+the act of his servant, in the course of the latter's employment.
+The discussions of the company's negligence in many railway cases
+would therefore be wholly out of place, for although, to be sure,
+there is a contract which would make the company liable for
+negligence, that contract cannot be taken to diminish any
+liability which would otherwise exist for a trespass on the part
+of its employees.
+
+More than this, the same reasoning would make a defendant
+responsible for all damage, however remote, of which his act
+could be called the cause. So long, at least, as only physical or
+irresponsible agencies, however unforeseen, co-operated with the
+act complained of to produce the result, the argument which would
+resolve the case of accidentally striking the plaintiff, when
+lifting a stick in necessary self-defence, adversely to the
+defendant, would require a decision against him in every case
+where his act was a factor in the result complained of. The
+distinction between a direct application of force, and causing
+damage indirectly, or as a more remote consequence of one's act,
+although it may determine whether the form of action should be
+trespass or case, does not touch the theory of responsibility, if
+that theory be that a man acts at his peril.
+
+[91] As was said at the outset, if the strict liability is to be
+maintained at all, it must be maintained throughout. A principle
+cannot be stated which would retain the strict liability in
+trespass while abandoning it in case. It cannot be said that
+trespass is for acts alone, and case for consequences of those
+acts. All actions of trespass are for consequences of acts, not
+for the acts themselves. And some actions of trespass are for
+consequences more remote from the defendant's act than in other
+instances where the remedy would be case.
+
+An act is always a voluntary muscular contraction, and nothing
+else. The chain of physical sequences which it sets in motion or
+directs to the plaintiff's harm is no part of it, and very
+generally a long train of such sequences intervenes. An example
+or two will make this extremely clear.
+
+When a man commits an assault and battery with a pistol, his only
+act is to contract the muscles of his arm and forefinger in a
+certain way, but it is the delight of elementary writers to point
+out what a vast series of physical changes must take place before
+the harm is done. Suppose that, instead of firing a pistol, he
+takes up a hose which is discharging water on the sidewalk, and
+directs it at the plaintiff, he does not even set in motion the
+physical causes which must co-operate with his act to make a
+battery. Not only natural causes, but a living being, may
+intervene between the act and its effect. Gibbons v. Pepper, /1/
+which decided that there was no battery when a man's horse was
+frightened by accident or a third person and ran away with him,
+and ran over the plaintiff, takes the distinction that, if the
+rider by spurring is the cause of [92] the accident, then he is
+guilty. In Scott v. Shepherd, /1/ already mentioned, trespass was
+maintained against one who had thrown a squib into a crowd, where
+it was tossed from hand to hand in self-defence until it burst
+and injured the plaintiff. Here even human agencies were a part
+of the chain between the defendant's act and the result, although
+they were treated as more or less nearly automatic, in order to
+arrive at the decision.
+
+Now I repeat, that, if principle requires us to charge a man in
+trespass when his act has brought force to bear on another
+through a comparatively short train of intervening causes, in
+spite of his having used all possible care, it requires the same
+liability, however numerous and unexpected the events between the
+act and the result. If running a man down is a trespass when the
+accident can be referred to the rider's act of spurring, why is
+it not a tort in every case, as was argued in Vincent v.
+Stinehour, /2/ seeing that it can always be referred more
+remotely to his act of mounting and taking the horse out?
+
+Why is a man not responsible for the consequences of an act
+innocent in its direct and obvious effects, when those
+consequences would not have followed but for the intervention of
+a series of extraordinary, although natural, events? The reason
+is, that, if the intervening events are of such a kind that no
+foresight could have been expected to look out for them, the
+defendant is not to blame for having failed to do so. It seems to
+be admitted by the English judges that, even on the question
+whether the acts of leaving dry trimmings in hot weather by the
+side of a railroad, and then sending an engine over the track,
+are [93] negligent,--that is, are a ground of liability,--the
+consequences which might reasonably be anticipated are material.
+/1/ Yet these are acts which, under the circumstances, can hardly
+be called innocent in their natural and obvious effects. The same
+doctrine has been applied to acts in violation of statute which
+could not reasonably have been expected to lead to the result
+complained of. /2/
+
+But there is no difference in principle between the case where a
+natural cause or physical factor intervenes after the act in some
+way not to be foreseen, and turns what seemed innocent to harm,
+and the case where such a cause or factor intervenes, unknown, at
+the time; as, for the matter of that, it did in the English cases
+cited. If a man is excused in the one case because he is not to
+blame, he must be in the other. The difference taken in Gibbons
+v. Pepper, cited above, is not between results which are and
+those which are not the consequences of the defendant's acts: it
+is between consequences which he was bound as a reasonable man to
+contemplate, and those which he was not. Hard spurring is just so
+much more likely to lead to harm than merely riding a horse in
+the street, that the court thought that the defendant would be
+bound to look out for the consequences of the one, while it would
+not hold him liable for those resulting merely from the other;
+[94] because the possibility of being run away with when riding
+quietly, though familiar, is comparatively slight. If, however,
+the horse had been unruly, and had been taken into a frequented
+place for the purpose of being broken, the owner might have been
+liable, because "it was his fault to bring a wild horse into a
+place where mischief might probably be done."
+
+To return to the example of the accidental blow with a stick
+lifted in self-defence, there is no difference between hitting a
+person standing in one's rear and hitting one who was pushed by a
+horse within range of the stick just as it was lifted, provided
+that it was not possible, under the circumstances, in the one
+case to have known, in the other to have anticipated, the
+proximity. In either case there is wanting the only element which
+distinguishes voluntary acts from spasmodic muscular contractions
+as a ground of liability. In neither of them, that is to say, has
+there been an opportunity of choice with reference to the
+consequence complained of,--a chance to guard against the result
+which has come to pass. A choice which entails a concealed
+consequence is as to that consequence no choice.
+
+The general principle of our law is that loss from accident must
+lie where it falls, and this principle is not affected by the
+fact that a human being is the instrument of misfortune. But
+relatively to a given human being anything is accident which he
+could not fairly have been expected to contemplate as possible,
+and therefore to avoid. In the language of the late Chief Justice
+Nelson of New York: "No case or principle can be found, or if
+found can be maintained, subjecting an individual to liability
+for [95] an act done without fault on his part.... All the cases
+concede that an injury arising from inevitable accident, or,
+which in law or reason is the same thing, from an act that
+ordinary human care and foresight are unable to guard against, is
+but the misfortune of the sufferer, and lays no foundation for
+legal responsibility." /1/ If this were not so, any act would be
+sufficient, however remote, which set in motion or opened the
+door for a series of physical sequences ending in damage; such as
+riding the horse, in the case of the runaway, or even coming to a
+place where one is seized with a fit and strikes the plaintiff in
+an unconscious spasm. Nay, why need the defendant have acted at
+all, and why is it not enough that his existence has been at the
+expense of the plaintiff? The requirement of an act is the
+requirement that the defendant should have made a choice. But the
+only possible purpose of introducing this moral element is to
+make the power of avoiding the evil complained of a condition of
+liability. There is no such power where the evil cannot be
+foreseen. /2/ Here we reach the argument from policy, and I shall
+accordingly postpone for a moment the discussion of trespasses
+upon land, and of conversions, and will take up the liability for
+cattle separately at a later stage.
+
+A man need not, it is true, do this or that act, the term act
+implies a choice,--but he must act somehow. Furthermore, the
+public generally profits by individual activity. As action cannot
+be avoided, and tends to the public good, there is obviously no
+policy in throwing the hazard of what is at once desirable and
+inevitable upon the actor. [96] The state might conceivably make
+itself a mutual insurance company against accidents, and
+distribute the burden of its citizens' mishaps among all its
+members. There might be a pension for paralytics, and state aid
+for those who suffered in person or estate from tempest or wild
+beasts. As between individuals it might adopt the mutual
+insurance principle pro tanto, and divide damages when both were
+in fault, as in the rusticum judicium of the admiralty, or it
+might throw all loss upon the actor irrespective of fault. The
+state does none of these things, however, and the prevailing view
+is that its cumbrous and expensive machinery ought not to be set
+in motion unless some clear benefit is to be derived from
+disturbing the status quo. State interference is an evil, where
+it cannot be shown to be a good. Universal insurance, if desired,
+can be better and more cheaply accomplished by private
+enterprise. The undertaking to redistribute losses simply on the
+ground that they resulted from the defendant's act would not only
+be open to these objections, but, as it is hoped the preceding
+discussion has shown, to the still graver one of offending the
+sense of justice. Unless my act is of a nature to threaten
+others, unless under the circumstances a prudent man would have
+foreseen the possibility of harm, it is no more justifiable to
+make me indemnify my neighbor against the consequences, than to
+make me do the same thing if I had fallen upon him in a fit, or
+to compel me to insure him against lightning.
+
+I must now recur to the conclusions drawn from innocent
+trespasses upon land, and conversions, and the supposed analogy
+of those cases to trespasses against the person, lest the law
+concerning the latter should be supposed to lie between two
+antinomies, each necessitating with equal cogency an opposite
+conclusion to the other.
+
+[97] Take first the case of trespass upon land attended by actual
+damage. When a man goes upon his neighbor's land, thinking it is
+his own, he intends the very act or consequence complained of. He
+means to intermeddle with a certain thing in a certain way, and
+it is just that intended intermeddling for which he is sued. /1/
+Whereas, if he accidentally hits a stranger as he lifts his staff
+in self defence, the fact, which is the gist of the
+action,--namely, the contact between the staff and his neighbor's
+head,--was not intended, and could not have been foreseen. It
+might be answered, to be sure, that it is not for intermeddling
+with property, but for intermeddling with the plaintiff's
+property, that a man is sued; and that in the supposed cases,
+just as much as in that of the accidental blow, the defendant is
+ignorant of one of the facts making up the total environment, and
+which must be present to make his action wrong. He is ignorant,
+that is to say, that the true owner either has or claims any
+interest in the property in question, and therefore he does not
+intend a wrongful act, because he does not mean to deal with his
+neighbor's property. But the answer to this is, that he does
+intend to do the damage complained of. One who diminishes the
+value of property by intentional damage knows it belongs to
+somebody. If he thinks it belongs to himself, he expects whatever
+harm he may do to come out of his own pocket. It would be odd if
+he were to get rid of the burden by discovering that it belonged
+to his neighbor. It is a very different thing to say that he who
+intentionally does harm must bear the loss, from saying that one
+from whose acts harm follows accidentally, as [98] a consequence
+which could not have been foreseen, must bear it.
+
+Next, suppose the act complained of is an exercise of dominion
+over the plaintiff's property, such as a merely technical
+trespass or a conversion. If the defendant thought that the
+property belonged to himself, there seems to be no abstract
+injustice in requiring him to know the limits of his own titles,
+or, if he thought that it belonged to another, in holding him
+bound to get proof of title before acting. Consider, too, what
+the defendant's liability amounts to, if the act, whether an
+entry upon land or a conversion of chattels, has been unattended
+by damage to the property, and the thing has come back to the
+hands of the true owner. The sum recovered is merely nominal, and
+the payment is nothing more than a formal acknowledgment of the
+owner's title; which, considering the effect of prescription and
+statutes of limitation upon repeated acts of dominion, is no more
+than right. /1/ All semblance of injustice disappears when the
+defendant is allowed to avoid the costs of an action by tender or
+otherwise.
+
+But suppose the property has not come back to the hands of the
+true owner. If the thing remains in the hands of the defendant,
+it is clearly right that he should surrender it. And if instead
+of the thing itself he holds the proceeds of a sale, it is as
+reasonable to make him pay over its value in trover or assumpsit
+as it would have been to compel a surrender of the thing. But the
+question whether the defendant has subsequently paid over the
+proceeds of the sale of a chattel to a third person, cannot
+affect the rights of the true owner of the [99] chattel. In the
+supposed case of an auctioneer, for instance, if he had paid the
+true owner, it would have been an answer to his bailor's claim.
+If he has paid his bailor instead, he has paid one whom he was
+not bound to pay, and no general principle requires that this
+should be held to divest the plaintiff's right.
+
+Another consideration affecting the argument that the law as to
+trespasses upon property establishes a general principle, is that
+the defendant's knowledge or ignorance of the plaintiff's title
+is likely to lie wholly in his own breast, and therefore hardly
+admits of satisfactory proof. Indeed, in many cases it cannot
+have been open to evidence at all at the time when the law was
+settled, before parties were permitted to testify. Accordingly,
+in Basely v. Clarkson, /1/ where the defence set up to an action
+of trespass quare clausum was that the defendant in mowing his
+own land involuntarily and by mistake mowed down some of the
+plaintiff's grass, the plaintiff had judgment on demurrer. "For
+it appears the fact was voluntary, and his intention and
+knowledge are not traversable; they can't be known."
+
+This language suggests that it would be sufficient to explain the
+law of trespass upon property historically, without attempting to
+justify it. For it seems to be admitted that if the defendant's
+mistake could be proved it might be material. /2/ It will be
+noticed, further, that any general argument from the law of
+trespass upon laud to that governing trespass against the person
+is shown to be misleading by the law as to cattle. The owner is
+bound at his peril [100] to keep them off his neighbor's
+premises, but he is not bound at his peril in all cases to keep
+them from his neighbor's person.
+
+The objections to such a decision as supposed in the case of an
+auctioneer do not rest on the general theory of liability, but
+spring altogether from the special exigencies of commerce. It
+does not become unjust to hold a person liable for unauthorized
+intermeddling with another's property, until there arises the
+practical necessity for rapid dealing. But where this practical
+necessity exists, it is not surprising to find, and we do find, a
+different tendency in the law. The absolute protection of
+property, however natural to a primitive community more occupied
+in production than in exchange, is hardly consistent with the
+requirements of modern business. Even when the rules which we
+have been considering were established, the traffic of the public
+markets was governed by more liberal principles. On the continent
+of Europe it was long ago decided that the policy of protecting
+titles must yield to the policy of protecting trade. Casaregis
+held that the general principle nemo plus juris in alium
+transferre potest quam ipse habet must give way in mercantile
+transactions to possession vaut titre. /1/ In later times, as
+markets overt have lost their importance, the Factors' Acts and
+their successive amendments have tended more and more in the
+direction of adopting the Continental doctrine.
+
+I must preface the argument from precedent with a reference to
+what has been said already in the first Lecture about early forms
+of liability, and especially about [101] the appeals. It was
+there shown that the appeals de pace et plagis and of mayhem
+became the action of trespass, and that those appeals and the
+early actions of trespass were always, so far as appears, for
+intentional wrongs. /1/
+
+The contra pacem in the writ of trespass was no doubt inserted to
+lay a foundation for the king's writ; but there seems to be no
+reason to attribute a similar purpose to vi et armis, or cum vi
+sua, as it was often put. Glanvill says that wounds are within
+the sheriff's jurisdiction, unless the appellor adds a charge of
+breach of the king's peace. /2/ Yet the wounds are given vi et
+armis as much in the one case as in the other. Bracton says that
+the lesser wrongs described by him belong to the king's
+jurisdiction, "because they are sometimes against the peace of
+our lord the king," /3/ while, as has been observed, they were
+supposed to be always committed intentionally. It might even
+perhaps be inferred that the allegation contra pacem was
+originally material, and it will be remembered that trespasses
+formerly involved the liability to pay a fine to the king. /4/
+
+If it be true that trespass was originally confined to
+intentional wrongs, it is hardly necessary to consider the
+argument drawn from the scope of the general issue. In form it
+was a mitigation of the strict denial de verbo in verbum of the
+ancient procedure, to which the inquest given by the king's writ
+was unknown. /5/ The strict form seems to have lasted in England
+some time after the trial of the issue by recognition was
+introduced. /6/ When [102] a recognition was granted, the inquest
+was, of course, only competent to speak to the facts, as has been
+said above. /1/ When the general issue was introduced, trespass
+was still confined to intentional wrongs.
+
+We may now take up the authorities. It will be remembered that
+the earlier precedents are of a date when the assize and jurata
+had not given place to the modern jury. These bodies spoke from
+their own knowledge to an issue defined by the writ, or to
+certain familiar questions of fact arising in the trial of a
+cause, but did not hear the whole case upon evidence adduced.
+Their function was more limited than that which has been gained
+by the jury, and it naturally happened that, when they had
+declared what the defendant had done, the judges laid down the
+standard by which those acts were to be measured without their
+assistance. Hence the question in the Year Books is not a loose
+or general inquiry of the jury whether they think the alleged
+trespasser was negligent on such facts as they may find, but a
+well-defined issue of law, to be determined by the court, whether
+certain acts set forth upon the record are a ground of liability.
+It is possible that the judges may have dealt pretty strictly
+with defendants, and it is quite easy to pass from the premise
+that defendants have been held trespassers for a variety of acts,
+without mention of neglect, to the conclusion that any act by
+which another was damaged will make the actor chargeable. But a
+more exact scrutiny of the early books will show that liability
+in general, then as later, was [103] founded on the opinion of
+the tribunal that the defendant ought to have acted otherwise,
+or, in other words, that he was to blame.
+
+Returning first to the case of the thorns in the Year Book, /1/
+it will be seen that the falling of the thorns into the
+plaintiff's close, although a result not wished by the defendant,
+was in no other sense against his will. When he cut the thorns,
+he did an act which obviously and necessarily would have that
+consequence, and he must be taken to have foreseen and not to
+have prevented it. Choke, C. J. says, "As to what was said about
+their falling in, ipso invito, that is no plea, but he ought to
+show that he could not do it in any other way, or that he did all
+in his power to keep them out"; and both the judges put the
+unlawfulness of the entry upon the plaintiff's land as a
+consequence of the unlawfulness of dropping the thorns there.
+Choke admits that, if the thorns or a tree had been blown over
+upon the plaintiff's land, the defendant might have entered to
+get them. Chief Justice Crew says of this case, in Millen v.
+Fawdry, /2/ that the opinion was that "trespass lies, because he
+did not plead that he did his best endeavor to hinder their
+falling there; yet this was a hard case." The statements of law
+by counsel in argument may be left on one side, although Brian is
+quoted and mistaken for one of the judges by Sir William
+Blackstone, in Scott v. Shepherd.
+
+The principal authorities are the shooting cases, and, as
+shooting is an extra-hazardous act, it would not be surprising
+if it should be held that men do it at their peril in public
+places. The liability has been put on the general ground of
+fault, however, wherever the line of necessary [104] precaution
+may be drawn. In Weaver v. Ward, /1/ the defendant set up that
+the plaintiff and he were skirmishing in a trainband, and that
+when discharging his piece he wounded the plaintiff by accident
+and misfortune, and against his own will. On demurrer, the court
+says that "no man shall be excused of a trespass,... except it
+may be judged utterly without his fault. As if a man by force
+take my hand and strike you, or if here the defendant had said,
+that the plaintiff ran cross his piece when it was discharging,
+or had set forth the case with the circumstances so as it had
+appeared to the court that it had been inevitable, and that the
+defendant had committed no negligence to give occasion to the
+hurt." The later cases simply follow Weaver v. Ward.
+
+The quotations which were made above in favor of the strict
+doctrine from Sir T. Raymond, in Bessey v. Olliot, and from Sir
+William Blackstone, in Scott v. Shepherd, are both taken from
+dissenting opinions. In the latter case it is pretty clear that
+the majority of the court considered that to repel personal
+danger by instantaneously tossing away a squib thrown by another
+upon one's stall was not a trespass, although a new motion was
+thereby imparted to the squib, and the plaintiff's eye was put
+out in consequence. The last case cited above, in stating the
+arguments for absolute responsibility, was Leame v. Bray. /2/ The
+question under discussion was whether the action (for running
+down the plaintiff) should not have been case rather than
+trespass, the defendant founding his objection to trespass on the
+ground that the injury happened through his neglect, but was not
+done wilfully. There was therefore no question of absolute
+responsibility for one's acts [105] before the court, as
+negligence was admitted; and the language used is all directed
+simply to the proposition that the damage need not have been done
+intentionally.
+
+In Wakeman v. Robinson, /1/another runaway case, there was
+evidence that the defendant pulled the wrong rein, and that he
+ought to have kept a straight course. The jury were instructed
+that, if the injury was occasioned by an immediate act of the
+defendant, it was immaterial whether the act was wilful or
+accidental. On motion for a new trial, Dallas, C. J. said, "If
+the accident happened entirely without default on the part of the
+defendant, or blame imputable to him, the action does not lie
+....The accident was clearly occasioned by the default of the
+defendant. The weight of evidence was all that way. I am now
+called upon to grant a new trial, contrary to the justice of the
+case, upon the ground, that the jury were not called on to
+consider whether the accident was unavoidable, or occasioned by
+the fault of the defendant. There can be no doubt that the
+learned judge who presided would have taken the opinion of the
+jury on that ground, if he had been requested so to do." This
+language may have been inapposite under the defendant's plea (the
+general issue), but the pleadings were not adverted to, and the
+doctrine is believed to be sound.
+
+In America there have been several decisions to the point. In
+Brown v. Kendall, /2/ Chief Justice Shaw settled the question for
+Massachusetts. That was trespass for assault and battery, and it
+appeared that the defendant, while trying to separate two
+fighting dogs, had raised his stick over his shoulder in the act
+of striking, and had accidentally hit the plaintiff in the eye,
+inflicting upon him a [106] severe injury. The case was stronger
+for the plaintiff than if the defendant had been acting in
+self-defence; but the court held that, although the defendant was
+bound by no duty to separate the dogs, yet, if he was doing a
+lawful act, he was not liable unless he was wanting in the care
+which men of ordinary prudence would use under the circumstances,
+and that the burden was on the plaintiff to prove the want of
+such care.
+
+In such a matter no authority is more deserving of respect than
+that of Chief Justice Shaw, for the strength of that great judge
+lay in an accurate appreciation of the requirements of the
+community whose officer he was. Some, indeed many, English judges
+could be named who have surpassed him in accurate technical
+knowledge, but few have lived who were his equals in their
+understanding of the grounds of public policy to which all laws
+must ultimately be referred. It was this which made him, in the
+language of the late Judge Curtis, the greatest magistrate which
+this country has produced.
+
+Brown v. Kendall has been followed in Connecticut, /1/ in a case
+where a man fired a pistol, in lawful self-defence as he alleged,
+and hit a bystander. The court was strongly of opinion that the
+defendant was not answerable on the general principles of
+trespass, unless there was a failure to use such care as was
+practicable under the circumstances. The foundation of liability
+in trespass as well as case was said to be negligence. The
+Supreme Court of the United States has given the sanction of its
+approval to the same doctrine. /2/ The language of Harvey v.
+Dunlop /3/ has been [107] quoted, and there is a case in Vermont
+which tends in the same direction. /1/
+
+Supposing it now to be conceded that the general notion upon
+which liability to an action is founded is fault or
+blameworthiness in some sense, the question arises, whether it is
+so in the sense of personal moral shortcoming, as would
+practically result from Austin's teaching. The language of Rede,
+J., which has been quoted from the Year Book, gives a sufficient
+answer. "In trespass the intent" (we may say more broadly, the
+defendant's state of mind) "cannot be construed." Suppose that a
+defendant were allowed to testify that, before acting, he
+considered carefully what would be the conduct of a prudent man
+under the circumstances, and, having formed the best judgment he
+could, acted accordingly. If the story was believed, it would be
+conclusive against the defendant's negligence judged by a moral
+standard which would take his personal characteristics into
+account. But supposing any such evidence to have got before the
+jury, it is very clear that the court would say, Gentlemen, the
+question is not whether the defendant thought his conduct was
+that of a prudent man, but whether you think it was. /2/
+
+Some middle point must be found between the horns of this
+dilemma.
+
+[108 The standards of the law are standards of general
+application. The law takes no account of the infinite varieties
+of temperament, intellect, and education which make the internal
+character of a given act so different in different men. It does
+not attempt to see men as God sees them, for more than one
+sufficient reason. In the first place, the impossibility of
+nicely measuring a man's powers and limitations is far clearer
+than that of ascertaining his knowledge of law, which has been
+thought to account for what is called the presumption that every
+man knows the law. But a more satisfactory explanation is, that,
+when men live in society, a certain average of conduct, a
+sacrifice of individual peculiarities going beyond a certain
+point, is necessary to the general welfare. If, for instance, a
+man is born hasty and awkward, is always having accidents and
+hurting himself or his neighbors, no doubt his congenital defects
+will be allowed for in the courts of Heaven, but his slips are no
+less troublesome to his neighbors than if they sprang from guilty
+neglect. His neighbors accordingly require him, at his proper
+peril, to come up to their standard, and the courts which they
+establish decline to take his personal equation into account.
+
+The rule that the law does, in general, determine liability by
+blameworthiness, is subject to the limitation that minute
+differences of character are not allowed for. The law considers,
+in other words, what would be blameworthy in the average man, the
+man of ordinary intelligence and prudence, and determines
+liability by that. If we fall below the level in those gifts, it
+is our misfortune; so much as that we must have at our peril, for
+the reasons just given. But he who is intelligent and prudent
+does not act at his peril, in theory of law. On the contrary, it
+is [109] only when he fails to exercise the foresight of which he
+is capable, or exercises it with evil intent, that he is
+answerable for the consequences.
+
+There are exceptions to the principle that every man is presumed
+to possess ordinary capacity to avoid harm to his neighbors,
+which illustrate the rule, and also the moral basis of liability
+in general. When a man has a distinct defect of such a nature
+that all can recognize it as making certain precautions
+impossible, he will not be held answerable for not taking them. A
+blind man is not required to see at his peril; and although he
+is, no doubt, bound to consider his infirmity in regulating his
+actions, yet if he properly finds himself in a certain situation,
+the neglect of precautions requiring eyesight would not prevent
+his recovering for an injury to himself, and, it may be presumed,
+would not make him liable for injuring another. So it is held
+that, in cases where he is the plaintiff, an infant of very
+tender years is only bound to take the precautions of which an
+infant is capable; the same principle may be cautiously applied
+where he is defendant. /1/ Insanity is a more difficult matter to
+deal with, and no general rule can be laid down about it. There
+is no doubt that in many cases a man may be insane, and yet
+perfectly capable of taking the precautions, and of being
+influenced by the motives, which the circumstances demand. But if
+insanity of a pronounced type exists, manifestly incapacitating
+the sufferer from complying with the rule which he has broken,
+good sense would require it to be admitted as an excuse.
+
+Taking the qualification last established in connection with the
+general proposition previously laid down, it will [110] now be
+assumed that, on the one hand, the law presumes or requires a man
+to possess ordinary capacity to avoid harming his neighbors,
+unless a clear and manifest incapacity be shown; but that, on the
+other, it does not in general hold him liable for unintentional
+injury, unless, possessing such capacity, he might and ought to
+have foreseen the danger, or, in other words, unless a man of
+ordinary intelligence and forethought would have been to blame
+for acting as he did. The next question is, whether this vague
+test is all that the law has to say upon the matter, and the same
+question in another form, by whom this test is to be applied.
+
+Notwithstanding the fact that the grounds of legal liability are
+moral to the extent above explained, it must be borne in mind
+that law only works within the sphere of the senses. If the
+external phenomena, the manifest acts and omissions, are such as
+it requires, it is wholly indifferent to the internal phenomena
+of conscience. A man may have as bad a heart as he chooses, if
+his conduct is within the rules. In other words, the standards of
+the law are external standards, and, however much it may take
+moral considerations into account, it does so only for the
+purpose of drawing a line between such bodily motions and rests
+as it permits, and such as it does not. What the law really
+forbids, and the only thing it forbids, is the act on the wrong
+side of the line, be that act blameworthy or otherwise.
+
+Again, any legal standard must, in theory, be one which would
+apply to all men, not specially excepted, under the same
+circumstances. It is not intended that the public force should
+fall upon an individual accidentally, or at the whim of any body
+of men. The standard, that is, [111] must be fixed. In practice,
+no doubt, one man may have to pay and another may escape,
+according to the different feelings of different juries. But this
+merely shows that the law does not perfectly accomplish its ends.
+The theory or intention of the law is not that the feeling of
+approbation or blame which a particular twelve may entertain
+should be the criterion. They are supposed to leave their
+idiosyncrasies on one side, and to represent the feeling of the
+community. The ideal average prudent man, whose equivalent the
+jury is taken to be in many cases, and whose culpability or
+innocence is the supposed test, is a constant, and his conduct
+under given circumstances is theoretically always the same.
+
+Finally, any legal standard must, in theory, be capable of being
+known. When a man has to pay damages, he is supposed to have
+broken the law, and he is further supposed to have known what the
+law was.
+
+If, now, the ordinary liabilities in tort arise from failure to
+comply with fixed and uniform standards of external conduct,
+which every man is presumed and required to know, it is obvious
+that it ought to be possible, sooner or later, to formulate these
+standards at least to some extent, and that to do so must at last
+be the business of the court. It is equally clear that the
+featureless generality, that the defendant was bound to use such
+care as a prudent man would do under the circumstances, ought to
+be continually giving place to the specific one, that he was
+bound to use this or that precaution under these or those
+circumstances. The standard which the defendant was bound to come
+up to was a standard of specific acts or omissions, with
+reference to the specific circumstances in which he found
+himself. If in the whole department of [112] unintentional wrongs
+the courts arrived at no further utterance than the question of
+negligence, and left every case, without rudder or compass, to
+the jury, they would simply confess their inability to state a
+very large part of the law which they required the defendant to
+know, and would assert, by implication, that nothing could be
+learned by experience. But neither courts nor legislatures have
+ever stopped at that point.
+
+From the time of Alfred to the present day, statutes and
+decisions have busied themselves with defining the precautions to
+be taken in certain familiar cases; that is, with substituting
+for the vague test of the care exercised by a prudent man, a
+precise one of specific acts or omissions. The fundamental
+thought is still the same, that the way prescribed is that in
+which prudent men are in the habit of acting, or else is one laid
+down for cases where prudent men might otherwise be in doubt.
+
+It will be observed that the existence of the external tests of
+liability which will be mentioned, while it illustrates the
+tendency of the law of tort to become more and more concrete by
+judicial decision and by statute, does not interfere with the
+general doctrine maintained as to the grounds of liability. The
+argument of this Lecture, although opposed to the doctrine that a
+man acts or exerts force at his peril, is by no means opposed to
+the doctrine that he does certain particular acts at his peril.
+It is the coarseness, not the nature, of the standard which is
+objected to. If, when the question of the defendant's negligence
+is left to a jury, negligence does not mean the actual state of
+the defendant's mind, but a failure to act as a prudent man of
+average intelligence would have done, he is required to conform
+to an objective standard at his [113] peril, even in that case.
+When a more exact and specific rule has been arrived at, he must
+obey that rule at his peril to the same extent. But, further, if
+the law is wholly a standard of external conduct, a man must
+always comply with that standard at his peril.
+
+Some examples of the process of specification will be useful. In
+LL. Alfred, 36, /1/ providing for the case of a man's staking
+himself on a spear carried by another, we read, "Let this
+(liability) be if the point be three fingers higher than the
+hindmost part of the shaft; if they be both on a level,... be
+that without danger."
+
+The rule of the road and the sailing rules adopted by Congress
+from England are modern examples of such statutes. By the former
+rule, the question has been narrowed from the vague one, Was the
+party negligent? to the precise one, Was he on the right or left
+of the road? To avoid a possible misconception, it may be
+observed that, of course, this question does not necessarily and
+under all circumstances decide that of liability; a plaintiff may
+have been on the wrong side of the road, as he may have been
+negligent, and yet the conduct of the defendant may have been
+unjustifiable, and a ground of liability. /2/ So, no doubt, a
+defendant could justify or excuse being on the wrong side, under
+some circumstances. The difference between alleging that a
+defendant was on the wrong side of the road, and that he was
+negligent, is the difference between an allegation of facts
+requiring to be excused by a counter allegation of further facts
+to prevent their being a ground of liability, and an allegation
+which involves a conclusion of law, and denies in advance the
+existence of an [114] excuse. Whether the former allegation ought
+not to be enough, and whether the establishment of the fact ought
+not to shift the burden of proof, are questions which belong to
+the theory of pleading and evidence, and could be answered either
+way consistently with analogy. I should have no difficulty in
+saying that the allegation of facts which are ordinarily a ground
+of liability, and which would be so unless excused, ought to be
+sufficient. But the forms of the law, especially the forms of
+pleading, do not change with every change of its substance, and a
+prudent lawyer would use the broader and safer phrase.
+
+The same course of specification which has been illustrated from
+the statute-book ought also to be taking place in the growth of
+judicial decisions. That this should happen is in accordance with
+the past history of the law. It has been suggested already that
+in the days of the assize and jurata the court decided whether
+the facts constituted a ground of liability in all ordinary
+cases. A question of negligence might, no doubt, have gone to the
+jury. Common sense and common knowledge are as often sufficient
+to determine whether proper care has been taken of an animal, as
+they are to say whether A or B owns it. The cases which first
+arose were not of a kind to suggest analysis, and negligence was
+used as a proximately simple element for a long time before the
+need or possibility of analysis was felt. Still, when an issue of
+this sort is found, the dispute is rather what the acts or
+omissions of the defendant were than on the standard of conduct.
+/1/ The [115] distinction between the functions of court and jury
+does not come in question until the parties differ as to the
+standard of conduct. Negligence, like ownership, is a complex
+conception. Just as the latter imports the existence of certain
+facts, and also the consequence (protection against all the
+world) which the law attaches to those facts; the former imports
+the existence of certain facts (conduct) and also the consequence
+(liability) which the law attaches to those facts. In most cases
+the question is upon the facts, and it is only occasionally that
+one arises on the consequence.
+
+It will have been noticed how the judges pass on the defendant's
+acts (on grounds of fault and public policy) in the case of the
+thorns, and that in Weaver v. Ward /1/it is said that the facts
+constituting an excuse, and showing that the defendant was free
+from negligence, should have been spread upon the record, in
+order that the court might judge. A similar requirement was laid
+down with regard to the defence of probable cause in an action
+for malicious prosecution. /2/ And to this day the question of
+probable cause is always passed on by the court. Later evidence
+will be found in what follows.
+
+There is, however, an important consideration, which has not yet
+been adverted to. It is undoubtedly possible that those who have
+the making of the law should deem it wise to put the mark higher
+in some cases than the point established by common practice at
+which blameworthiness begins. For instance, in Morris v. Platt,
+/2/ the court, while declaring in the strongest terms that, in
+general, [116] negligence is the foundation of liability for
+accidental trespasses, nevertheless hints that, if a decision of
+the point were necessary, it might hold a defendant to a stricter
+rule where the damage was caused by a pistol, in view of the
+danger to the public of the growing habit of carrying deadly
+weapons. Again, it might well seem that to enter a man's house
+for the purpose of carrying a present, or inquiring after his
+health when he was ill, was a harmless and rather praiseworthy
+act, although crossing the owner's boundary was intentional. It
+is not supposed that an action would lie at the present day for
+such a cause, unless the defendant had been forbidden the house.
+Yet in the time of Henry VIII. it was said to be actionable if
+without license, "for then under that color my enemy might be in
+my house and kill me." /1/ There is a clear case where public
+policy establishes a standard of overt acts without regard to
+fault in any sense. In like manner, policy established exceptions
+to the general prohibition against entering another's premises,
+as in the instance put by Chief Justice Choke in the Year Book,
+of a tree being blown over upon them, or when the highway became
+impassable, or for the purpose of keeping the peace. /2/
+
+Another example may perhaps be found in the shape which has been
+given in modern times to the liability for animals, and in the
+derivative principle of Rylands v. Fletcher, /3/ that when a
+person brings on his lands, and collects and keeps there,
+anything likely to do mischief if it escapes, he must keep it in
+at his peril; and, if he does not do so, is prima facie
+answerable for all the [117] damage which is the natural
+consequence of its escape. Cases of this sort do not stand on the
+notion that it is wrong to keep cattle, or to have a reservoir of
+water, as might have been thought with more plausibility when
+fierce and useless animals only were in question. /1/ It may even
+be very much for the public good that the dangerous accumulation
+should be made (a consideration which might influence the
+decision in some instances, and differently in different
+jurisdictions); but as there is a limit to the nicety of inquiry
+which is possible in a trial, it may be considered that the
+safest way to secure care is to throw the risk upon the person
+who decides what precautions shall be taken. The liability for
+trespasses of cattle seems to lie on the boundary line between
+rules based on policy irrespective of fault, and requirements
+intended to formulate the conduct of a prudent man.
+
+It has been shown in the first Lecture how this liability for
+cattle arose in the early law, and how far the influence of early
+notions might be traced in the law of today, Subject to what is
+there said, it is evident that the early discussions turn on the
+general consideration whether the owner is or is not to blame.
+/2/ But they do not stop there: they go on to take practical
+distinctions, based on common experience. Thus, when the
+defendant chased sheep out of his land with a dog, and as soon as
+the sheep were out called in his dog, but the dog pursued them
+into adjoining land, the chasing of the sheep beyond the
+defendant's line was held no trespass, because "the nature of a
+dog is such that he cannot be ruled suddenly." /3/
+
+[118] It was lawful in ploughing to turn the horses on adjoining
+land, and if while so turning the beasts took a mouthful of
+grass, or subverted the soil with the plough, against the will of
+the driver, he had a good justification, because the law will
+recognize that a man cannot at every instant govern his cattle as
+he will. /1/ So it was said that, if a man be driving cattle
+through a town, and one of them goes into another man's house,
+and he follows him, trespass does not lie for this. /2/ So it was
+said by Doderidge, J., in the same case, that if deer come into
+my land out of the forest, and I chase them with dogs, it is
+excuse enough for me to wind my horn to recall the dogs, because
+by this the warden of the forest has notice that a deer is being
+chased. /3/
+
+The very case of Mason v. Keeling, /4/ which is referred to in
+the first Lecture for its echo of primitive notions, shows that
+the working rules of the law had long been founded on good sense.
+With regard to animals not then treated as property, which in the
+main were the wilder animals, the law was settled that, "if they
+are of a tame nature, there must be notice of the ill quality;
+and the law takes notice, that a dog is not of a fierce nature,
+but rather the contrary." /5/ If the animals "are such as are
+naturally [119] mischievous in their kind, he shall answer for
+hurt done by them, without any notice." /1/ The latter principle
+has been applied to the case of a bear, /2/ and amply accounts
+for the liability of the owner of such animals as horses and oxen
+in respect of trespasses upon land, although, as has been seen,
+it was at one time thought to stand upon his ownership. It is
+said to be the universal nature of cattle to stray, and, when
+straying in cultivated land, to do damage by trampling down and
+eating the crops, whereas a dog does no harm. It is also said to
+be usual and easy to restrain them. /3/ If, as has been
+suggested, the historical origin of the rule was different, it
+does not matter.
+
+Following the same line of thought, the owner of cattle is not
+held absolutely answerable for all damage which they may do the
+person. According to Lord Holt in the alcove opinion, these
+animals, "which are not so familiar to mankind" as dogs, "the
+owner ought to confine, and take all reasonable caution that they
+do no mischief.... But... if the owner puts a horse or an ox to
+grass in his field, which is adjoining to the highway, and the
+horse or the ox breaks the hedge and runs into the highway, and
+kicks or gores some passenger, an action will not lie against the
+owner; otherwise, if he had notice that they had done such a
+thing before."
+
+[120] Perhaps the most striking authority for the position that
+the judge's duties are not at an end when the question of
+negligence is reached, is shown by the discussions concerning the
+law of bailment. Consider the judgment in Coggs v. Bernard, /1/
+the treatises of Sir William Jones and Story, and the chapter of
+Kent upon the subject. They are so many attempts to state the
+duty of the bailee specifically, according to the nature of the
+bailment and of the object bailed. Those attempts, to be sure,
+were not successful, partly because they were attempts to engraft
+upon the native stock a branch of the Roman law which was too
+large to survive the process, but more especially because the
+distinctions attempted were purely qualitative, and were
+therefore useless when dealing with a jury. /2/ To instruct a
+jury that they must find the defendant guilty of gross negligence
+before he can be charged, is open to the reproach that for such a
+body the word "gross" is only a vituperative epithet. But it
+would not be so with a judge sitting in admiralty without a jury.
+The Roman law and the Supreme Court of the United States agree
+that the word means something. /3/ Successful or not, it is
+enough for the present argument that the attempt has been made.
+
+The principles of substantive law which have been established by
+the courts are believed to have been somewhat obscured by having
+presented themselves oftenest in the form of rulings upon the
+sufficiency of evidence. When a judge rules that there is no
+evidence of negligence, he does something more than is embraced
+in an ordinary ruling that there is no evidence of a fact. He
+rules that [121] acts or omissions proved or in question do not
+constitute a ground of legal liability, and in this way the law
+is gradually enriching itself from daily life, as it should.
+Thus, in Crafton v. Metropolitan Railway Co., /1/ the plaintiff
+slipped on the defendant's stairs and was severely hurt. The
+cause of his slipping was that the brass nosing of the stairs had
+been worn smooth by travel over it, and a builder testified that
+in his opinion the staircase was unsafe by reason of this
+circumstance and the absence of a hand-rail. There was nothing to
+contradict this except that great numbers of persons had passed
+over the stairs and that no accident had happened there, and the
+plaintiff had a verdict. The court set the verdict aside, and
+ordered a nonsuit. The ruling was in form that there was no
+evidence of negligence to go to the jury; but this was obviously
+equivalent to saying, and did in fact mean, that the railroad
+company had done all that it was bound to do in maintaining such
+a staircase as was proved by the plaintiff. A hundred other
+equally concrete instances will be found in the text-books.
+
+On the other hand, if the court should rule that certain acts or
+omissions coupled with damage were conclusive evidence of
+negligence unless explained, it would, in substance and in truth,
+rule that such acts or omissions were a ground of liability, /2/
+or prevented a recovery, as the case might be. Thus it is said to
+be actionable negligence to let a house for a dwelling knowing it
+to be so infected with small-pox as to be dangerous to health,
+and concealing the knowledge. /3/ To explain the acts or
+omissions in such a [122] case would be to prove different
+conduct from that ruled upon, or to show that they were not,
+juridically speaking, the cause of the damage complained of. The
+ruling assumes, for the purposes of the ruling, that the facts in
+evidence are all the facts.
+
+The cases which have raised difficulties needing explanation are
+those in which the court has ruled that there was prima facie
+evidence of negligence, or some evidence of negligence to go to
+the jury.
+
+Many have noticed the confusion of thought implied in speaking of
+such cases as presenting mixed questions of law and fact. No
+doubt, as has been said above, the averment that the defendant
+has been guilty of negligence is a complex one: first, that he
+has done or omitted certain things; second, that his alleged
+conduct does not come up to the legal standard. And so long as
+the controversy is simply on the first half, the whole complex
+averment is plain matter for the jury without special
+instructions, just as a question of ownership would be where the
+only dispute was as to the fact upon which the legal conclusion
+was founded. /1/ But when a controversy arises on the second
+half, the question whether the court or the jury ought to judge
+of the defendant's conduct is wholly unaffected by the accident,
+whether there is or is not also a dispute as to what that conduct
+was. If there is such a dispute, it is entirely possible to give
+a series of hypothetical instructions adapted to every state of
+facts which it is open to the jury to find. If there is no such
+dispute, the court may still take their opinion as to the
+standard. The problem is [123] to explain the relative functions
+of court and jury with regard to the latter.
+
+When a case arises in which the standard of conduct, pure and
+simple, is submitted to the jury, the explanation is plain. It is
+that the court, not entertaining any clear views of public policy
+applicable to the matter, derives the rule to be applied from
+daily experience, as it has been agreed that the great body of
+the law of tort has been derived. But the court further feels
+that it is not itself possessed of sufficient practical
+experience to lay down the rule intelligently. It conceives that
+twelve men taken from the practical part of the community can aid
+its judgment. /1/ Therefore it aids its conscience by taking the
+opinion of the jury.
+
+But supposing a state of facts often repeated in practice, is it
+to be imagined that the court is to go on leaving the standard to
+the jury forever? Is it not manifest, on the contrary, that if
+the jury is, on the whole, as fair a tribunal as it is
+represented to be, the lesson which can be got from that source
+will be learned? Either the court will find that the fair
+teaching of experience is that the conduct complained of usually
+is or is not blameworthy, and therefore, unless explained, is or
+is not a ground of liability; or it will find the jury
+oscillating to and fro, and will see the necessity of making up
+its mind for itself. There is no reason why any other such
+question should not be settled, as well as that of liability for
+stairs with smooth strips of brass upon their edges. The
+exceptions would mainly be found where the standard was rapidly
+changing, as, for instance, in some questions of medical
+treatment. /2/
+
+[124] If this be the proper conclusion in plain cases, further
+consequences ensue. Facts do not often exactly repeat themselves
+in practice; but cases with comparatively small variations from
+each other do. A judge who has long sat at nisi prius ought
+gradually to acquire a fund of experience which enables him to
+represent the common sense of the community in ordinary instances
+far better than an average jury. He should be able to lead and to
+instruct them in detail, even where he thinks it desirable, on
+the whole, to take their opinion. Furthermore, the sphere in
+which he is able to rule without taking their opinion at all
+should be continually growing.
+
+It has often been said, that negligence is pure matter of fact,
+or that, after the court has declared the evidence to be such
+that negligence may be inferred from it, the jury are always to
+decide whether the inference shall be drawn. /1/ But it is
+believed that the courts, when they lay down this broad
+proposition, are thinking of cases where the conduct to be passed
+upon is not proved directly, and the main or only question is
+what that conduct was, not what standard shall be applied to it
+after it is established.
+
+Most cases which go to the jury on a ruling that there is
+evidence from which they may find negligence, do not go to them
+principally on account of a doubt as to the standard, but of a
+doubt as to the conduct. Take the case where the fact in proof is
+an event such as the dropping of a brick from a railway bridge
+over a highway upon the plaintiff, the fact must be inferred that
+the dropping was [125] due, not to a sudden operation of weather,
+but to a gradual falling out of repair which it was physically
+possible for the defendant to have prevented, before there can be
+any question as to the standard of conduct. /1/
+
+So, in the case of a barrel falling from a warehouse window, it
+must be found that the defendant or his servants were in charge
+of it, before any question of standard can arise. /2/ It will be
+seen that in each of these well-known cases the court assumed a
+rule which would make the defendant liable if his conduct was
+such as the evidence tended to prove. When there is no question
+as to the conduct established by the evidence, as in the case of
+a collision between two trains belonging to the same company, the
+jury have, sometimes at least, been told in effect that, if they
+believed the evidence, the defendant was liable. /3/
+
+The principal argument that is urged in favor of the view that a
+more extended function belongs to the jury as matter of right, is
+the necessity of continually conforming our standards to
+experience. No doubt the general foundation of legal liability in
+blameworthiness, as determined by the existing average standards
+of the community, should always be kept in mind, for the purpose
+of keeping such concrete rules as from time to time may be laid
+down conformable to daily life. No doubt this conformity is the
+practical justification for requiring a man to know the civil
+law, as the fact that crimes are also generally sins is one of
+the practical justifications for requiring a man to know the
+criminal law. But these considerations only lead to [126] the
+conclusion that precedents should be overruled when they become
+inconsistent with present conditions; and this has generally
+happened, except with regard to the construction of deeds and
+wills. On the other hand, it is very desirable to know as nearly
+as we can the standard by which we shall be judged at a given
+moment, and, moreover, the standards for a very large part of
+human conduct do not vary from century to century.
+
+The considerations urged in this Lecture are of peculiar
+importance in this country, or at least in States where the law
+is as it stands in Massachusetts. In England, the judges at nisi
+prius express their opinions freely on the value and weight of
+the evidence, and the judges in banc, by consent of parties,
+constantly draw inferences of fact. Hence nice distinctions as to
+the province of court and jury are not of the first necessity.
+But when judges are forbidden by statute to charge the jury with
+respect to matters of fact, and when the court in banc will never
+hear a case calling for inferences of fact, it becomes of vital
+importance to understand that, when standards of conduct are left
+to the jury, it is a temporary surrender of a judicial function
+which may be resumed at any moment in any case when the court
+feels competent to do so. Were this not so, the almost universal
+acceptance of the first proposition in this Lecture, that the
+general foundation of liability for unintentional wrongs is
+conduct different from that of a prudent man under the
+circumstances, would leave all our rights and duties throughout a
+great part of the law to the necessarily more or less accidental
+feelings of a jury.
+
+It is perfectly consistent with the views maintained in this
+Lecture that the courts have been very slow to withdraw questions
+of negligence from the jury, without distinguishing [127] nicely
+whether the doubt concerned the facts or the standard to be
+applied. Legal, like natural divisions, however clear in their
+general outline, will be found on exact scrutiny to end in a
+penumbra or debatable land. This is the region of the jury, and
+only cases falling on this doubtful border are likely to be
+carried far in court. Still, the tendency of the law must always
+be to narrow the field of uncertainty. That is what analogy, as
+well as the decisions on this very subject, would lead us to
+expect.
+
+The growth of the law is very apt to take place in this way. Two
+widely different cases suggest a general distinction, which is a
+clear one when stated broadly. But as new eases cluster around
+the opposite poles, and begin to approach each other, the
+distinction becomes more difficult to trace; the determinations
+are made one way or the other on a very slight preponderance of
+feeling, rather than of articulate reason; and at last a
+mathematical line is arrived at by the contact of contrary
+decisions, which is so far arbitrary that it might equally well
+have been drawn a little farther to the one side or to the other,
+but which must have been drawn somewhere in the neighborhood of
+where it falls. /1/
+
+In this way exact distinctions have been worked out upon
+questions in which the elements to be considered are few. For
+instance, what is a reasonable time for presenting negotiable
+paper, or what is a difference in kind and what a difference only
+in quality, or the rule against perpetuities.
+
+An example of the approach of decisions towards each other from
+the opposite poles, and of the function of the jury midway, is to
+be found in the Massachusetts adjudications, [128] that, if a
+child of two years and four months is unnecessarily sent
+unattended across and down a street in a large city, he cannot
+recover for a negligent injury; /1/ that to allow a boy of eight
+to be abroad alone is not necessarily negligent; /2/ and that the
+effect of permitting a boy of ten to be abroad after dark is for
+the jury; /3/ a coupled with the statement, which may be ventured
+on without authority, that such a permission to a young man of
+twenty possessed of common intelligence has no effect whatever.
+
+Take again the law of ancient lights in England. An obstruction
+to be actionable must be substantial. Under ordinary
+circumstances the erection of a structure a hundred yards off,
+and one foot above the ground, would not be actionable. One
+within a foot of the window, and covering it, would be, without
+any finding of a jury beyond these facts. In doubtful cases
+midway, the question whether the interference was substantial has
+been left to the jury. /4/ But as the elements are few and
+permanent, an inclination has been shown to lay down a definite
+rule, that, in ordinary cases, the building complained of must
+not be higher than the distance of its base from the dominant
+windows. And although this attempt to work out an exact line
+requires much caution, it is entirely philosophical in spirit.
+/5/
+
+The same principle applies to negligence. If the whole evidence
+in the case was that a party, in full command of [129] senses and
+intellect, stood on a railway track, looking at an approaching
+engine until it ran him down, no judge would leave it to the jury
+to say whether the conduct was prudent. If the whole evidence was
+that he attempted to cross a level track, which was visible for
+half a mile each way, and on which no engine was in sight, no
+court would allow a jury to find negligence. Between these
+extremes are cases which would go to the jury. But it is obvious
+that the limit of safety in such cases, supposing no further
+elements present, could be determined to a foot by mathematical
+calculation.
+
+The trouble with many cases of negligence is, that they are of a
+kind not frequently recurring, so as to enable any given judge to
+profit by long experience with juries to lay down rules, and that
+the elements are so complex that courts are glad to leave the
+whole matter in a lump for the jury's determination.
+
+I reserve the relation between negligent and other torts for the
+next Lecture.
+
+
+
+
+LECTURE IV. -- FRAUD, MALICE, AND INTENT.--THE THEORY OF TORTS.
+
+[130] The next subjects to be considered are fraud, malice, and
+intent. In the discussion of unintentional wrongs, the greatest
+difficulty to be overcome was found to be the doctrine that a man
+acts always at his peril. In what follows, on the other hand, the
+difficulty will be to prove that actual wickedness of the kind
+described by the several words just mentioned is not an element
+in the civil wrongs to which those words are applied.
+
+It has been shown, in dealing with the criminal law, that, when
+we call an act malicious in common speech, we mean that harm to
+another person was intended to come of it, and that such harm was
+desired for its own sake as an end in itself. For the purposes of
+the criminal law, however, intent alone was found to be
+important, and to have the same consequences as intent with
+malevolence superadded. Pursuing the analysis, intent was found
+to be made up of foresight of the harm as a consequence, coupled
+with a desire to bring it about, the latter being conceived as
+the motive for the act in question. Of these, again, foresight
+only seemed material. As a last step, foresight was reduced to
+its lowest term, and it was concluded that, subject to exceptions
+which were explained, the general basis of criminal liability was
+knowledge, at the time of action, [131] of facts from which
+common experience showed that certain harmful results were likely
+to follow.
+
+It remains to be seen whether a similar reduction is possible on
+the civil side of the law, and whether thus fraudulent,
+malicious, intentional, and negligent wrongs can be brought into
+a philosophically continuous series.
+
+A word of preliminary explanation will be useful. It has been
+shown in the Lecture just referred to that an act, although
+always importing intent, is per se indifferent to the law. It is
+a willed, and therefore an intended coordination of muscular
+contractions. But the intent necessarily imported by the act ends
+there. And all muscular motions or co-ordinations of them are
+harmless apart from concomitant circumstances, the presence of
+which is not necessarily implied by the act itself. To strike out
+with the fist is the same act, whether done in a desert or in a
+crowd.
+
+The same considerations which have been urged to show that an act
+alone, by itself, does not and ought not to impose either civil
+or criminal liability, apply, at least frequently, to a series of
+acts, or to conduct, although the series shows a further
+co-ordination and a further intent. For instance, it is the same
+series of acts to utter a sentence falsely stating that a certain
+barrel contains No. 1 Mackerel, whether the sentence is uttered
+in the secrecy of the closet, or to another man in the course of
+a bargain. There is, to be sure, in either case, the further
+intent, beyond the co-ordination of muscles for a single sound,
+to allege that a certain barrel has certain contents,--an intent
+necessarily shown by the ordering of the words. But both the
+series of acts and the intent are per se indifferent. They are
+innocent when spoken in solitude, and [132] are only a ground of
+liability when certain concomitant circumstances are shown.
+
+The intent which is meant when spoken of as an element of legal
+liability is an intent directed toward the harm complained of, or
+at least toward harm. It is not necessary in every case to carry
+the analysis back to the simple muscular contractions out of
+which a course of conduct is made up. On the same principle that
+requires something more than an act followed by damage to make a
+man liable, we constantly find ourselves at liberty to assume a
+co-ordinated series of acts as a proximately simple element, per
+se indifferent, in considering what further circumstances or
+facts must be present before the conduct in question is at the
+actor's peril. It will save confusion and the need of repetition
+if this is borne in mind in the following discussion.
+
+The chief forms of liability in which fraud, malice, and intent
+are said to be necessary elements, are deceit, slander and libel,
+malicious prosecution, and conspiracy, to which, perhaps, may be
+added trover.
+
+Deceit is a notion drawn from the moral world, and in its popular
+sense distinctly imports wickedness. The doctrine of the common
+law with regard to it is generally stated in terms which are only
+consistent with actual guilt, and all actual guilty intent. It is
+said that a man is liable to an action for deceit if he makes a
+false representation to another, knowing it to be false, but
+intending that the other should believe and act upon it, if the
+person addressed believes it, and is thereby persuaded to act to
+his own harm. This is no doubt the typical case, and it is a case
+of intentional moral wrong. Now, what is the party's conduct
+here. It consists in uttering certain words, [133] so ordered
+that the utterance of them imports a knowledge of the meaning
+which they would convey if heard. But that conduct with only that
+knowledge is neither moral nor immoral. Go one step further, and
+add the knowledge of another's presence within hearing, still the
+act has no determinate character. The elements which make it
+immoral are the knowledge that the statement is false, and the
+intent that it shall be acted on.
+
+The principal question then is, whether this intent can be
+reduced to the same terms as it has been in other cases. There is
+no difficulty in the answer. It is perfectly clear that the
+intent that a false representation should be acted on would be
+conclusively established by proof that the defendant knew that
+the other party intended to act upon it. If the defendant foresaw
+the consequence of his acts, he is chargeable, whether his motive
+was a desire to induce the other party to act, or simply an
+unwillingness for private reasons to state the truth. If the
+defendant knew a present fact (the other party's intent), which,
+according to common experience, made it likely that his act would
+have the harmful consequence, he is chargeable, whether he in
+fact foresaw the consequence or not.
+
+In this matter the general conclusion follows from a single
+instance. For the moment it is admitted that in one case
+knowledge of a present fact, such as the other party's intent to
+act on the false statement, dispenses with proof of an intent to
+induce him to act upon it, it is admitted that the lesser element
+is all that is necessary in the larger compound. For intent
+embraces knowledge sufficing for foresight, as has been shown.
+Hence, when you prove intent you prove knowledge, and intent may
+often [134] be the easier to prove of the two. But when you prove
+knowledge you do not prove intent.
+
+It may be said, however, that intent is implied or presumed in
+such a case as has been supposed. But this is only helping out a
+false theory by a fiction. It is very much like saying that a
+consideration is presumed for an instrument under seal; which is
+merely a way of reconciling the formal theory that all contracts
+must have a consideration with the manifest fact that sealed
+instruments do not require one. Whenever it is said that a
+certain thing is essential to liability, but that it is
+conclusively presumed from something else, there is always ground
+for suspicion that the essential clement is to be found in that
+something else, and not in what is said to be presumed from it.
+
+With regard to the intent necessary to deceit, we need not stop
+with the single instance which has been given. The law goes no
+farther than to require proof either of the intent, or that the
+other party was justified in inferring such intention. So that
+the whole meaning of the requirement is, that the natural and
+manifest tendency of the representation, under the known
+circumstances, must have been to induce the opinion that it was
+made with a view to action, and so to induce action on the faith
+of it. The standard of what is called intent is thus really an
+external standard of conduct under the known circumstances, and
+the analysis of the criminal law holds good here.
+
+Nor is this all. The law pursuing its course of specification, as
+explained in the last Lecture, decides what is the tendency of
+representations in certain cases,--as, for instance, that a horse
+is sound at the time of making a [135] sale; or, in general, of
+any statement of fact which it is known the other party intends
+to rely on. Beyond these scientific rules lies the vague realm of
+the jury.
+
+The other moral element in deceit is knowledge that the statement
+was false. With this I am not strictly concerned, because all
+that is necessary is accomplished when the elements of risk are
+reduced to action and knowledge. But it will aid in the general
+object of showing that the tendency of the law everywhere is to
+transcend moral and reach external standards, if this knowledge
+of falsehood can be transmuted into a formula not necessarily
+importing guilt, although, of course, generally accompanied by it
+in fact. The moment we look critically at it, we find the moral
+side shade away.
+
+The question is, what known circumstances are enough throw the
+risk of a statement upon him who makes it, if it induces another
+man to act, and it turns out untrue. Now, it is evident that a
+man may take the risk of his statement by express agreement, or
+by an implied one which the law reads into his bargain. He may in
+legal language warrant the truth of it, and if it is not true,
+the law treats it as a fraud, just as much when he makes it fully
+believing it, as when he knows that it is untrue, and means to
+deceive. If, in selling a horse, the seller warranted him to be
+only five years old, and in fact he was thirteen, the seller
+could be sued for a deceit at common law, although he thought the
+horse was only five. /1/ The common-law liability for the truth
+of statements is, therefore, more extensive than the sphere of
+actual moral fraud. But, again, it is enough in general if a
+representation [136] is made recklessly, without knowing whether
+it is true or false. Now what does "recklessly" mean. It does not
+mean actual personal indifference to the truth of the statement.
+It means only that the data for the statement were so far
+insufficient that a prudent man could not have made it without
+leading to the inference that he was indifferent. That is to say,
+repeating an analysis which has been gone through with before, it
+means that the law, applying a general objective standard,
+determines that, if a man makes his statement on those data, he
+is liable, whatever was the state of his mind, and although he
+individually may have been perfectly free from wickedness in
+making it.
+
+Hence similar reasoning to that which has been applied already to
+intent may be applied to knowledge of falsity. Actual knowledge
+may often be easier to prove than that the evidence was
+insufficient to warrant the statement, and when proved it
+contains the lesser element. But as soon as the lesser element is
+shown to be enough, it is shown that the law is ready to apply an
+external or objective standard here also.
+
+Courts of equity have laid down the doctrine in terms which are
+so wholly irrespective of the actual moral condition of the
+defendant as to go to an opposite extreme. It is said that "when
+a representation in a matter of business is made by one man to
+another calculated to induce him to adapt his conduct to it, it
+is perfectly immaterial whether the representation is made
+knowing it to be untrue, or whether it is made believing it to be
+true, if, in fact, it was untrue." /1/
+
+Perhaps the actual decisions could be reconciled on a [137]
+narrower principle, but the rule just stated goes the length of
+saying that in business matters a man makes every statement (of a
+kind likely to be acted on) at his peril. This seems hardly
+justifiable in policy. The moral starting point of liability in
+general should never be forgotten, and the law cannot without
+disregarding it hold a man answerable for statements based on
+facts which would have convinced a wise and prudent man of their
+truth. The public advantage and necessity of freedom in imparting
+information, which privileges even the slander of a third person,
+ought a fortiori, it seems to me, to privilege statements made at
+the request of the party who complains of them.
+
+The common law, at any rate, preserves the reference to morality
+by making fraud the ground on which it goes. It does not hold
+that a man always speaks at his peril. But starting from the
+moral ground, it works out an external standard of what would be
+fraudulent in the average prudent member of the community, and
+requires every member at his peril to avoid that. As in other
+cases, it is gradually accumulating precedents which decide that
+certain statements under certain circumstances are at the peril
+of the party who makes them.
+
+The elements of deceit which throw the risk of his conduct upon a
+party are these. First, making a statement of facts purporting to
+be serious. Second, the known presence of another within hearing.
+Third, known facts sufficient to warrant the expectation or
+suggest the probability that the other party will act on the
+statement. (What facts are sufficient has been specifically
+determined by the courts in some instances; in others, no doubt,
+the question would go to the jury on the principles heretofore
+explained.) Fourth, the [138] falsehood of the statement. This
+must be known, or else the known evidence concerning the matter
+of the statement must be such as would not warrant belief
+according to the ordinary course of human experience. (On this
+point also the court may be found to lay down specific rules in
+some cases. /1/)
+
+I next take up the law of slander. It has often been said that
+malice is one of the elements of liability, and the doctrine is
+commonly stated in this way: that malice must exist, but that it
+is presumed by law from the mere speaking of the words; that
+again you may rebut this presumption of malice by showing that
+the words were spoken under circumstances which made the
+communication privileged,--as, for instance, by a lawyer in the
+necessary course of his argument, or by a person answering in
+good faith to inquiries as to the character of a former servant,--
+and then, it is said, the plaintiff may meet this defence in some
+cases by showing that the words were spoken with actual malice.
+
+All this sounds as if at least actual intent to cause the damage
+complained of, if not malevolence, were at the bottom of this
+class of wrongs. Yet it is not so. For although the use of the
+phrase "malice" points as usual to an original moral standard,
+the rule that it is presumed upon proof of speaking certain words
+is equivalent to saying that the overt conduct of speaking those
+words may be actionable whether the consequence of damage to the
+plaintiff was intended or not. And this fails in with the general
+theory, because the manifest tendency of slanderous words is to
+harm the person of whom they are spoken. Again, the real
+substance of the defence is not that the damage [139] was not
+intended,--that would be no defence at all; but that, whether
+it was intended or not,--that is, even if the defendant foresaw
+it and foresaw it with pleasure,--the manifest facts and
+circumstances under which he said it were such that the law
+considered the damage to the plaintiff of less importance than
+the benefit of free speaking.
+
+It is more difficult to apply the same analysis to the last stage
+of the process, but perhaps it is not impossible. It is said that
+the plaintiff may meet a case of privilege thus made out on the
+part of the defendant, by proving actual malice, that is, actual
+intent to cause the damage complained of. But how is this actual
+malice made out? It is by showing that the defendant knew the
+statement which he made was false, or that his untrue statements
+were grossly in excess of what the occasion required. Now is it
+not very evident that the law is looking to a wholly different
+matter from the defendant's intent? The fact that the defendant
+foresaw and foresaw with pleasure the damage to the plaintiff, is
+of no more importance in this case than it would be where the
+communication was privileged. The question again is wholly a
+question of knowledge, or other external standard. And what makes
+even knowledge important? It is that the reason for which a man
+is allowed in the other instances to make false charges against
+his neighbors is wanting. It is for the public interest that
+people should be free to give the best information they can under
+certain circumstances without fear, but there is no public
+benefit in having lies told at any time; and when a charge is
+known to be false, or is in excess of what is required by the
+occasion, it is not necessary to make that charge in order to
+speak freely, and [140] therefore it falls under the ordinary
+rule, that certain charges are made at the party's peril in case
+they turn out to be false, whether evil consequences were
+intended or not. The defendant is liable, not because his intent
+was evil, but because he made false charges without excuse.
+
+It will be seen that the peril of conduct here begins farther
+back than with deceit, as the tendency of slander is more
+universally harmful. There must be some concomitant
+circumstances. There must at least be a human being in existence
+whom the statement designates. There must be another human being
+within hearing who understands the statement, and the statement
+must be false. But it is arguable that the latter of these facts
+need not be known, as certainly the falsity of the charge need
+not be, and that a man must take the risk of even an idle
+statement being heard, unless he made it under known
+circumstances of privilege. It would be no great curtailment of
+freedom to deny a man immunity in attaching a charge of crime to
+the name of his neighbor, even when he supposes himself alone.
+But it does not seem clear that the law would go quite so far as
+that.
+
+The next form of liability is comparatively insignificant. I mean
+the action for malicious prosecution. A man may recover damages
+against another for maliciously and without probable cause
+instituting a criminal, or, in some cases, a civil prosecution
+against him upon a false charge. The want of probable cause
+refers, of course, only to the state of the defendant's
+knowledge, not to his intent. It means the absence of probable
+cause in the facts known to the defendant when he instituted the
+suit. But the standard applied to the defendant's consciousness
+is external to it. The question is not whether he thought the
+[141] facts to constitute probable cause, but whether the court
+thinks they did.
+
+Then as to malice. The conduct of the defendant consists in
+instituting proceedings on a charge which is in fact false, and
+which has not prevailed. That is the root of the whole matter. If
+the charge was true, or if the plaintiff has been convicted, even
+though he may be able now to prove that he was wrongly convicted,
+the defendant is safe, however great his malice, and however
+little ground he had for his charge.
+
+Suppose, however, that the charge is false, and does not prevail.
+It may readily be admitted that malice did originally mean a
+malevolent motive, an actual intent to harm the plaintiff by
+making a false charge. The legal remedy here, again, started from
+the moral basis, the occasion for it, no doubt, being similar to
+that which gave rise to the old law of conspiracy, that a man's
+enemies would sometimes seek his destruction by setting the
+criminal law in motion against him. As it was punishable to
+combine for such a purpose, it was concluded, with some
+hesitation, that, when a single individual wickedly attempted the
+same thing, he should be liable on similar grounds. /1/ I must
+fully admit that there is weighty authority to the effect that
+malice in its ordinary sense is to this day a distinct fact to be
+proved and to be found by the jury.
+
+But this view cannot be accepted without hesitation. It is
+admitted that, on the one side, the existence of probable cause,
+believed in, is a justification notwithstanding malice; /2/ that,
+on the other, "it is not enough to show [142] that the case
+appeared sufficient to this particular party, but it must be
+sufficient to induce a sober, sensible and discreet person to act
+upon it, or it must fail as a justification for the proceeding
+upon general grounds." /1/ On the one side, malice alone will not
+make a man liable for instituting a groundless prosecution; on
+the other, his justification will depend, not on his opinion of
+the facts, but on that of the court. When his actual moral
+condition is disregarded to this extent, it is a little hard to
+believe that the existence of an improper motive should be
+material. Yet that is what malice must mean in this case, if it
+means anything. /2/ For the evil effects of a successful
+indictment are of course intended by one who procures all other
+to be indicted. I cannot but think that a jury would be told that
+knowledge or belief that the charge was false at the time of
+making it was conclusive evidence of malice. And if so, on
+grounds which need not be repeated, malice is not the important
+thing, but the facts known to the defendant.
+
+Nevertheless, as it is obviously treading on delicate ground to
+make it actionable to set the regular processes of the law in
+motion, it is, of course, entirely possible to say that the
+action shall be limited to those cases where the charge was
+preferred from improper motives, at least if the defendant
+thought that there was probable cause. Such a limitation would
+stand almost alone in the law of civil liability. But the nature
+of the wrong is peculiar, and, moreover, it is quite consistent
+with the theory of liability here advanced that it should be
+confined in any given instance to actual wrong-doing in a moral
+sense.
+
+The only other cause of action in which the moral condition [143]
+of the defendant's consciousness might seem to be important is
+conspiracy. The old action going by that name was much like
+malicious prosecution, and no doubt was originally confined to
+cases where several persons had conspired to indict another from
+malevolent motives. But in the modern action on the case, where
+conspiracy is charged, the allegation as a rule only means that
+two or more persons were so far co-operating in their acts that
+the act of any one was the act of all. Generally speaking, the
+liability depends not on the co-operation or conspiring, but on
+the character of the acts done, supposing them all to be done by
+one man, or irrespective of the question whether they were done
+by one or several. There may be cases, to be sure, in which the
+result could not be accomplished, or the offence could not
+ordinarily be proved, without a combination of several; as, for
+instance, the removal of a teacher by a school board. The
+conspiracy would not affect the case except in a practical way,
+but the question would be raised whether, notwithstanding the
+right of the board to remove, proof that they were actuated by
+malevolence would not make a removal actionable. Policy, it might
+be said, forbids going behind their judgment, but actual evil
+motives coupled with the absence of grounds withdraw this
+protection, because policy, although it does not require them to
+take the risk of being right, does require that they should judge
+honestly on the merits. /1/
+
+Other isolated instances like the last might, perhaps, be found
+in different parts of the law, in which actual malevolence would
+affect a man's liability for his conduct. Again, in trover for
+the conversion of another's chattel, where the dominion exercised
+over it was of a slight and ambiguous [144] nature, it has been
+said that the taking must be "with the intent of exercising an
+ownership over the chattel inconsistent with the real owner's
+right of possession." /1/ But this seems to be no more than a
+faint shadow of the doctrine explained with regard to larceny,
+and does not require any further or special discussion. Trover is
+commonly understood to go, like larceny, on the plaintiff's being
+deprived of his property, although in practice every possessor
+has the action, and, generally speaking, the shortest wrongful
+withholding of possession is a conversion.
+
+Be the exceptions more or less numerous, the general purpose of
+the law of torts is to secure a man indemnity against certain
+forms of harm to person, reputation, or estate, at the hands of
+his neighbors, not because they are wrong, but because they are
+harms. The true explanation of the reference of liability to a
+moral standard, in the sense which has been explained, is not
+that it is for the purpose of improving men's hearts, but that it
+is to give a man a fair chance to avoid doing the harm before he
+is held responsible for it. It is intended to reconcile the
+policy of letting accidents lie where they fall, and the
+reasonable freedom of others with the protection of the
+individual from injury.
+
+But the law does not even seek to indemnify a man from all harms.
+An unrestricted enjoyment of all his possibilities would
+interfere with other equally important enjoyments on the part of
+his neighbors. There are certain things which the law allows a
+man to do, notwithstanding the fact that he foresees that harm to
+another will follow from them. He may charge a man with crime if
+the charge is true. He may establish himself in business where he
+foresees that [145] of his competition will be to diminish the
+custom of another shopkeeper, perhaps to ruin him. He may a
+building which cuts another off from a beautiful prospect, or he
+may drain subterranean waters and thereby drain another's well;
+and many other cases might be put.
+
+As any of these things may be done with foresight of their evil
+consequences, it would seem that they might be done with intent,
+and even with malevolent intent, to produce them. The whole
+argument of this Lecture and the preceding tends to this
+conclusion. If the aim of liability is simply to prevent or
+indemnify from harm so far as is consistent with avoiding the
+extreme of making a man answer for accident, when the law permits
+the harm to be knowingly inflicted it would be a strong thing if
+the presence of malice made any difference in its decisions. That
+might happen, to be sure, without affecting the general views
+maintained here, but it is not to be expected, and the weight of
+authority is against it.
+
+As the law, on the one hand, allows certain harms to be inflicted
+irrespective of the moral condition of him who inflicts them, so,
+at the other extreme, it may on grounds of policy throw the
+absolute risk of certain transactions on the person engaging in
+them, irrespective of blameworthiness in any sense. Instances of
+this sort have been mentioned in the last Lecture, /1/ and will
+be referred to again.
+
+Most liabilities in tort lie between these two extremes, and are
+founded on the infliction of harm which the defendant had a
+reasonable opportunity to avoid at the time of the acts or
+omissions which were its proximate cause. Rut as fast as specific
+rules are worked out in place of the [146] vague reference to the
+conduct of the average man, they range themselves alongside of
+other specific rules based on public policy, and the grounds from
+which they spring cease to be manifest. So that, as will be seen
+directly, rules which seem to lie outside of culpability in any
+sense have sometimes been referred to remote fault, while others
+which started from the general notion of negligence may with
+equal ease be referred to some extrinsic ground of policy.
+
+Apart from the extremes just mentioned, it is now easy to see how
+the point at which a man's conduct begins to be at his own peril
+is generally fixed. When the principle is understood on which
+that point is determined by the law of torts, we possess a common
+ground of classification, and a key to the whole subject, so far
+as tradition has not swerved the law from a consistent theory. It
+has been made pretty clear from what precedes, that I find that
+ground in knowledge of circumstances accompanying an act or
+conduct indifferent but for those circumstances.
+
+But it is worth remarking, before that criterion is discussed,
+that a possible common ground is reached at the preceding step in
+the descent from malice through intent and foresight. Foresight
+is a possible common denominator of wrongs at the two extremes of
+malice and negligence. The purpose of the law is to prevent or
+secure a man indemnity from harm at the hands of his neighbors,
+so far as consistent with other considerations which have been
+mentioned, and excepting, of course, such harm as it permits to
+be intentionally inflicted. When a man foresees that harm will
+result from his conduct, the principle which exonerates him from
+accident no longer applies, and he is liable. But, as has been
+shown, he is bound to foresee [147] whatever a prudent and
+intelligent man would have foreseen, and therefore he is liable
+for conduct from which such a man would have foreseen that harm
+was liable to follow.
+
+Accordingly, it would be possible to state all cases of
+negligence in terms of imputed or presumed foresight. It would be
+possible even to press the presumption further, applying the very
+inaccurate maxim, that every man is presumed to intend the
+natural consequences of his own acts; and this mode of expression
+will, in fact, be found to have been occasionally used, /1/ more
+especially in the criminal law, where the notion of intent has a
+stronger foothold. /2/ The latter fiction is more remote and less
+philosophical than the former; but, after all, both are equally
+fictions. Negligence is not foresight, but precisely the want of
+it; and if foresight were presumed, the ground of the
+presumption, and therefore the essential element, would be the
+knowledge of facts which made foresight possible.
+
+Taking knowledge, then, as the true starting-point, the next
+question is how to determine the circumstances necessary to be
+known in any given case in order to make a man liable for the
+consequences of his act. They must be such as would have led a
+prudent man to perceive danger, although not necessarily to
+foresee the specific harm. But this is a vague test. How is it
+decided what those circumstances are? The answer must be, by
+experience.
+
+But there is one point which has been left ambiguous in the
+preceding Lecture and here, and which must be touched upon. It
+has been assumed that conduct which [148] the man of ordinary
+intelligence would perceive to be dangerous under the
+circumstances, would be blameworthy if pursued by him. It might
+not be so, however. Suppose that, acting under the threats of
+twelve armed men, which put him in fear of his life, a man enters
+another's close and takes a horse. In such a case, he actually
+contemplates and chooses harm to another as the consequence of
+his act. Yet the act is neither blameworthy nor punishable. But
+it might be actionable, and Rolle, C. J. ruled that it was so in
+Gilbert v. Stone. /1/ If this be law, it goes the full length of
+deciding that it is enough if the defendant has had a chance to
+avoid inflicting the harm complained of. And it may well be
+argued that, although he does wisely to ransom his life as he
+best may, there is no reason why he should be allowed to
+intentionally and permanently transfer his misfortunes to the
+shoulders of his neighbors.
+
+It cannot be inferred, from the mere circumstance that certain
+conduct is made actionable, that therefore the law regards it as
+wrong, or seeks to prevent it. Under our mill acts a man has to
+pay for flowing his neighbor's lands, in the same way that he has
+to pay in trover for converting his neighbor's goods. Yet the law
+approves and encourages the flowing of lands for the erection of
+mills.
+
+Moral predilections must not be allowed to influence our minds in
+settling legal distinctions. If we accept the test of the
+liability alone, how do we distinguish between trover and the
+mill acts? Or between conduct which is prohibited, and that which
+is merely taxed? The only distinction which I can see is in the
+difference of the collateral consequences attached to the two
+classes of conduct. In the one, the maxim in pari delicto potior
+est [149] conditio defendentis, and the invalidity of contracts
+contemplating it, show that the conduct is outside the protection
+of the law. In the other, it is otherwise. /1/ This opinion is
+confirmed by the fact, that almost the only cases in which the
+distinction between prohibition and taxation comes up concern the
+application of these maxims.
+
+But if this be true, liability to an action does not necessarily
+import wrong-doing. And this may be admitted without at all
+impairing the force of the argument in the foregoing Lecture,
+which only requires that people should not be made to pay for
+accidents which they could not have avoided.
+
+It is doubtful, however, whether the ruling of Chief Justice
+Rolle would now be followed. The squib case, Scott v. Shepherd,
+and the language of some text-books, are more or less opposed to
+it. /2/ If the latter view is law, then an act must in general
+not only be dangerous, but one which would be blameworthy on the
+part of the average man, in order to make the actor liable. But,
+aside from such exceptional cases as Gilbert v. Stone, the two
+tests agree, and the difference need not be considered in what
+follows.
+
+I therefore repeat, that experience is the test by which it is
+decided whether the degree of danger attending given conduct
+under certain known circumstances is sufficient to throw the risk
+upon the party pursuing it.
+
+For instance, experience shows that a good many guns supposed to
+be unloaded go off and hurt people. The ordinarily intelligent
+and prudent member of the community [150] would foresee the
+possibility of danger from pointing a gun which he had not
+inspected into a crowd, and pulling the trigger, although it was
+said to be unloaded. Hence, it may very properly be held that a
+man who does such a thing does it at his peril, and that, if
+damage ensues, he is answerable for it. The co-ordinated acts
+necessary to point a gun and pull a trigger, and the intent and
+knowledge shown by the co-ordination of those acts, are all
+consistent with entire blamelessness. They threaten harm to no
+one without further facts. But the one additional circumstance of
+a man in the line and within range of the piece makes the conduct
+manifestly dangerous to any one who knows the fact. There is no
+longer any need to refer to the prudent man, or general
+experience. The facts have taught their lesson, and have
+generated a concrete and external rule of liability. He who snaps
+a cap upon a gun pointed in the direction of another person,
+known by him to be present, is answerable for the consequences.
+
+The question what a prudent man would do under given
+circumstances is then equivalent to the question what are the
+teachings of experience as to the dangerous character of this or
+that conduct under these or those circumstances; and as the
+teachings of experience are matters of fact, it is easy to see
+why the jury should be consulted with regard to them. They are,
+however, facts of a special and peculiar function. Their only
+bearing is on the question, what ought to have been done or
+omitted under the circumstances of the case, not on what was
+done. Their function is to suggest a rule of conduct.
+
+Sometimes courts are induced to lay down rules by facts of a more
+specific nature; as that the legislature passed a certain
+statute, and that the case at bar is within [151] the fair
+meaning of its words; or that the practice of a specially
+interested class, or of the public at large, has generated a rule
+of conduct outside the law which it is desirable that the courts
+should recognize and enforce. These are matters of fact, and have
+sometimes been pleaded as such. But as their only importance is,
+that, if believed, they will induce the judges to lay down a rule
+of conduct, or in other words a rule of law, suggested by them,
+their tendency in most instances is to disappear as fast as the
+rules suggested by them become settled. /1/ While the facts are
+uncertain, as they are still only motives for decision upon the
+law,--grounds for legislation, so to speak,--the judges may
+ascertain them in any way which satisfies their conscience. Thus,
+courts recognize the statutes of the jurisdiction judicially,
+although the laws of other jurisdictions, with doubtful wisdom,
+are left to the jury. /2/ They may take judicial cognizance of a
+custom of merchants. /3/ In former days, at least, they might
+inquire about it in pais after a demurrer. /4/ They may act on
+the statement of a special jury, as in the time of Lord Mansfield
+and his successors, or upon the finding of a common jury based on
+the testimony of witnesses, as is the practice to-day in this
+country. But many instances will be found the text-books which
+show that, when the facts are ascertained, they soon cease to be
+referred to, and give place to a rule of law.
+
+[152] The same transition is noticeable with regard to the
+teachings of experience. There are many cases, no doubt, in which
+the court would lean for aid upon a jury; but there are also many
+in which the teaching has been formulated in specific rules.
+These rules will be found to vary considerably with regard to the
+number of concomitant circumstances necessary to throw the peril
+of conduct otherwise indifferent on the actor. As the
+circumstances become more numerous and complex, the tendency to
+cut the knot with the jury becomes greater. It will be useful to
+follow a line of cases up from the simple to the more
+complicated, by way of illustration. The difficulty of
+distinguishing rules based on other grounds of policy from those
+which have been worked out in the field of negligence, will be
+particularly noticed.
+
+In all these cases it will be found that there has been a
+voluntary act on the part of the person to be charged. The reason
+for this requirement was shown in the foregoing Lecture.
+Unnecessary though it is for the defendant to have intended or
+foreseen the evil which he has caused, it is necessary that he
+should have chosen the conduct which led to it. But it has also
+been shown that a voluntary act is not enough, and that even a
+co-ordinated series of acts or conduct is often not enough by
+itself. But the co-ordination of a series of acts shows a further
+intent than is necessarily manifested by any single act, and
+sometimes proves with almost equal certainty the knowledge of one
+or more concomitant circumstances. And there are cases where
+conduct with only the intent and knowledge thus necessarily
+implied is sufficient to throw the risk of it on the actor.
+
+For instance, when a man does the series of acts called [153]
+walking, it is assumed for all purposes of responsibility that he
+knows the earth is under his feet. The conduct per se is
+indifferent, to be sure. A man may go through the motions of
+walking without legal peril, if he chooses to practise on a
+private treadmill; but if he goes through the same motions on the
+surface of the earth, it cannot be doubted that he knows that the
+earth is there. With that knowledge, he acts at his peril in
+certain respects. If he crosses his neighbor's boundary, he is a
+trespasser. The reasons for this strict rule have been partially
+discussed in the last Lecture. Possibly there is more of history
+or of past or present notions of policy its explanation than is
+there suggested, and at any rate I do not care to justify the
+rule. But it is intelligible. A man who walks knows that he is
+moving over the surface of the earth, he knows that he is
+surrounded by private estates which he has no right to enter, and
+he knows that his motion, unless properly guided, will carry him
+into those estates. He is thus warned, and the burden of his
+conduct is thrown upon himself.
+
+But the act of walking does not throw the peril of all possible
+consequences upon him. He may run a man down in the street, but
+he is not liable for that unless he does it negligently. Confused
+as the law is with cross-lights of tradition, and hard as we may
+find it to arrive at perfectly satisfactory general theory, it
+does distinguish in a pretty sensible way, according to the
+nature and degree of the different perils incident to a given
+situation.
+
+From the simple case of walking we may proceed to the more
+complex cases of dealings with tangible objects of property. It
+may be said that, generally speaking, a man meddles with such
+things at his own risk. It does not [154] matter how honestly he
+may believe that they belong to himself, or are free to the
+public, or that he has a license from the owner, or that the case
+is one in which the law has limited the rights of ownership; he
+takes the chance of how the fact may turn out, and if the fact is
+otherwise than as he supposes, he must answer for his conduct. As
+has been already suggested, he knows that he is exercising more
+or less dominion over property, or that he is injuring it; he
+must make good his right if it is challenged.
+
+Whether this strict rule is based on the common grounds of
+liability, or upon some special consideration of past or present
+policy, policy has set some limits to it, as was mentioned in the
+foregoing Lecture.
+
+Another case of conduct which is at the risk of the party without
+further knowledge than it necessarily imports, is the keeping of
+a tiger or bear, or other animal of a species commonly known to
+be ferocious. If such an animal escapes and does damage, the
+owner is liable simply on proof that he kept it. In this instance
+the comparative remoteness of the moment of choice in the line of
+causation from the effect complained of, will be particularly
+noticed. Ordinary cases of liability arise out of a choice which
+was the proximate cause of the harm upon which the action is
+founded. But here there is usually no question of negligence in
+guarding the beast. It is enough in most, if not in all cases,
+that the owner has chosen to keep it. Experience has shown that
+tigers and bears are alert to find means of escape, and that, if
+they escape, they are very certain to do harm of a serious
+nature. The possibility of a great danger has the same effect as
+the probability of a less one, and the law throws the risk of
+[155] the venture on the person who introduces the peril into the
+community.
+
+This remoteness of the opportunity of choice goes far to show
+that this risk is thrown upon the owner for other reasons than
+the ordinary one of imprudent conduct. It has been suggested that
+the liability stood upon remote inadvertence. /1/ But the law
+does not forbid a man to keep a menagerie, or deem it in any way
+blameworthy. It has applied nearly as strict a rule to dealings
+which are even more clearly beneficial to the community than a
+show of wild beasts.
+
+This seems to be one of those cases where the ground of liability
+is to be sought in policy coupled with tradition, rather than in
+any form of blameworthiness, or the existence of such a chance to
+avoid doing the harm as a man is usually allowed. But the fact
+that remote inadvertence has been suggested for an explanation
+illustrates what has been said about the difficulty of deciding
+whether a given rule is founded on special grounds, or has been
+worked out within the sphere of negligence, when once a special
+rule has been laid down.
+
+It is further to be noticed that there is no question of the
+defendant's knowledge of the nature of tigers, although without
+that knowledge he cannot be said to have intelligently chosen to
+subject the community to danger. Here again even in the domain of
+knowledge the law applies its principle of averages. The fact
+that tigers and bears are dangerous is so generally known, that
+a man who keeps them is presumed to know their peculiarities. In
+other words, he does actually know that he has an animal with
+certain teeth, claws, and so forth, and he must find out the
+[156] rest of what an average member of the community would know,
+at his peril.
+
+What is true as to damages in general done by ferocious wild
+beasts is true as to a particular class of damages done by
+domestic cattle, namely, trespasses upon another's land. This has
+been dealt with in former Lectures, and it is therefore needless
+to do more than to recall it here, and to call attention to the
+distinction based on experience and policy between damage which
+is and that which is not of a kind to be expected. Cattle
+generally stray and damage cultivated land when they get upon it.
+They only exceptionally hurt human beings.
+
+I need not recur to the possible historical connection of either
+of these last forms of liability with the noxoe deditio, because,
+whether that origin is made out or not, the policy of the rule
+has been accepted as sound, and carried further in England within
+the last few years by the doctrine that a man who brings upon his
+land and keeps there anything likely to do mischief if it escape,
+must keep it in at his peril. /1/ The strictness of this
+principle will vary in different jurisdictions, as the balance
+varies between the advantages to the public and the dangers to
+individuals from the conduct in question. Danger of harm to
+others is not the only thing to be considered, as has been said
+already. The law allows some harms to be intentionally inflicted,
+and a fortiori some risks to be intentionally run. In some
+Western States a man is not required to keep his cattle fenced
+in. Some courts have refused to follow Rylands v. Fletcher. /2/
+On the other hand, the principle has been applied to artificial
+[157] reservoirs of water, to cesspools, to accumulations of snow
+and ice upon a building by reason of the form of its roof, and to
+party walls. /1/
+
+In these cases, as in that of ferocious animals, it is no excuse
+that the defendant did not know, and could not have found out,
+the weak point from which the dangerous object escaped. The
+period of choice was further back, and, although he was not to
+blame, he was bound at his peril to know that the object was a
+continual threat to his neighbors, and that is enough to throw
+the risk of the business on him.
+
+I now pass to cases one degree more complex than those so far
+considered. In these there must be another concomitant
+circumstance known to the party in addition to those of which the
+knowledge is necessarily or practically proved by his conduct.
+The cases which naturally suggest themselves again concern
+animals. Experience as interpreted by the English law has shown
+that dogs, rams, and bulls are in general of a tame and mild
+nature, and that, if any one of them does by chance exhibit a
+tendency to bite, butt, or gore, it is an exceptional phenomenon.
+Hence it is not the law that a man keeps dogs, rams, bulls, and
+other like tame animals at his peril as to the personal damages
+which they may inflict, unless he knows or has notice that the
+particular animal kept by him has the abnormal tendency which
+they do sometimes show. The law has, however, been brought a
+little nearer to actual experience by statute in many
+jurisdictions.
+
+Now let us go one step farther still. A man keeps an unbroken and
+unruly horse, knowing it to be so. That is not enough to throw
+the risk of its behavior on him. The [158] tendency of the known
+wildness is not dangerous generally, but only under particular
+circumstances. Add to keeping, the attempt to break the horse;
+still no danger to the public is disclosed. But if the place
+where the owner tries to break it is a crowded thoroughfare, the
+owner knows an additional circumstance which, according to common
+experience, makes this conduct dangerous, and therefore must take
+the risk of what harm may be done. /1/ On the other hand, if a
+man who was a good rider bought a horse with no appearance of
+vice and mounted it to ride home, there would be no such apparent
+danger as to make him answerable if the horse became unruly and
+did damage. /2/ Experience has measured the probabilities and
+draws the line between the two cases.
+
+Whatever may be the true explanation of the rule applied to
+keeping tigers, or the principle of Rylands v. Fletcher, in the
+last cases we have entered the sphere of negligence, and, if we
+take a case lying somewhere between the two just stated, and add
+somewhat to the complexity of the circumstances, we shall find
+that both conduct and standard would probably be left without
+much discrimination to the jury, on the broad issue whether the
+defendant had acted as a prudent man would have done under the
+circumstances.
+
+As to wrongs called malicious or intentional it is not necessary
+to mention the different classes a second time, and to find them
+a place in this series. As has been seen, they vary in the number
+of circumstances which must be known. Slander is conduct which is
+very generally at the risk of [159] the speaker, because, as
+charges of the kind with which it deals are manifestly
+detrimental, the questions which practically arise for the most
+part concern the defence of truth or privilege. Deceit requires
+more, but still simple facts. Statements do not threaten the harm
+in question unless they are made under such circumstances as to
+naturally lead to action, and are made on insufficient grounds.
+
+It is not, however, without significance, that certain wrongs are
+described in language importing intent. The harm in such cases is
+most frequently done intentionally, if intent to cause a certain
+harm is shown, there need to prove knowledge of facts which made
+it that harm would follow. Moreover, it is often much easier to
+prove intent directly, than to prove the knowledge which would
+make it unnecessary.
+
+The cases in which a man is treated as the responsible cause of a
+given harm, on the one hand, extend beyond those in which his
+conduct was chosen in actual contemplation of that result, and in
+which, therefore, he may be to have chosen to cause that harm;
+and, on the other hand, they do not extend to all instances where
+the damages would not have happened but for some remote election
+his part. Generally speaking, the choice will be found to have
+extended further than a simple act, and to co-ordinated acts into
+conduct. Very commonly it will have extended further still, to
+some external consequence. But generally, also, it will be found
+to have stopped short of the consequence complained of.
+
+The question in each case is whether the actual choice, or, in
+other words, the actually contemplated result, was near enough to
+the remoter result complained of to throw the peril of it upon
+the actor.
+
+[160] Many of the cases which have been put thus far are cases
+where the proximate cause of the loss was intended to be produced
+by the defendant. But it will be seen that the same result may be
+caused by a choice at different points. For instance, a man is
+sued for having caused his neighbor's house to burn down. The
+simplest case is, that he actually intended to burn it down. If
+so, the length of the chain of physical causes intervening is of
+no importance, and has no bearing on the case.
+
+But the choice may have stopped one step farther back. The
+defendant may have intended to light a fire on his own land, and
+may not have intended to burn the house. Then the nature of the
+intervening and concomitant physical causes becomes of the
+highest importance. The question will be the degree of danger
+attending the contemplated (and therefore chosen) effect of the
+defendant's conduct under the circumstances known to him. If this
+was very plain and very great, as, for instance, if his conduct
+consisted in lighting stubble near a haystack close to the house,
+and if the manifest circumstances were that the house was of
+wood, the stubble very dry, and the wind in a dangerous quarter,
+the court would probably rule that he was liable. If the
+defendant lighted an ordinary fire in a fireplace in an adjoining
+house, having no knowledge that the fireplace was unsafely
+constructed, the court would probably rule that he was not
+liable. Midway, complicated and doubtful cases would go to the
+jury.
+
+But the defendant may not even have intended to set the fire, and
+his conduct and intent may have been simply to fire a gun, or,
+remoter still, to walk across a room, in doing which he
+involuntarily upset a bottle of acid. So that cases may go to the
+jury by reason of the remoteness [161] of the choice in the
+series of events, as well as because of the complexity of the
+circumstances attending the act or conduct. The difference is,
+perhaps, rather dramatic than substantial.
+
+But the philosophical analysis of every wrong begins by
+determining what the defendant has actually chosen, that is to
+say, what his voluntary act or conduct has been, and what
+consequences he has actually contemplated as flowing from them,
+and then goes on to determine what dangers attended either the
+conduct under the known circumstances, or its contemplated
+consequence under the contemplated circumstances.
+
+Take a case like the glancing of Sir Walter Tyrrel's arrow. If an
+expert marksman contemplated that the arrow would hit a certain
+person, cadit qucoestio. If he contemplated that it would glance
+in the direction of another person, but contemplated no more than
+that, in order to judge of his liability we must go to the end of
+his fore-sight, and, assuming the foreseen event to happen,
+consider what the manifest danger was then. But if no such event
+was foreseen, the marksman must be judged by the circumstances
+known to him at the time of shooting.
+
+The theory of torts may be summed up very simply. At the two
+extremes of the law are rules determined by policy without
+reference of any kind to morality. Certain harms a man may
+inflict even wickedly; for certain others he must answer,
+although his conduct has been prudent and beneficial to the
+community.
+
+But in the main the law started from those intentional wrongs
+which are the simplest and most pronounced cases, as well as the
+nearest to the feeling of revenge which leads to self-redress. It
+thus naturally adopted the vocabulary, [162] and in some degree
+the tests, of morals. But as the law has grown, even when its
+standards have continued to model themselves upon those of
+morality, they have necessarily become external, because they
+have considered, not the actual condition of the particular
+defendant, but whether his conduct would have been wrong in the
+fair average member of the community, whom he is expected to
+equal at his peril.
+
+In general, this question will be determined by considering the
+degree of danger attending the act or conduct under the known
+circumstances. If there is danger that harm to another will
+follow, the act is generally wrong in the sense of the law.
+
+But in some cases the defendant's conduct may not have been
+morally wrong, and yet he may have chosen to inflict the harm, as
+where he has acted in fear of his life. In such cases he will be
+liable, or not, according as the law makes moral blameworthiness,
+within the limits explained above, the ground of liability, or
+deems it sufficient if the defendant has had reasonable warning
+of danger before acting. This distinction, however, is generally
+unimportant, and the known tendency of the act under the known
+circumstances to do harm may be accepted as the general test of
+conduct.
+
+The tendency of a given act to cause harm under given
+circumstances must be determined by experience. And experience
+either at first hand or through the voice of the jury is
+continually working out concrete rules, which in form are still
+more external and still more remote from a reference to the moral
+condition of the defendant, than even the test of the prudent man
+which makes the first stage of the division between law and
+morals. It does this in the domain [163] of wrongs described as
+intentional, as systematically as in those styled unintentional
+or negligent.
+
+But while the law is thus continually adding to its specific
+rules, it does not adopt the coarse and impolitic principle that
+a man acts always at his peril. On the contrary, its concrete
+rules, as well as the general questions addressed to the jury,
+show that the defendant must have had at least a fair chance of
+avoiding the infliction of harm before he becomes answerable for
+such a consequence of his conduct. And it is certainly arguable
+that even a fair chance to avoid bringing harm to pass is not
+sufficient to throw upon a person the peril of his conduct,
+unless, judged by average standards, he is also to blame for what
+he does.
+
+[164]
+
+
+
+
+LECTURE V. -- THE BAILEE AT COMMON LAW.
+
+So far the discussion has been confined to the general principles
+of liability, and to the mode of ascertaining the point at which
+a man begins to act at his own peril. But it does not matter to a
+man whether he acts at his own peril or not, unless harm comes of
+it, and there must always be some one within reach of the
+consequences of the act before any harm can be done. Furthermore,
+and more to the point, there are certain forms of harm which are
+not likely to be suffered, and which can never be complained of
+by any one except a person who stands in a particular relation to
+the actor or to some other person or thing. Thus it is neither a
+harm nor a wrong to take fish from a pond unless the pond is
+possessed or owned by some one, and then only to the possessor or
+owner. It is neither a harm nor a wrong to abstain from
+delivering a bale of wool at a certain time and place, unless a
+binding promise has been made so to deliver it, and then it is a
+wrong only to the promisee.
+
+The next thing to be done is to analyze those special relations
+out of which special rights and duties arise. The chief of
+them--and I mean by the word "relations" relations of fact
+simply--are possession and contract, and I shall take up those
+subjects successively.
+
+The test of the theory of possession which prevails in any system
+of law is to be found in its mode of dealing [165] who have a
+thing within their power, but not own it, or assert the position
+of an owner for with regard to it, bailees, in a word. It is
+therefore, as a preliminary to understanding the common-law
+theory of possession, to study the common law with regard to
+bailees.
+
+The state of things which prevailed on the border between England
+and Scotland within recent times, and which is brought back in
+the flesh by the ballad of the Fray O'Suport, is very like that
+which in an earlier century left its skeleton in the folk-laws of
+Germany and England. Cattle were the principal property known,
+and cattle-stealing the principal form of wrongful taking of
+property. Of law there was very little, and what there was
+depended almost wholly upon the party himself to enforce. The
+Salic Law of the fifth century and the Anglo-Saxon laws of Alfred
+are very full in their directions about following the trail. If
+the cattle were come up with before three days were gone, the
+pursuer had the fight to take and keep them, subject only to
+swearing that he lost them against his will. If more than three
+days went by before the cattle were found, the defendant might
+swear, if he could, to facts which would disprove the claimant's
+loss.
+
+This procedure was in truth a legal procedure; but it depended
+for its beginning and for its execution on the party making the
+claim. From its "executive" nature, it could hardly have been
+started by any other than the person on the spot, in whose
+keeping the cattle were. The oath was to the effect that the
+party had lost possession against his will. But if all that a man
+had to swear was that he had lost possession against his will, it
+is a natural conclusion that the right to take the oath and make
+use of [166] the procedure depended on possession, and not on
+ownership. Possession was not merely sufficient, but it was
+essential. Only he who was in possession could say that he had
+lost the property against his will, just as only he who was on
+the spot could follow the cattle. /1/
+
+This, so far as known, was the one means afforded by the early
+law of our race for the recovery of property lost against one's
+will. So that, in a word, this procedure, modelled on the
+self-redress natural to the case which gave rise to it, was the
+only remedy, was confined to the man in possession, and was not
+open to the owner unless he was that man.
+
+To this primitive condition of society has been traced a rule
+which maintained itself to later times and a more civilized
+procedure, that, if chattels were intrusted by their owner to
+another person, the bailee, and not the bailor, was the proper
+party to sue for their wrongful appropriation by a third. It
+followed that if the bailee, or person [167] so intrusted, sold
+or gave the goods in his charge to another, the owner could only
+look to the bailee, and could not sue the stranger; not from any
+principle in favor of trade, intended to protect those who bought
+in good faith from parties in possession, but because there was
+no form of action known which was open to him. But as the
+remedies were all in the bailee's hands, it also followed that he
+was bound to hold his bailor harmless. If the goods were lost, it
+was no excuse that they were stolen without his fault. He alone
+could recover the lost property, and therefore he was bound to do
+so.
+
+In the course of time this reason ceased to exist. An owner out
+of possession could sue the wrongful taker of his property, as
+well as one who had possession. But the strict liability of the
+bailee remained, as such rules do remain in the law, long after
+the causes which gave rise to it had disappeared, and at length
+we find cause and effect inverted. We read in Beaumanoir (A.D.
+1283) that, if a hired thing is stolen, the suit belongs to the
+bailee, because he is answerable to the person from whom he
+hired. /1/ At first the bailee was answerable to the owner,
+because he was the only person who could sue. Now it was said he
+could sue because he was answerable to the owner.
+
+All the above peculiarities reappear in the Anglo-Norman law, and
+from that day to this all kinds of bailees have been treated as
+having possession in a legal sense, as I shall presently show.
+
+It is desirable to prove the native origin of our law of
+bailment, in order that, when theory comes to be considered,
+modern German opinion may not be valued at more than its true
+worth. The only existing theories on [168] the subject come from
+Germany. The German philosophers who have written upon law have
+known no other system than the Roman, and the German lawyers who
+have philosophized have been professors of Roman law. Some rules
+which we think clear are against what the German civilians would
+regard as first principles. To test the value of those
+principles, or at least to prevent the hasty assumption that they
+are universal, toward which there is a slight tendency among
+English writers, it is well to realize that we are dealing with a
+new system, of which philosophy has not yet taken account.
+
+In the first place, we find an action to recover stolen property,
+which, like the Salic procedure, was based on possession, not on
+title. Bracton says that one may sue for his chattel as stolen,
+by the testimony of good men, and that it does not matter whether
+the thing thus taken was his own property or another's, provided
+it was in his custody. /1/
+
+The point of especial importance, it will be remembered, was the
+oath. The oath of the probi homines would seem from the letter of
+Bracton to have been that the thing was lost (adirata), and this
+we are expressly told was the fact in a report of the year 1294.
+"Note that where a man's chattel is lost (ou la chosse de un home
+est endire), he may count that he [the finder] tortiously detains
+it, &c., and tortiously for this that whereas he lost the said
+thing on such a day, &c., he [the loser] came on such a day, &c.
+[169] (la vynt yl e en jour), and found it in the house of such
+an one, and told him, &c., and prayed him to restore the Sing,
+but that he would not restore it, &c., to his damage, &c.; and if
+he, &c. In this case, the demandant must prove (his own hand the
+twelfth) that he lost the thing." /1/
+
+Assuming that as the first step we find a procedure kindred to
+that of the early German folk-laws, the more important question
+is whether we find any principles similar to those which have
+just been explained. One of these, it will be remembered,
+concerned wrongful transfer by the bailee. We find it laid down
+in the Year Books that, if I deliver goods to a bailee to keep
+for me, and he sells or gives them to a stranger, the property is
+vested in the stranger by the gift, and I cannot maintain
+trespass against him; but that I have a good remedy against the
+bailee by writ of detinue (for his failure to return the goods).
+/2/ These cases have been understood, and it would seem on the
+whole rightly, not merely to deny trespass to the bailor, but any
+action whatever. Modern writers have added, however, the
+characteristically modern qualification, that the purchase must
+be bona fide, and without notice. /3/ It may be answered, that
+the proposition extends to gifts as well as to sales by the
+bailee, that there is no such condition in the old books, and
+that it is contrary to the spirit of the strict doctrines of the
+common law to read it in. No lawyer needs to be told that, even
+so qualified, this is no [170] longer the law. /1/ The doctrine
+of the Year Books must be regarded as a survival from the
+primitive times when we have seen the same rule in force, unless
+we are prepared to believe that in the fifteenth century they had
+a nicer feeling for the rights of bona fide purchasers than at
+present.
+
+The next point in logical order would be the degree of
+responsibility to which the bailee was held as towards his bailor
+who intrusted him. But for convenience I will consider first the
+explanation which was given of the bailee's right of action
+against third persons wrongfully taking the goods from his
+possession. The inverted explanation of Beaumanoir will be
+remembered, that the bailee could sue because he was answerable
+over, in place of the original rule, that he was answerable over
+so strictly because only he could sue. We find the same reasoning
+often repeated in the Year Books, and, indeed, from that day to
+this it has always been one of the commonplaces of the law. Thus
+Hankford, then a judge of the Common Bench, says (circa A.D.
+1410), /2/ "If a stranger takes beasts in my custody, I shall
+have a writ of trespass against him, and shall recover the value
+of the beasts, because I am chargeable for the beasts to my
+bailor, who has the property." There are cases in which this
+reasoning was pushed to the conclusion, that if, by the terms of
+the trust, the bailee was not answerable for the goods if stolen,
+he would not have an action against the thief. /3/ The same
+explanation is repeated to this day. Thus we read in a well-
+known textbook, [171] "For the bailee being responsible to the
+bailor, if the goods be lost or damaged by negligence, or if he
+do not deliver them up on lawful demand, it is therefore
+reasonable that he should have a right of action," &c. /1/ In
+general, nowadays, a borrower or hirer of property is not
+answerable if it is taken from him against his will, and if the
+reason offered were a true one, it would follow that, as he was
+not answerable over, he could not sue the wrong-doer. It would
+only be necessary for the wrong-doer to commit a wrong so gross
+as to free the bailee from responsibility, in order to deprive
+him of his right of action. The truth is, that any person in
+possession, whether intrusted and answerable over or not, a
+finder of property as well as a bailee, can sue any one except
+the true owner for interfering with his possession, as will be
+shown more particularly at the end of the next Lecture.
+
+The bailor also obtained a right of action against the wrong-doer
+at a pretty early date. It is laid down by counsel in 48 Edward
+III., /2/ in an action of trespass by an agister of cattle, that,
+"in this case, he who has the property may have a writ of
+trespass, and he who has the custody another writ of trespass.
+Persay: Sir, it is true. But [172] he who recovers first shall
+oust the other of the action, and so it shall be in many cases,
+as if tenant by elegit is ousted, each shall have the assize,
+and, if the one recover first, the writ of the other is abated,
+and so here."
+
+It would seem from other books that this was spoken of bailments
+generally, and was not limited to those which are terminable at
+the pleasure of the bailor. Thus in 22 Edward IV., counsel say,
+"If I bail to you my goods, and another takes them out of your
+possession, I shall have good action of trespass quare vi et
+armis." /1/ And this seems to have been Rolle's understanding in
+the passage usually relied on by modern courts. /2/
+
+It was to be expected that some action should be given to the
+bailor as soon as the law had got machinery which could be worked
+without help from the fresh pursuit and armed hands of the
+possessor and his friends. To allow the bailor to sue, and to
+give him trespass, were pretty nearly the same thing before the
+action on the case was heard of. Many early writs will be found
+which show that trespass had not always the clear outline which
+it developed later. The point which seems to be insisted on in
+the Year Books is, as Brooke sums it up in the margin of his
+Abridgment, that two shall have an action for a single act,--not
+that both shall have trespass rather than case. /3/ It should be
+added that the Year Books quoted do not go beyond the case of a
+wrongful taking out of the custody of the bailee, the old case of
+the folk-laws. /4/ Even thus [173] the right to maintain trespass
+is now denied where bailee has the exclusive right to the goods
+by lease or lien; /1/ although the doctrine has been repeated
+with reference to bailments terminable at the pleasure of the
+bailor. /2/ But the modified rule does not concern the present
+discussion, any more than the earlier form, because it still
+leaves open the possessory remedies to all bailees without
+exception. This appears from the relation of the modified rule to
+the ancient law; from the fact that Baron Parke, in the just
+cited case of Manders v. Williams, hints that he would have been
+prepared to apply the old rule to its full extent but for Gordon
+v. Harper, and still more obviously from the fact, that the
+bailee's right to trespass and trover is asserted in the same
+breath with that of the bailor, as well as proved by express
+decisions to be cited.
+
+It is true that in Lotan v. Cross, /3/ Lord Ellenborough ruled at
+nisi prius that a lender could maintain trespass for damage done
+to a chattel in the hands of a borrower, and that the case is
+often cited as authority without remark. Indeed, it is sometimes
+laid down generally, in reputable text-books, that a gratuitous
+bailment does not change the possession, but leaves it in the
+bailor; /4/ that a gratuitous bailee is quasi a servant of the
+bailor, and the possession of one is the possession of the other;
+and that it is for this reason that, although the bailee may sue
+on [174] his possession, the bailor has the same actions. /1/ A
+part of this confusion has already been explained, and the rest
+will be when I come to speak of servants, between whom and all
+bailees there is a broad and well-known distinction. But on
+whatever ground Lotan v. Cross may stand, if on any, it cannot
+for a moment be admitted that borrowers in general have not
+trespass and trover. A gratuitous deposit for the sole benefit of
+the depositor is a much stronger case for the denial of these
+remedies to the depositary; yet we have a decision by the full
+court, in which Lord Ellenborough also took part, that a
+depositary has case, the reasoning implying that a fortiori a
+borrower would have trespass. And this has always been the law.
+/2/ It has been seen that a similar doctrine necessarily resulted
+from the nature of the early German procedure; and the cases
+cited in the note show that, in this as in other respects, the
+English followed the traditions of their race.
+
+The meaning of the rule that all bailees have the possessory
+remedies is, that in the theory of the common law every bailee
+has a true possession, and that a bailee recovers on the strength
+of his possession, just as a finder does, and as even a wrongful
+possessor may have full damages or a return of the specific thing
+from a stranger to the title. On the other hand, so far as the
+possessory actions are still allowed to bailors, it is not on the
+ground that they also have possession, but is probably by a
+survival, which [175] explained, and which in the modern form of
+the an anomaly. /1/ The reason usually given is, that a right of
+immediate possession is sufficient,--a reason which the notion
+that the bailor is actually possessed.
+
+The point which is essential to understanding the common-law
+theory of possession is now established: that all bailees from
+time immemorial have been regarded by the English law as
+possessors, and entitled to the possessory remedies. It is not
+strictly necessary to go on and complete the proof that our law
+of bailment is of pure German descent. But, apart from curiosity,
+the doctrine remaining to be discussed has had such important
+influence upon the law of the present day, that I shall follow it
+out with some care. That doctrine was the absolute responsibility
+of the bailee to the bailor, if the goods were wrongfully taken
+from him. /2/
+
+The early text-writers are not as instructive as might be hoped,
+owing to the influence of the Roman law. Glanvil, however, says
+in terms that, if a borrowed thing be destroyed or lost in any
+way while in the borrower's custody, he is absolutely bound to
+return a reasonable price. /3/ So does Bracton, who partially
+repeats but modifies the language of Justinian as to commodatum,
+depositum, and pignus; /4/ and as to the duty of the hirer to use
+the care of a diligentissimus paterfamilias. /5/
+
+[176] The language and decisions of the courts are perfectly
+clear; and there we find the German tradition kept alive for
+several centuries. I begin with the time of Edward II., about
+1315. In detinue the plea was that the plaintiff delivered the
+defendant a chest locked with his key, that the chattels were in
+the chest, and that they were taken from the defendant together
+with his own goods by robbery. The replication was that the goods
+were delivered to the defendant out of enclosure, and Fitzherbert
+says the party was driven to that issue; /1/ which implies that,
+if not in the chest, but in the defendant's custody, he was
+liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest
+would make any difference; but the old books agree that there is
+no delivery if the goods are under lock and key; and this is the
+origin of the distinction as to carriers breaking bulk in modern
+criminal law. /3/ In the reign of Edward III., /4/ the case of a
+pledge came up, which seems always to have been regarded as a
+special bailment to keep as one's own goods. The defence was,
+that the goods were stolen with the defendant's own. The
+plaintiff was driven to reply a tender before the theft, which
+would have put an end to the pledge, and left the defendant a
+general bailee. /5/ Issue was taken thereon, which confirms the
+other cases, by implying that in that event the defendant would
+be liable.
+
+Next I take a case of the time of Henry VI., A.D. 1455. /6/ [177]
+was an action of debt against the Marshal of the Marshalsea, or
+jailer of the King's Bench prison, for an escape of a prisoner.
+Jailers in charge of prisoners were governed by the same law as
+bailees in charge of cattle. The body of the prisoner was
+delivered to the jailer to keep under the same liabilities that
+cows or goods might have been. /1/ He set up in defence that
+enemies of the king broke into the prison and carried off the
+prisoner, against the will of the defendant. The question was
+whether this was a good defence. The court said that, if alien
+enemies of the king, for instance the French, released the
+prisoner, or perhaps if the burning of the prison gave him a
+chance to escape, the excuse would be good, "because then [the
+defendant] has remedy against no one." But if subjects of the
+king broke the prison, the defendant would be liable, for they
+are not enemies, but traitors, and then, it is implied, the
+defendant would have a right of action against them, and
+therefore would himself be answerable. In this case the court got
+very near to the original ground of liability, and distinguished
+accordingly. The person intrusted was liable in those cases where
+he had a remedy over against the wrong-doer (and in which,
+originally, he was the only person who had such a remedy); and,
+on the other hand, his liability, being founded on that
+circumstance, ceased where the remedy ceased. The jailer could
+not sue the soldiers of an invading army of Frenchmen; but in
+theory he could sue any British subject who carried off the
+prisoner, however little it was likely that he would get much
+satisfaction in that way.
+
+A few years later the law is stated the same way by the famous
+Littleton. He says that, if goods are delivered to [178] a man,
+he shall have an action of trespass if they are carried off, for
+he is chargeable over. /1/ That is, he is bound to make the loss
+good to the party who intrusted him.
+
+In 9 Edward IV., /2/ Danby says if a bailee received goods to
+keep as his proper goods, then robbery shall excuse him,
+otherwise not. Again, in a later case /3/ robbery is said not to
+be an excuse. There may have been some hesitation as to robbery
+when the robber was unknown, and so the bailee had no remedy
+over, /4/ or even as to robbery generally, on the ground that by
+reason of the felony the bailee could not go against either the
+robber's body or his estate; for the one was hanged and the other
+forfeited. /5/ But there is not a shadow of doubt that the bailee
+was not excused by an ordinary wrongful taking. "If the goods are
+taken by a trespasser, of whom the bailee has conusance, he shall
+be chargeable to his bailor, and shall have his action over
+against his trespasser." /6/ The same point was touched in other
+passages of the Year Books, /7/ and the rule of law is clearly
+implied by the reason which was given for the bailee's right to
+sue in the cases cited above.
+
+The principle was directly decided in accordance with the ancient
+law in the famous case of Southcote v. Bennet. /8/ This was
+detinue of goods delivered to the defendant to [179] keep safely.
+The defendant confessed the delivery, and set up he was robbed of
+the goods by J.S. "And, after argument at the bar, Gawdy and
+Clench, ceteris absentibus, held that the plaintiff ought to
+recover, because it was not a special bailment; that the
+defendant accepted them to keep as his proper goods, and not
+otherwise; but it is a delivery, which chargeth him to keep them
+at his peril. And it is not any plea in a detinue to say that he
+was robbed by one such; for he hath his remedy over by trespass,
+or appeal, to have them again." The above from Croke's report
+implies, what Lord Coke expressly says, that "to be kept, and to
+be kept safe, is all one," and both reports agree that the
+obligation was founded on the delivery alone. Croke's report
+confirms the caution which Lord Coke adds to his report: "Note,
+reader, it is good policy for him who takes any goods to keep, to
+take them in special manner, scil. to keep them as he keeps his
+own goods,... or if they happen to be stolen or purloined, that
+he shall not be answerable for them; for he who accepted them
+ought to take them in such or the like manner, or otherwise he
+may be charged by his general acceptance."
+
+Down to this time, at least, it was clear law that, if a person
+accepted the possession of goods to keep for another even as a
+favor, and lost them by wrongful taking, wholly without his
+fault, he was bound to make good the loss, unless when he took
+possession he expressly stipulated against such a responsibility.
+The attempts of Lord Holt in Coggs v. Bernard, and of Sir William
+Jones in his book on Bailments, to show that Southcote v. Bennet
+was not sustained by authority, were futile, as any one who will
+Study the Year Books for himself may see. The same principle was
+laid down seven years before by Peryam, [180] C. B., in Drake v.
+Royman, /1/ and Southcote's Case was followed as a leading
+precedent without question for a hundred years.
+
+Thus the circle of analogies between the English and the early
+German law is complete. There is the same procedure for lost
+property, turning on the single question whether the plaintiff
+had lost possession against his will; the same principle that, if
+the person intrusted with the property parted with it to another,
+the owner could not recover it, but must get his indemnity from
+his bailee; the same inverted explanation, that the bailee could
+sue because he was answerable over, but the substance of the true
+doctrine in the rule that when he had no remedy he was not
+answerable; and, finally, the same absolute responsibility for
+loss, even when happening without fault on the part of the person
+intrusted. The last and most important of these principles is
+seen in force as late as the reign of Queen Elizabeth. We have
+now to follow its later fortunes.
+
+A common carrier is liable for goods which are stolen from him,
+or otherwise lost from his charge except by the act of God or the
+public enemy. Two notions have been entertained with regard to
+the source of this rule: one, that it was borrowed from the Roman
+law; /2/ the other, that it was introduced by custom, as an
+exception to the general law of bailment, in the reigns of
+Elizabeth and James I. /3/
+
+I shall try to show that both these notions are wrong, that this
+strict responsibility is a fragmentary survival from the general
+law of bailment which I have just explained; [181] the
+modifications which the old law has undergone were due in part to
+a confusion of ideas which came the displacement of detinue by
+the action on the case, in part to conceptions of public policy
+which were read into the precedents by Lord Holt, and in part to
+still later conceptions of policy which have been read into the
+reasonings of Lord Holt by later judges.
+
+Southcote's Case was decided in the forty-third year of Queen
+Elizabeth (A.D. 1601). I think the first mention of a carrier,
+pertinent to the question, occurs in Woodlife's Case, /1/ decided
+four or five years earlier (38 or 39 Eliz., A.D. 1596 or 1597).
+It was an action of account for merchandise delivered to the
+defendant, it would seem as a factor ("pur
+merchandizer")--clearly not as a carrier. Plea, robbery at sea
+with defendant's own goods. Gawdy, one of the judges who decided
+Southcote's Case, thought the plea bad; but Popham, C. J. said
+that, though it would not be a good plea for a carrier because he
+is paid for his carriage, there was a difference in this respect
+between carriers and other servants and factors.
+
+This is repeated in Southcote's Case, and appears to involve a
+double distinction,--first between paid and unpaid bailees, next
+between bailees and servants. If the defendant was a servant not
+having control over the goods, he might not fall within the law
+of bailment, and factors are treated on the footing of servants
+in the early law.
+
+The other diversity marked the entrance of the doctrine of
+consideration into the law of bailment. Consideration originally
+meant quid pro quo, as will be explained hereafter. It was thus
+dealt with in Doctor and Student /2/ when the principle was still
+young. Chief Justice [183] Popham probably borrowed his
+distinction between paid and unpaid bailees from that work, where
+common carriers are mentioned as an example of the former class.
+A little earlier, reward made no difference. /1/
+
+But in Woodlife's Case, in reply to what the Chief Justice had
+said, Gawdy cited the case of the Marshal of the King's Bench,
+/2/ stated above, whereupon Popham fell back on the old
+distinction that the jailer had a remedy over against the rebels,
+but that there was no remedy over in the case at bar.
+
+The other cases relied on were some of those on general bailment
+collected above; the same authorities, in short, on which
+Southcote's Case was founded. The principle adopted was the same
+as in Southcote's Case, subject only to the question whether the
+defendant fell within it. Nothing was said of any custom of the
+realm, or ever had been in any reported case before this time;
+and I believe this to be the first instance in which carriers are
+in any way distinguished from any other class of persons
+intrusted with goods. There is no hint of any special obligation
+peculiar to them in the old books; and it certainly is not true,
+that this case introduced one. It will be noticed, with reference
+to what follows, that Popham does not speak of common carriers,
+but of carriers.
+
+Next came Southcote's Case /3/ (43 Eliz., A.D. 1601), which
+presented the old law pure and simple, irrespective of reward or
+any modern innovation. In this and the earlier instances of loss
+by theft, the action was detinue, counting, we may presume,
+simply on a delivery and wrongful detainer.
+
+[183] But about this time important changes took place in the
+procedure usually adopted, which must be explained. If the
+chattel could be returned in specie, detinue afforded no
+satisfaction for damage which it might have suffered through the
+bailee's neglect. /1/ The natural remedy for such damage was the
+action on the case. But before this could be made entirely
+satisfactory, there were certain difficulties to be overcome. The
+neglect which occasioned the damage might be a mere omission, and
+what was there akin to trespass in a nonfeasance to sustain the
+analogy upon which trespass on the case was founded? Moreover, to
+charge a man for not acting, you must show that it was his duty
+to act. As pleadings were formerly construed, it would not have
+been enough to allege that the plaintiff's goods were damaged by
+the defendant's negligence. /2/ These troubles had been got over
+by the well-known words, super se assumpsit, which will be
+explained later. Assumpsit did not for a long time become an
+independent action of contract, and the allegation was simply the
+inducement to an action of tort. The ground of liability was that
+the defendant had started upon the undertaking, so that his
+negligent omission, which let in the damage, could be connected
+with his acts as a part of his dealing with the thing. /3/ We
+shall find Lord Holt recognizing this original purport of
+assumpsit when we come to Coggs v. Bernard. Of course it was not
+confined to cases of bailment.
+
+But there was another way besides this by which the defendant
+could be charged with a duty and made liable [184] in case, and
+which, although less familiar to lawyers, has a special bearing
+on the law of carriers in later times. If damage had been done or
+occasioned by the act or omission of the defendant in the pursuit
+of some of the more common callings, such as that of a farrier,
+it seems that the action could be maintained, without laying an
+assumpsit, on the allegation that he was a "common" farrier. /1/
+The latter principle was also wholly independent of bailment. It
+expressed the general obligation of those exercising a public or
+"common" business to practise their art on demand, and show skill
+in it. "For," as Fitzherbert says, "it is the duty of every
+artificer to exercise his art rightly and truly as he ought." /2/
+
+When it had thus been established that case would lie for damage
+when occasioned by the omission, as well as when caused by the
+act, of the defendant, there was no reason for denying it, even
+if the negligent custody had resulted in the destruction of the
+property. /3/ From this it was but a step to extend the same form
+of action to all cases of loss by a bailee, and so avoid the
+defendant's right to wage his law. Detinue, the primitive remedy,
+retained that mark of primitive procedure. The last extension was
+made about the time of Southcote's Case. /4/ But when the [185]
+same form of action thus came to be used alike for damage or
+destruction by the bailee's neglect and for loss by a wrong-doer
+against whom the bailee had a remedy over, a source was opened
+for confusion with regard to the foundation and nature of the
+defendant's duty.
+
+In truth, there were two sets of duties,--one not peculiar to
+bailees, arising from the assumpsit or public calling of the
+defendant, as just explained; the other, the ancient obligation,
+peculiar to them as such, of which Southcote's Case was an
+example. But any obligation of a bailee might be conceived of as
+part of a contract of bailment, after assumpsit had become
+appropriated to contract, the doctrine of consideration had been
+developed, (both of which had happened in Lord Coke's time,) it
+seemed unnecessary to distinguish nicely between the two sets of
+duties just mentioned, provided a consideration and special
+promise could be alleged. Furthermore, as formerly the
+defendant's public calling had the same effect as an assumpsit
+for the purpose of charging him in tort, it seems now to have
+been thought an equally good substitute for a special promise, in
+order to charge him in assumpsit. In Rogers v. Head, /1/ the
+argument was, that to charge one in assumpsit you must show
+either his public calling at the time of the delivery, or a
+special promise on sufficient consideration. This argument
+assumes that a bailee who received goods in the course of a
+public employment, [186] for instance as a common carrier, could
+be charged in this form of action for a breach of either of the
+above sets of duties, by alleging either his public calling or
+his reward and a special promise. It seems to have been admitted,
+as was repeatedly decided before and since that case, that one
+who was not a common carrier could have been charged for
+non-delivery in a special action; that is, in case as
+distinguished from assumpsit.
+
+Suppose, next, that the plaintiff sued in case for a tort. As
+before, the breach of duty complained of might be such damage to
+property as had always been sued for in that form of action, or
+it might be a loss by theft for which detinue would formerly have
+been brought, and which fell on the bailee only by reason of the
+bailment. If the goods had been stolen, the bailee's liability
+rested neither on his common calling nor on his assumpsit and his
+neglect, but arose from the naked facts that he had accepted a
+delivery and that the goods were gone, and in such cases it ought
+to have been enough to allege those facts in the declaration. /1/
+But it was very natural that the time-honored foundations for the
+action on the case in its more limited application should still
+be laid in the pleadings, even after the scope of the action had
+been enlarged. We shall have to inquire, later, whether the
+principles of Southcote's Case were not also extended in the
+opposite direction to cases not falling within it. The reasons
+for the rule which it laid down had lost their meaning centuries
+before Gawdy and Clench were born, when owners had acquired the
+right to sue for the wrongful taking of property in the hands
+[187] and the rule itself was a dry precedent likely to be
+followed according to the letter because the spirit had departed.
+It had begun to totter when the reporter cautioned bailees to
+accept in such terms as to get rid of it. /1/
+
+Accordingly, although that decision was the main authority relied
+on for the hundred years between it and Coggs v. Bernard whenever
+a peculiar responsibility was imposed upon bailees, we find that
+sometimes an assumpsit was laid as in the early precedents, /2/
+or more frequently that the bailee was alleged to be a common
+bargeman, or common carrier, or the like, without much reference
+to the special nature of the tort in question; and that the true
+bearing of the allegation was sometimes lost sight of. At first,
+however, there were only some slight signs of confusion in the
+language of one or two cases, and if the duty was conceived to
+fall within the principle of Southcote's Case, pleaders did not
+always allege the common or public calling which was held
+unnecessary. /3/ But they also adopted other devices from the
+precedents in case, or to strengthen an obligation which they did
+not well understand. Chief Justice Popham had sanctioned a
+distinction between paid and unpaid bailees, hence it was deemed
+prudent to lay a reward. Negligence was of course averred; and
+finally it became frequent to allege an obligation by the law and
+custom of the realm. This last deserves a little further
+attention.
+
+There is no writ in the Register alleging any special obligation
+of common carriers by the custom of the realm. But the writ
+against innkeepers did lay a duly "by the [188] law and custom of
+England," and it was easy to adopt the phrase. The allegation did
+not so much imply the existence of a special principle, as state
+a proposition of law in the form which was then usual. There are
+other writs of trespass which allege a common-law duty in the
+same way, and others again setting forth a statutory obligation.
+/1/ So "the judges were sworn to execute justice according to law
+and the custom of England." /2/
+
+The duties of a common carrier, so far as the earlier evidence
+goes, were simply those of bailees in general, coupled with the
+liabilities generally attached to the exercise of a public
+calling. The word "common" addressed itself only to the latter
+point, as has been shown above. This is further illustrated by
+the fact that, when the duty was thus set forth, it was not
+alleged as an obligation peculiar to common carriers as such, but
+was laid as the custom of law of common hoymen, or lightermen,
+&c., according to the business of the party concerned. It will be
+noticed that Chief Justice Holt in Coggs v. Bernard states the
+liability as applicable to all bailees for reward, exercising a
+public employment, and mentions common hoymen and masters of
+ships alongside of, not as embraced under, common carriers. It
+will also be noticed in the cases before that time, that there is
+no settled formula for the obligation in question, but that it is
+set forth in each case that the defendant was answerable for what
+he was said to have done or omitted in the particular instance.
+/3/
+
+[189] Returning now to the succession of the cases, Rich v.
+Kneeland is the next in order (11 Jac. I., A.D. 1613). It was an
+action on the case (tort), against a common hoyman. In Croke's
+report nothing is said of custom; but the declaration avers that
+the defendant was a common bargeman, that the plaintiff delivered
+him a portmanteau, &c. to carry, and paid him for it, and that
+the defendant tam negligenter custodivit, that it was taken from
+him by persons unknown,--like the second count in Morse v. Slue,
+below. The plea was demurred to, and adjudged for the plaintiff.
+A writ of error being brought, it was assigned that "this action
+lies not against a common bargeman without special promise. But
+all the Justices and Barons held, that it well lies as against a
+common carrier upon the land." If we follow this report, it seems
+at the first glance that importance was attributed to the common
+calling. But as the loss was clearly within the principle of
+Southcote's Case, which required neither special promise nor
+common calling for its application, and which remained
+unquestioned law for three quarters of a century later, the court
+must have referred to the form of action employed (case), and not
+to the liability of the defendant in some form of action
+(detinue). The objection was that "this action lies not," not
+that the defendant not liable, "without special promise." Even
+thus narrowed, it rather countenances the notion that allegations
+which were necessary to charge a man for damage happening through
+his neglect, in the more ancient and use of this action, were
+also necessary in this new [190] extension of it to a different
+class of wrongs. As it was now pretty clear that case would lie
+for a nonfeasance, the notion was mistaken, and we shall see that
+it was denied in subsequent decisions. /1/
+
+According to Hobart's report, it was alleged that the defendant
+was a common hoyman, to carry goods by water, for hire, &c., that
+by the custom of England such carriers ought to keep the goods,
+&c., so as they should not be lost by the default of them or
+their servants, &c. "And it was resolved that, though it was laid
+as a custom of the realm, yet indeed it is common law." This last
+resolution may only mean that the custom of the realm and the
+common law are the same thing, as had been said concerning
+innkeepers long before. /2/ But the law as to innkeepers, which
+was called the custom of the realm in the writ, had somewhat the
+air of a special principle extending beyond the law of bailment,
+inasmuch as their liability extended to goods within the inn, of
+which they had not the custody, and the court may have meant to
+make an antithesis between such a special principle and the
+common law or general law of bailment governing the present case.
+
+Whatever doubts some of Croke's language might raise, standing
+alone, the fact remains indisputable, that for nearly a century
+from Woodlife's Case the liability of carriers for loss of goods,
+whether the custom of the realm or the defendant's common calling
+was alleged or not, was placed upon the authority and was
+intended to be decided on the principle of Southcote's Case.
+
+[191] Symons v. Darknell 1 (4 Car. I., A.D. 1628) is precisely in
+point. The declaration was, that, by the common law, every
+lighterman ought so to manage his lighter that the goods carried
+therein should not perish. "And although no promise laid, it
+seemed to the court that the plaintiff should recover; and not
+alleging that defendant was common lighterman was no harm. Hyde,
+C. J., delivery makes the contract." This did not mean that
+delivery was a good consideration for a promise; but, as was laid
+down in Southcote's Case, that delivery, without a special
+acceptance to keep only as one's own goods, bound the bailee to
+keep safely, and therefore made it unnecessary to allege either
+an assumpsit or the defendant's common calling. Whitlock, J.
+called attention to the fact that the action was tort, not
+contract. "Et en cest case... Southcote's Case fuit cite."
+
+The same rule is stated as to bailments in general, the same
+year, by Sergeant Maynard arguendo in Williams v. Hide, /2/ again
+citing Southcote's Case.
+
+In Kenrig v. Eggleston /3/ (24 Car. I., A.D. 1648), "case against
+a country carrier for not delivering a box," &c., of which he was
+robbed, nothing was said about custom, nor being a common
+carrier, unless the above words imply that he was; but it was
+laid down, as in Southcote's Case, that "it must come on the
+carrier's part acceptance" if he would lessen his liability as
+bailee.
+
+Nichols v. Moore /4/ (13 Car. II., A.D. 1661) was case against a
+"water carrier," between Hull and London, laying a delivery to
+him at York. It was moved in arrest of [192] judgment, that the
+defendant did not undertake to carry the goods from York to Hull.
+"But notwithstanding this per totam curiam, the defendant shall
+be charged on his general receipt at York, according to
+Southcote's Case."
+
+It is fair to mention that in Matthews v. Hopkins /1/ (17 Car.
+II.)the declaration was on the custom of the realm against a
+common carrier, and there was a motion in arrest of judgment,
+because there was a misrecital of the custom of the realm, and
+the defendant was not alleged to have been a carrier at the time
+of the receipt, and also because counts in trover, and in case on
+the custom, were joined. Judgment was arrested, it would seem on
+the latter ground, but the court continued: "And, although the
+declaration may be good without recital of the custom of the
+realm, as Hobart says, still it is the better way to recite it."
+
+We now come to the great case of Morse v. Slue /2/ (23 & 24 Car.
+II., A.D. 1671, 1672). This was an action against the master of a
+ship lying in the river Thames, for the loss of goods intrusted
+to him. The goods in question were taken away by robbers, and it
+was found that the ship had the usual guard at the time. There
+seem to have been two counts, one on the law and custom of
+England (1 Vent. 190), for masters of ships "carefully to govern,
+preserve, and defend goods shipped, so long as said ship should
+remain in the river Thames" (2 Keb. 866); "to keep safely [goods
+shipped to be carried from London beyond sea] without loss or
+subtraction, ita quodpro defectu of them they may not come to any
+damage" (1 Vent. 190); "to keep safely goods delivered to them to
+carry, dangers [193] of the sea excepted" (2 Levinz, 69; the
+exception last was perhaps drawn by the reporter from the usual
+bills of lading referred to in argument). The second count, which
+is usually overlooked, was a special count "on delivery and being
+stolen by his neglect." /1/
+
+The case was twice argued, and all the reports agree, as far as
+they go, in their statements of the points insisted on.
+
+Holt, for the plaintiff, maintained: /2/ 1. That the master
+receives goods generally, citing Southcote's Case, and that in
+"only guardian in socage who hath the custody by law, who factor
+who is servant at the master's dispose, and so cannot take care,
+are exempt." 2. That the master has a reward for his keeping, and
+is therefore a proper person to be sued. 3. That the master has a
+remedy over, citing the case of the Marshal of the King's Bench.
+/3/ That the mischief would be great if the master were not
+liable, as merchants put their trust in him, and no particular
+default be shown, as appears by the bill of lading, and, finally,
+that neglect appeared.
+
+On the other side, it was urged that no neglect was found, and
+that the master was only a servant; so that, if any one was
+liable, the owners were. /4/ It was also suggested that, as there
+would have been no liability if the goods had been taken at sea,
+when the case would have within the admiralty law, it was absurd
+that a different rule should govern the beginning of the voyage
+from would have governed the rest of it. /5/
+
+[194] On the second argument, it was again maintained for the
+plaintiff that the defendant was liable "at the common law on the
+general bailment," citing Southcote's Case, and also that, by the
+Roman and maritime law, he was liable as a public carrier and
+master of a ship.
+
+The opinion of the court was delivered by Chief Justice Hale. It
+was held that, the ship being within the body of the county, the
+admiralty law did not apply; or, according to 1 Mod. 85, note a,
+"the master could not avail himself of the rules of the civil
+law, by which masters are not chargeable pro damno fatali"; that
+the master was liable to an action because he took a reward; that
+"he might have made a caution for himself, which he omitting and
+taking in the goods generally, he shall answer for what happens."
+/1/ The case of Kenrig v. Eggleston /2/ seems also to have been
+referred to. It was further said that the master was rather an
+officer than a servant, and in effect received his wages from the
+merchant who paid freight. Finally, on the question of
+negligence, that it was not sufficient to have the usual number
+of men to guard the ship, but that it was neglect not to have
+enough to guard the goods, unless in case of the common enemies,
+citing the case of the Marshal, which it will be remembered was
+merely the principle of Southcote's Case and the common law of
+bailment in another form. /3/
+
+It will be observed that this case did not go on any special
+custom, either as to common carriers or shipmasters, but that all
+the arguments and the opinion of the court assumed that, if the
+case was to be governed by the common law, and not by the milder
+provisions of the civil [195] law relied on for the defence, and
+if the defendant could be regarded as a bailee, and not merely a
+servant of the owners, then the general law of bailment would
+apply, and the defendant would be charged, as in Southcote's
+Case, "by his general acceptance."
+
+It can hardly be supposed, however, that so enlightened a judge
+as Sir Matthew Hale would not have broken away the Year Books, if
+a case had arisen before him where property had been received as
+a pure favor to the plaintiff, without consideration or reward,
+and was taken from the defendant by robbery. Such a case was
+tried before Chief Justice Pemberton, and he very sensibly ruled
+that no action lay, declining to follow the law of Lord Coke's
+time to such extreme results /1/ (33 Car. II., A.D. 1681).
+
+About the same time, the defendant's common calling began to
+assume a new importance. The more important alternative
+allegation, the assumpsit, had the effect in the end of
+introducing the not intrinsically objectionable doctrine that all
+duties arising from a bailment are founded on contract. /2/ But
+this allegation, having now a special action to which it had
+given rise, was not much used where the action was tort, while
+the other averment occurs with increasing frequency. The notion
+was evidently gaining ground that the liability of common
+carriers for loss of [196] goods, whatever the cause of the loss
+might be, arose from a special principle peculiar to them, and
+not applicable to bailees in general. The confusion of
+independent duties which has been explained, and of which the
+first trace was seen in Rich v. Kneeland, was soon to become
+complete. /1/ Holt became Chief Justice. Three of the cases in
+the last note were rulings of his. In Lane v. Cotton /2/ (13
+Will. III., A.D. 1701), he showed his disapproval of Southcote's
+Case, and his impression that the common law of bailment was
+borrowed from Rome. The overthrow of Southcote's Case and the old
+common law may be said to date from Coggs v. Bernard /3/ (2 Anne,
+A.D. 1703). Lord Holt's famous opinion in the latter case quotes
+largely from the Roman law as it filtered to him through Bracton;
+but, whatever influence that may have had upon his general views,
+the point decided and the distinctions touching common carriers
+were of English growth.
+
+The action did not sound in contract. The cause was for damage to
+the goods, and the plaintiff sued for a tort, laying an assumpsit
+by way of inducement to a charge of negligence, as in the days of
+Henry VI. The plea was not guilty. But after verdict for the
+plaintiff, there was a motion in arrest of judgment, "for that it
+was not alleged in the declaration that the defendant was a
+common porter, nor averred that he had anything for his pains."
+Consideration was never alleged or thought of in the primitive
+assumpsit, but in the modern action of contract in that form [197]
+it was required. Hence, it was inferred that, wherever an
+assumpsit was laid, even in all action of tort for damage to
+property, it was the allegation of a contract, and that a
+consideration must be shown for the undertaking, although the
+contrary had been decided in the reign of Queen Elizabeth. /1/
+But the motion did not prevail, and judgment was given for the
+plaintiff. Lord Holt was well aware that the use of an assumpsit
+was not confined to contract. It is true that he said, "The
+owner's trusting [the defendant] with the goods is a sufficient
+consideration to oblige him to a careful management," or to
+return them; but this means as distinguished from a consideration
+sufficient to oblige him to carry them, which he thought the
+defendant would not have been bound to do. He then expressly
+says, "This is a different case, for assumpsit does not only
+signify a future agreement, but, in such cases as this, it
+signifies an actual entry upon the thing and taking the trust
+upon himself"; following the earlier cases in the Year Books. /2/
+This was enough for the decision, and the rule in Southcote's
+Case had nothing to do with the matter. But as the duty of common
+carriers by reason of their calling was now supposed to extend to
+all kinds of losses, and the doctrine of Southcote's Case was
+probably supposed to extend to many kinds of damage, it became
+necessary, in a general discussion, to reconcile or elect between
+the two principles.
+
+The Chief Justice therefore proceeded to distinguish between
+[198] bailees for reward exercising a public employment, such as
+common carriers, common hoymen, masters of ships, &c., and other
+bailees; denied the rule in Southcote's Case as to the latter;
+said that the principle of strict responsibility was confined to
+the former class, and was applied to them on grounds of public
+policy, and that factors were exonerated, not because they were
+mere servants, as had always been laid down (among others, by
+himself in arguing Morse v. Slue), but because they were not
+within the reason of the rule.
+
+The reader who has followed the argument so far, will hardly need
+to be convinced that this did not mean the adoption of the
+Praetor's Edict. There is further evidence at hand if required.
+
+In the first place, as we have seen, there was a century of
+precedents ending with Morse v. Slue, argued by Holt himself, in
+which the liability of masters of ships, hoymen, carriers, &c.
+had been adjudicated. Morse v. Slue is cited and relied on, and
+there is no hint of dissatisfaction with the other cases. On the
+contrary, they furnished the examples of bailees for reward
+exercising a public calling. The distinction between bailees for
+reward and others is Chief Justice Popham's; the latter
+qualification (exercising a public calling) was also English, as
+has partly appeared already, and as will be explained further on.
+
+In the next place, the strict rule is not confined to nautae,
+caupones, and stabularii, nor even to common carriers; but is
+applied to all bailees for reward, exercising a public calling.
+
+In the next place, the degree of responsibility is precisely that
+of bailees in general, as worked out by the previous decisions;
+but quite unlike and much more severe [199] than that imposed by
+the Roman law, as others have observed. /1/
+
+And, finally, the exemption from liability for acts of God or the
+public enemy is characteristically English, as will be proved
+further on.
+
+But it has been partially shown in this Lecture that the law of
+to-day has made the carrier's burden heavier than it was in the
+time of the Year Books. Southcote's Case, and the earlier
+authorities which have been cited, all refer to a loss by
+robbery, theft, or trespass, and hold the bailee liable, where,
+in theory at least, he has a remedy over. It was with reference
+to such cases, as has been seen, that the rule arose, although it
+is not improbable that it would have been applied to an
+unexplained loss; the writ against innkeepers reads absque
+subtractionie seu amissione custodire. In later times, the
+principle may have been extended from loss by theft to loss by
+destruction. In Symons v. Darknoll /2/ (4 Car. I.), already cited
+as decided on the authority of Southcote's Case, the goods were
+spoiled, not stolen, and probably had not even perished in
+specie. Before this time, the old rule had become an arbitrary
+precedent, followed according to its form with little thought of
+its true intent.
+
+The language of Coggs v. Bernard is, that "the law charges the
+person thus intrusted to carry goods as against all events but
+acts of God and the enemies of the king." This was adopted by
+solemn decision in Lord Mansfield's time, and it is now settled
+that the common carrier "is liable for all losses which do not
+fall within the excepted [200] cases." /1/ That is to say, he has
+become an insurer to that extent, not only against the
+disappearance or destruction, but against all forms of damage to
+the goods except as excepted above.
+
+The process by which this came to pass has been traced above, but
+a few words may be added here. The Year Books, even in dealing
+with the destruction (as distinguished from the conversion) of
+chattels in the hands of a bailee, always state his liability as
+based upon his fault, although it must be admitted that the
+language is used alio intuitu. /2/ A jettison, in tempest, seems
+to have been a good plea for a factor in the time of Edward III.;
+/3/ but that cannot be relied on for an analogy. The argument
+from the Marshal's case /4/ is stronger. There it appears to have
+been thought that burning of the prison was as good an excuse for
+an escape as a release by alien enemies. This must refer to an
+accidental fire, and would seem to imply that he was not liable
+in that event, if not in fault. The writs in the Register against
+bailees to keep or carry goods, all have the general allegation
+of negligence, and so do the older precedents of declarations, so
+far as I have observed, whether stating the custom of the realm
+or not. /5/ But a bailee was answerable for goods wrongfully
+taken from him, as an innkeeper was for goods stolen from his
+inn, irrespective of negligence. /6/
+
+It is true that the Marshal's case speaks of his negligent [201]
+keeping when the prisoners were released by rebels, (although
+that was far less likely to result from negligence, one would
+think, than a fire in the prison,) and that after Lord Coke's
+time negligence was alleged, although the goods had been lost by
+wrongful taking. So the writ against innkeepers is pro defectu
+hujusmodi hospitatorum. In these instances, neglect only means a
+failure de facto to keep safely. As was said at a much later
+date, "everything is a negligence in a carrier or hoyman that the
+law does not excuse." /1/ The allegation is simply the usual
+allegation of actions on the case, and seems to have extended
+itself from the earlier declarations for damage, when case
+supplanted detinue and the use of the former action became
+universal. It can hardly have been immaterial to the case for
+which it was first introduced. But the short reason for
+disbelieving that there was any warrant in the old law for making
+the carrier an insurer against damage is, that there seem to be
+no early cases in which bailees were held to such a
+responsibility, and that it was not within the principle on which
+they were made answerable for a loss by theft.
+
+Having traced the process by which a common carrier has been made
+an insurer, it only remains to say a word upon the origin of the
+admitted exceptions from the risk assumed. It has been seen
+already how loss by the public enemy came to be mentioned by
+Chief Justice Holt. It is the old distinction taken in the
+Marshal's case that there the bailee has no remedy over.
+
+With regard to the act of God, it was a general principle, not
+peculiar to carriers nor to bailees, that a duty was [202]
+discharged if an act of God made it impossible of performance.
+Lord Coke mentions the case of jettison from a Gravesend barge,
+/1/ and another of a party bound to keep and maintain sea-walls
+from overflowing, as subject to the same limitation, /2/ and a
+similar statement as to contracts in general will be found in the
+Year Books. /3/ It is another form of the principle which has
+been laboriously reargued in our own day, that parties are
+excused from the performance of a contract which has become
+impossible before breach from the perishing of the thing, or from
+change of circumstances the continued existence of which was the
+foundation of the contract, provided there was no warranty and no
+fault on the part of the contractor. Whether the act of God has
+now acquired a special meaning with regard to common carriers may
+be left for others to consider.
+
+It appears, from the foregoing evidence, that we cannot determine
+what classes of bailees are subject to the strict responsibility
+imposed on common carriers by referring to the Praetor's Edict
+and then consulting the lexicons under Nautoe, Caupones, or
+Stabularii. The question of precedent is simply to what extent
+the old common law of bailment still survives. We can only answer
+it by enumerating the decisions in which the old law is applied;
+and we shall find it hard to bring them together under a general
+principle. The rule in Southcote's Case has been done away with
+for bailees in general: that is clear. But it is equally clear
+that it has not maintained itself, even within the limits of the
+public policy invented by Chief Justice [203] Holt. It is not
+true to-day that all bailees for reward exercising a public
+calling are insurers. No such doctrine is applied to
+grain-elevators or deposit-vaults. /1/
+
+How Lord Holt came to distinguish between bailees for reward and
+others has been shown above. It is more pertinent here to notice
+that his further qualification, exercising a public calling, was
+part of a protective system which has passed away. One adversely
+inclined might say that it was one of many signs that the law was
+administered in the interest of the upper classes. It has been
+shown above that if a man was a common farrier he could be
+charged for negligence without an assumpsit. The same judge who
+threw out that intimation established in another case that he
+could be sued if he refused to shoe a horse on reasonable
+request. /2/ Common carriers and common innkeepers were liable in
+like case, and Lord Holt stated the principle: "If a man takes
+upon him a public employment, he is bound to serve the public as
+far as the employment extends, and for refusal an action lies."
+/3/ An attempt to apply this doctrine generally at the present
+day would be thought monstrous. But it formed part of a
+consistent scheme for holding those who followed useful callings
+up to the mark. Another part was the liability of persons
+exercising a public employment for loss or damage, enhanced in
+cases of bailment by what remained of the rule in Southcote's
+Case. The scheme has given way to more liberal notions; but the
+disjecta membra still move.
+
+Lord Mansfield stated his views of public policy in terms [204]
+not unlike those used by Chief Justice Holt in Coggs v. Bernard,
+but distinctly confines their application to common carriers.
+"But there is a further degree of responsibility by the custom of
+the realm, that is, by the common law; a carrier is in the nature
+of an insurer.... To prevent litigation, collusion, and the
+necessity of going into circumstances impossible to be
+unravelled, the law presumes against the carrier, unless," &c.
+/1/
+
+At the present day it is assumed that the principle is thus
+confined, and the discussion is transferred to the question who
+are common carriers. It is thus conceded, by implication, that
+Lord Holt's rule has been abandoned. But the trouble is, that
+with it disappear not only the general system which we have seen
+that Lord Holt entertained, but the special reasons repeated by
+Lord Mansfield. Those reasons apply to other bailees as well as
+to common carriers. Besides, hoymen and masters of ships were not
+originally held because they were common carriers, and they were
+all three treated as co-ordinate species, even in Coggs v.
+Bernard, where they were mentioned only as so many instances of
+bailees exercising a public calling. We do not get a new and
+single principle by simply giving a single name to all the cases
+to be accounted for. If there is a sound rule of public policy
+which ought to impose a special responsibility upon common
+carriers, as those words are now understood, and upon no others,
+it has never yet been stated. If, on the other hand, there are
+considerations which apply to a particular class among those so
+designated,--for instance, to railroads, who may have a private
+individual at their mercy, or exercise a power too vast for the
+common welfare,--we do not prove that the [205] reasoning extends
+to a general ship or a public cab by calling all three common
+carriers.
+
+If there is no common rule of policy, and common carriers remain
+a merely empirical exception from general doctrine, courts may
+well hesitate to extend the significance of those words.
+Furthermore, notions of public policy which would not leave
+parties free to make their own bargains are somewhat discredited
+in most departments of the law. /1/ Hence it may perhaps be
+concluded that, if any new case should arise, the degree of
+responsibility, and the validity and interpretation of any
+contract of bailment that there may be, should stand open to
+argument on general principles, and that the matter has been set
+at large so far as early precedent is concerned.
+
+I have treated of the law of carriers at greater length than is
+proportionate, because it seems to me an interesting example of
+the way in which the common law has grown up, and, especially,
+because it is an excellent illustration of the principles laid
+down at the end of the first Lecture. I now proceed to the
+discussion for the sake of which an account of the law of
+bailment was introduced, and to which an understanding of that
+part of the law is a necessary preliminary.
+
+[206]
+
+
+
+
+LECTURE VI. -- POSSESSION.
+
+POSSESSION is a conception which is only less important than
+contract. But the interest attaching to the theory of possession
+does not stop with its practical importance in the body of
+English law. The theory has fallen into the hands of the
+philosophers, and with them has become a corner-stone of more
+than one elaborate structure. It will be a service to sound
+thinking to show that a far more civilized system than the Roman
+is framed upon a plan which is irreconcilable with the a priori
+doctrines of Kant and Hegel. Those doctrines are worked out in
+careful correspondence with German views of Roman law. And most
+of the speculative jurists of Germany, from Savigny to Ihering,
+have been at once professors of Roman law, and profoundly
+influenced if not controlled by some form of Kantian or
+post-Kantian philosophy. Thus everything has combined to give a
+special bent to German speculation, which deprives it of its
+claim to universal authority.
+
+Why is possession protected by the law, when the possessor is not
+also an owner? That is the general problem which has much
+exercised the German mind. Kant, it is well known, was deeply
+influenced in his opinions upon ethics and law by the
+speculations of Rousseau. Kant, Rousseau, and the Massachusetts
+Bill of Rights agree that all men are born free and equal, and
+one or the other branch of that declaration has afforded the
+answer to the [207] question why possession should be protected
+from that day to this. Kant and Hegel start from freedom. The
+freedom of the will, Kant said, is the essence of man. It is an
+end in itself; it is that which needs no further explanation,
+which is absolutely to be respected, and which it is the very end
+and object of all government to realize and affirm. Possession is
+to be protected because a man by taking possession of an object
+has brought it within the sphere of his will. He has extended his
+personality into or over that object. As Hegel would have said,
+possession is the objective realization of free will. And by
+Kant's postulate, the will of any individual thus manifested is
+entitled to absolute respect from every other individual, and can
+only be overcome or set aside by the universal will, that is, by
+the state, acting through its organs, the courts.
+
+Savigny did not follow Kant on this point. He said that every act
+of violence is unlawful, and seemed to consider protection of
+possession a branch of protection to the person. /1/ But to this
+it was answered that possession was protected against disturbance
+by fraud as well as by force, and his view is discredited. Those
+who have been contented with humble grounds of expediency seem to
+have been few in number, and have recanted or are out of favor.
+
+The majority have followed in the direction pointed out by Kant.
+Bruns, an admirable writer, expresses a characteristic yearning
+of the German mind, when he demands an internal juristic
+necessity drawn from the nature of possession itself, and
+therefore rejects empirical reasons. /2/ He finds the necessity
+he seeks in the freedom of the human will, which the whole legal
+system does but recognize [208] and carry out. Constraint of it
+is a wrong, which must be righted without regard to conformity of
+the will to law, and so on in a Kantian vein. /1/ So Gans, a
+favorite disciple of Hegel, "The will is of itself a substantial
+thing to be protected, and this individual will has only to yield
+to the higher common will." /2/ So Puchta, a great master, "The
+will which wills itself, that is, the recognition of its own
+personality, is to be protected." /3/
+
+The chief variation from this view is that of Windscheid, a
+writer now in vogue. He prefers the other branch of the
+declaration in the Bill of Rights. He thinks that the protection
+to possession stands on the same grounds as protection against
+injuria, that every one is the equal of every other in the state,
+and that no one shall raise himself over the other. /4/ Ihering,
+to be sure, a man of genius, took an independent start, and said
+that possession is ownership on the defensive; and that, in favor
+of the owner, he who is exercising ownership in fact (i. e. the
+possessor) is freed from the necessity of proving title against
+one who is in an unlawful position. But to this it was well
+answered by Bruns, in his later work, that it assumes the title
+of disseisors to be generally worse than that of disseisees,
+which cannot be taken for granted, and which probably is not true
+in fact. /5/
+
+It follows from the Kantian doctrine, that a man in possession is
+to be confirmed and maintained in it until he is put out by an
+action brought for the purpose. Perhaps [209] another fact
+besides those which have been mentioned has influenced this
+reasoning, and that is the accurate division between possessory
+and petitory actions or defences in Continental procedure. /1/
+When a defendant in a possessory action is not allowed to set up
+title in himself, a theorist readily finds a mystical importance
+in possession.
+
+But when does a man become entitled to this absolute protection?
+On the principle of Kant, it is not enough that he has the
+custody of a thing. A protection based on the sacredness of man's
+personality requires that the object should have been brought
+within the sphere of that personality, that the free will should
+have unrestrainedly set itself into that object. There must be
+then an intent to appropriate it, that is, to make it part of
+one's self, or one's own.
+
+Here the prevailing view of the Roman law comes in to fortify
+principle with precedent. We are told that, of the many who might
+have the actual charge or custody of a thing, the Roman law
+recognized as possessor only the owner, or one holding as owner
+and on his way to become one by lapse of time. In later days it
+made a few exceptions on practical grounds. But beyond the
+pledgee and the sequester (a receiver appointed by the court)
+these exceptions are unimportant and disputed. /2/ Some of the
+Roman jurists state in terms that depositaries and borrowers have
+not possession of the things intrusted to them. /3/ Whether the
+German interpretation of the sources goes too far or not, it must
+be taken account of in the examination of German theories.
+
+[210] Philosophy by denying possession to bailees in general
+cunningly adjusted itself to the Roman law, and thus put itself
+in a position to claim the authority of that law for the theory
+of which the mode of dealing with bailees was merely a corollary.
+Hence I say that it is important to show that a far more
+developed, more rational, and mightier body of law than the
+Roman, gives no sanction to either premise or conclusion as held
+by Kant and his successors.
+
+In the first place, the English law has always had the good sense
+/1/ to allow title to be set up in defence to a possessory
+action. In the assize of novel disseisin, which which was a true
+possessory action, the defendant could always rely on his title.
+/2/ Even when possession is taken or kept in a way which is
+punished by the criminal law, as in case of forcible entry and
+detainer, proof of title allows the defendant to retain it, and
+in many cases has been held an answer to an action of trespass.
+So in trespass for taking goods the defendant may set up title in
+himself. There might seem to be a trace of the distinction in the
+general rule, that the title cannot be tried in trespass quare
+clausum. But this is an exception commonly put on the ground that
+the judgment cannot change the property, as trespass for chattels
+or trover can. /3/ The rule that you cannot go into title in a
+possessory action presupposes great difficulty in the proof, the
+probatio diabolica of the Canon law, delays in the process, and
+importance of possession [211] ad interim,--all of which mark a
+stage of society which has long been passed. In ninety-nine cases
+out of a hundred, it is about as easy and cheap to prove at least
+a prima facie title as it is to prove possession.
+
+In the next place, and this was the importance of the last
+Lecture to this subject, the common law has always given the
+possessory remedies to all bailees without exception. The right
+to these remedies extends not only to pledgees, lessees, and
+those having a lien, who exclude their bailor, but to simple
+bailees, as they have been called, who have no interest in the
+chattels, no right of detention as against the owner, and neither
+give nor receive a reward. /1/
+
+Modern German statutes have followed in the same path so far as
+to give the possessory remedies to tenants and some others. Bruns
+says, as the spirit of the Kantian theory required him to say,
+that this is a sacrifice of principle to convenience. /2/ But I
+cannot see what is left of a principle which avows itself
+inconsistent with convenience and the actual course of
+legislation. The first call of a theory of law is that it should
+fit the facts. It must explain the observed course of
+legislation. And as it is pretty certain that men will make laws
+which seem to them convenient without troubling themselves very
+much what principles are encountered by their legislation, a
+principle which defies convenience is likely to wait some time
+before it finds itself permanently realized.
+
+It remains, then, to seek for some ground for the protection of
+possession outside the Bill of Rights or the Declaration of
+Independence, which shall be consistent with the larger scope
+given to the conception in modern law.
+
+[212] The courts have said but little on the subject. It was laid
+down in one case that it was an extension of the protection which
+the law throws around the person, and on that ground held that
+trespass quare clausum did not pass to an assignee in bankruptcy.
+/1/ So it has been said, that to deny a bankrupt trover against
+strangers for goods coming to his possession after his bankruptcy
+would be "an invitation to all the world to scramble for the
+possession of them"; and reference was made to "grounds of policy
+and convenience." /2/ I may also refer to the cases of capture,
+some of which will be cited again. In the Greenland
+whale-fishery, by the English custom, if the first striker lost
+his hold on the fish, and it was then killed by another, the
+first had no claim; but he had the whole if he kept fast to the
+whale until it was struck by the other, although it then broke
+from the first harpoon. By the custom in the Gallipagos, on the
+other hand, the first striker had half the whale, although
+control of the line was lost. /3/ Each of these customs has been
+sustained and acted on by the English courts, and Judge Lowell
+has decided in accordance with still a third, which gives the
+whale to the vessel whose iron first remains in it, provided
+claim be made before cutting in. /4/ The ground as put by Lord
+Mansfield is simply that, were it not for such customs, there
+must be a sort of warfare perpetually subsisting between the
+adventurers. /5/ If courts adopt different rules on similar
+facts, according to the point at which men will fight in the
+[213] several cases, it tends, so far as it goes, to shake an a
+priori theory of the matter.
+
+Those who see in the history of law the formal expression of the
+development of society will be apt to think that the proximate
+ground of law must be empirical, even when that ground is the
+fact that a certain ideal or theory of government is generally
+entertained. Law, being a practical thing, must found itself on
+actual forces. It is quite enough, therefore, for the law, that
+man, by an instinct which he shares with the domestic dog, and of
+which the seal gives a most striking example, will not allow
+himself to be dispossessed, either by force or fraud, of what he
+holds, without trying to get it back again. /1/ Philosophy may
+find a hundred reasons to justify the instinct, but it would be
+totally immaterial if it should condemn it and bid us surrender
+without a murmur. As long as the instinct remains, it will be
+more comfortable for the law to satisfy it in an orderly manner,
+than to leave people to themselves. If it should do otherwise, it
+would become a matter for pedagogues, wholly devoid of reality.
+
+I think we are now in a position to begin the analysis of
+possession. It will be instructive to say a word in the first
+place upon a preliminary question which has been debated with
+much zeal in Germany. Is possession a fact or a right? This
+question must be taken to mean, by possession and right, what the
+law means by those words, and not something else which
+philosophers or moralists may mean by them; for as lawyers we
+have nothing to do with either, except in a legal sense. If this
+had always been borne steadily in mind, the question would hardly
+have been asked.
+
+[214] A legal right is nothing but a permission to exercise
+certain natural powers, and upon certain conditions to obtain
+protection, restitution, or compensation by the aid of the public
+force. Just so far as the aid of the public force is given a man,
+he has a legal right, and this right is the same whether his
+claim is founded in righteousness or iniquity. Just so far as
+possession is protected, it is as much a source of legal rights
+as ownership is when it secures the same protection.
+
+Every right is a consequence attached by the law to one or more
+facts which the law defines, and wherever the law gives any one
+special rights not shared by the body of the people, it does so
+on the ground that certain special facts, not true of the rest of
+the world, are true of him. When a group of facts thus singled
+out by the law exists in the case of a given person, he is said
+to be entitled to the corresponding rights; meaning, thereby,
+that the law helps him to constrain his neighbors, or some of
+them, in a way in which it would not, if all the facts in
+question were not true of him. Hence, any word which denotes such
+a group of facts connotes the rights attached to it by way of
+legal consequences, and any word which denotes the rights
+attached to a group of facts connotes the group of facts in like
+manner.
+
+The word "possession" denotes such a group of facts. Hence, when
+we say of a man that he has possession, we affirm directly that
+all the facts of a certain group are true of him, and we convey
+indirectly or by implication that the law will give him the
+advantage of the situation. Contract, or property, or any other
+substantive notion of the law, may be analyzed in the same way,
+and should be treated in the same order. The only difference is,
+that, [215] while possession denotes the facts and connotes the
+consequence, property always, and contract with more uncertainty
+and oscillation, denote the consequence and connote the facts.
+When we say that a man owns a thing, we affirm directly that he
+has the benefit of the consequences attached to a certain group
+of facts, and, by implication, that the facts are true of him.
+The important thing to grasp is, that each of these legal
+compounds, possession, property, and contract, is to be analyzed
+into fact and right, antecedent and consequent, in like manner as
+every other. It is wholly immaterial that one element is accented
+by one word, and the other by the other two. We are not studying
+etymology, but law. There are always two things to be asked:
+first, what are the facts which make up the group in question;
+and then, what are the consequences attached by the law to that
+group. The former generally offers the only difficulties.
+
+Hence, it is almost tautologous to say that the protection which
+the law attaches by way of consequence to possession, is as truly
+a right in a legal sense as those consequences which are attached
+to adverse holding for the period of prescription, or to a
+promise for value or under seal. If the statement is aided by
+dramatic reinforcement, I may add that possessory rights pass by
+descent or devise, as well as by conveyance, /1/ and that they
+are taxed as property in some of the States. /2/
+
+We are now ready to analyze possession as understood by the
+common law. In order to discover the facts which constitute it,
+it will be found best to study them at the moment when possession
+is first gained. For then they must [216] all be present in the
+same way that both consideration and promise must be present at
+the moment of making a contract. But when we turn to the
+continuance of possessory rights, or, as is commonly said, the
+continuance of possession, it will be agreed by all schools that
+less than all the facts required to call those rights into being
+need continue presently true in order to keep them alive.
+
+To gain possession, then, a man must stand in a certain physical
+relation to the object and to the rest of the world, and must
+have a certain intent. These relations and this intent are the
+facts of which we are in search.
+
+The physical relation to others is simply a relation of
+manifested power coextensive with the intent, and will need to
+have but little said about it when the nature of the intent is
+settled. When I come to the latter, I shall not attempt a similar
+analysis to that which has been pursued with regard to intent as
+an element of liability. For the principles developed as to
+intent in that connection have no relation to the present
+subject, and any such analysis so far as it did not fail would be
+little more than a discussion of evidence. The intent inquired
+into here must be overtly manifested, perhaps, but all theories
+of the grounds on which possession is protected would seem to
+agree in leading to the requirement that it should be actual,
+subject, of course, to the necessary limits of legal
+investigation.
+
+But, besides our power and intent as towards our fellow-men,
+there must be a certain degree of power over the object. If there
+were only one other man in the world, and he was safe under lock
+and key in jail, the person having the key would not possess the
+swallows that flew over the prison. This element is illustrated
+by cases of capture, [217] although no doubt the point at which
+the line is drawn is affected by consideration of the degree of
+power obtained as against other people, as well as by that which
+has been gained over the object. The Roman and the common law
+agree that, in general, fresh pursuit of wild animals does not
+give the pursuer the rights of possession. Until escape has been
+made impossible by some means, another may step in and kill or
+catch and carry off the game if he can. Thus it has been held
+that an action does not lie against a person for killing and
+taking a fox which had been pursued by another, and was then
+actually in the view of the person who had originally found,
+started, and chased it. /1/ The Court of Queen's Bench even went
+so far as to decide, notwithstanding a verdict the other way,
+that when fish were nearly surrounded by a seine, with an opening
+of seven fathoms between the ends, at which point boats were
+stationed to frighten them from escaping, they were not reduced
+to possession as against a stranger who rowed in through the
+opening and helped himself. /2/ But the difference between the
+power over the object which is sufficient for possession, and
+that which is not, is clearly one of degree only, and the line
+may be drawn at different places at different times on grounds
+just referred to. Thus we are told that the legislature of New
+York enacted, in 1844, that any one who started and pursued deer
+in certain counties of that State should be deemed in possession
+of the game so long as he continued in fresh pursuit of it, /3/
+and to that extent modified the New York decisions just cited.
+So, while Justinian decided that a wild beast so [218] badly
+wounded that it might easily be taken must be actually taken
+before it belongs to the captors, /1/ Judge Lowell, with equal
+reason, has upheld the contrary custom of the American whalemen
+in the Arctic Ocean, mentioned above, which gives a whale to the
+vessel whose iron first remains in it, provided claim be made
+before cutting in. /2/
+
+We may pass from the physical relation to the object with these
+few examples, because it cannot often come into consideration
+except in the case of living and wild things. And so we come to
+the intent, which is the really troublesome matter. It is just
+here that we find the German jurists unsatisfactory, for reasons
+which I have already explained. The best known theories have been
+framed as theories of the German interpretation of the Roman law,
+under the influence of some form of Kantian or post-Kantian
+philosophy. The type of Roman possession, according to German
+opinion, was that of an owner, or of one on his way to become
+owner. Following this out, it was said by Savigny, the only
+writer on the subject with whom English readers are generally
+acquainted, that the animus domini, or intent to deal with the
+thing as owner, is in general necessary to turn a mere physical
+detention into juridical possession. /3/ We need not stop to
+inquire whether this modern form or the [Greek characters]
+(animus dominantis, animus dominandi) of Theophilus /4/ and the
+Greek sources is more exact; for either excludes, as the
+civilians and canonists do, and as the [219] German theories
+must, most bailees and termors from the list of possessors. /1/
+
+The effect of this exclusion as interpreted by the Kantian
+philosophy of law, has been to lead the German lawyers to
+consider the intent necessary to possession as primarily
+self-regarding. Their philosophy teaches them that a man's
+physical power over an object is protected because he has the
+will to make it his, and it has thus become a part of his very
+self, the external manifestation of his freedom. /2/ The will of
+the possessor being thus conceived as self-regarding, the intent
+with which he must hold is pretty clear: he must hold for his own
+benefit. Furthermore, the self-regarding intent must go to the
+height of an intent to appropriate; for otherwise, it seems to be
+implied, the object would not truly be brought under the
+personality of the possessor.
+
+The grounds for rejecting the criteria of the Roman law have been
+shown above. Let us begin afresh. Legal duties are logically
+antecedent to legal rights. What may be their relation to moral
+rights if there are any, and whether moral rights are not in like
+manner logically the offspring of moral duties, are questions
+which do not concern us here. These are for the philosopher, who
+approaches the law from without as part of a larger series of
+human manifestations. The business of the jurist is to make known
+the content of the law; that is, to work upon it from within, or
+logically, arranging and distributing it, in order, from its
+stemmum genus to its infima species, so far as practicable. Legal
+duties then come before legal [220] rights. To put it more
+broadly, and avoid the word duty, which is open to objection, the
+direct working of the law is to limit freedom of action or choice
+on the part of a greater or less number of persons in certain
+specified ways; while the power of removing or enforcing this
+limitation which is generally confided to certain other private
+persons, or, in other words, a right corresponding to the burden,
+is not a necessary or universal correlative. Again, a large part
+of the advantages enjoyed by one who has a right are not created
+by the law. The law does not enable me to use or abuse this book
+which lies before me. That is a physical power which I have
+without the aid of the law. What the law does is simply to
+prevent other men to a greater or less extent from interfering
+with my use or abuse. And this analysis and example apply to the
+case of possession, as well as to ownership.
+
+Such being the direct working of the law in the case of
+possession, one would think that the animus or intent most nearly
+parallel to its movement would be the intent of which we are in
+search. If what the law does is to exclude others from
+interfering with the object, it would seem that the intent which
+the law should require is an intent to exclude others. I believe
+that such an intent is all that the common law deems needful, and
+that on principle no more should be required.
+
+It may be asked whether this is not simply the animus domini
+looked at from the other side. If it were, it would nevertheless
+be better to look at the front of the shield than at the reverse.
+But it is not the same if we give to the animus domini the
+meaning which the Germans give it, and which denies possession to
+bailees in general. The intent to appropriate or deal with a
+thing as owner can [221] hardly exist without an intent to
+exclude others, and something more; but the latter may very well
+be where there is no intent to hold as owner. A tenant for years
+intends to exclude all persons, including the owner, until the
+end of his term; yet he has not the animus domini in the sense
+explained. Still less has a bailee with a lien, who does not even
+mean to use, but only to detain the thing for payment. But,
+further, the common law protects a bailee against strangers, when
+it would not protect him against the owner, as in the case of a
+deposit or other bailment terminable at pleasure; and we may
+therefore say that the intent even to exclude need not be so
+extensive as would be implied in the animus domini. If a bailee
+intends to exclude strangers to the title, it is enough for
+possession under our law, although he is perfectly ready to give
+the thing up to its owner at any moment; while it is of the
+essence of the German view that the intent must not be relative,
+but an absolute, self-regarding intent to take the benefit of the
+thing. Again, if the motives or wishes, and even the intentions,
+most present to the mind of a possessor, were all self-regarding,
+it would not follow that the intent toward others was not
+the important thing in the analysis of the law. But, as we
+have seen, a depositary is a true possessor under the common-law
+theory, although his intent is not self-regarding, and he holds
+solely for the benefit of the owner.
+
+There is a class of cases besides those of bailees and tenants,
+which will probably, although not necessarily, be decided one way
+or the other, as we adopt the test of an intent to exclude, or of
+the animus domini. Bridges v. Hawkesworth /1/ will serve as a
+starting-point. There, [222] a pocket-book was dropped on the
+floor of a shop by a customer, and picked up by another customer
+before the shopkeeper knew of it. Common-law judges and civilians
+would agree that the finder got possession first, and so could
+keep it as against the shopkeeper. For the shopkeeper, not
+knowing of the thing, could not have the intent to appropriate
+it, and, having invited the public to his shop, he could not have
+the intent to exclude them from it. But suppose the pocket-book
+had been dropped in a private room, how should the case be
+decided? There can be no animus domini unless the thing is known
+of; but an intent to exclude others from it may be contained in
+the larger intent to exclude others from the place where it is,
+without any knowledge of the object's existence.
+
+In McAvoy v. Medina, /1/ a pocket-book had been left upon a
+barber's table, and it was held that the barber had a better
+right than the finder. The opinion is rather obscure. It takes a
+distinction between things voluntarily placed on a table and
+things dropped on the floor, and may possibly go on the ground
+that, when the owner leaves a thing in that way, there is an
+implied request to the shopkeeper to guard it, which will give
+him a better right than one who actually finds it before him.
+This is rather strained, however, and the court perhaps thought
+that the barber had possession as soon as the customer left the
+shop. A little later, in a suit for a reward offered to the
+finder of a pocket-book, brought by one who discovered it where
+the owner had left it, on a desk for the use of customers in a
+bank outside the teller's counter, the same court said that this
+was not the finding of a lost article, and that "the occupants of
+the banking house, and not [223] the plaintiff, were the proper
+depositaries of an article so left." /1/ This language might
+seem to imply that the plaintiff was not the person who got
+possession first after the defendant, and that, although the
+floor of a shop may be likened to a street, the public are to be
+deemed excluded from the shop's desks, counters, and tables
+except for the specific use permitted. Perhaps, however, the case
+only decides that the pocket-book was not lost within the
+condition of the offer.
+
+I should not have thought it safe to draw any conclusion from
+wreck cases in England, which are mixed up with questions of
+prescription and other rights. But the precise point seems to
+have been adjudicated here. For it has been held that, if a stick
+of timber comes ashore on a man's land, he thereby acquires a
+"right of possession" as against an actual finder who enters for
+the purpose of removing it. /2/ A right of possession is said to
+be enough for trespass; but the court seems to have meant
+possession by the phrase, inasmuch as Chief Justice Shaw states
+the question to be which of the parties had "the preferable
+claim, by mere naked possession, without other title," and as
+there does not seem to have been any right of possession in the
+case unless there was actual possession.
+
+In a criminal case, the property in iron taken from the bottom of
+a canal by a stranger was held well laid in the canal company,
+although it does not appear that the company knew of it, or had
+any lien upon it. /3/
+
+[224] The only intent concerning the thing discoverable in such
+instances is the general intent which the occupant of land has to
+exclude the public from the land, and thus, as a consequence, to
+exclude them from what is upon it.
+
+The Roman lawyers would probably have decided all these cases
+differently, although they cannot be supposed to have worked out
+the refined theories which have been built upon their remains.
+/1/
+
+I may here return to the case of goods in a chest delivered under
+lock and key, or in a bale, and the like. It is a rule of the
+criminal law, that, if a bailee of such a chest or bale
+wrongfully sells the entire chest or bale, he does not commit
+larceny, but if he breaks bulk he does, because in the former
+case he does not, and in the latter he does, commit a trespass.
+/2/ The reason sometimes offered is, that, by breaking bulk, the
+bailee determines the bailment, and that the goods at once revest
+in the possession of the bailor. This is, perhaps, an
+unnecessary, as well as inadequate fiction. /3/ The rule comes
+from the Year Books, and the theory of the Year Books was, that,
+although the chest was delivered to the bailee, the goods inside
+of it were not, and this theory was applied to civil as well as
+criminal cases. The bailor has the power and intent to exclude
+the bailee from the goods, and therefore may be said to be in
+possession of them as against the bailee. /4/
+
+[225] On the other hand, a case in Rhode Island /1/ is against
+the view here taken. A man bought a safe, and then, wishing to
+sell it again, sent it to the defendant, and gave him leave to
+keep his books in it until sold. The defendant found some
+bank-notes stuck in a crevice of the safe, which coming to the
+plaintiff's ears he demanded the safe and the money. The
+defendant sent back the safe, but refused to give up the money,
+and the court sustained him in his refusal. I venture to think
+this decision wrong. Nor would my opinion be changed by assuming,
+what the report does not make perfectly clear, that the defendant
+received the safe as bailee, and not as servant or agent, and
+that his permission to use the safe was general. The argument of
+the court goes on the plaintiff's not being a finder. The
+question is whether he need be. It is hard to believe that, if
+the defendant had stolen the bills from the safe while it was in
+the owner's hands, the property could not have been laid in the
+safe-owner, /2/ or that the latter could not have maintained
+trover for them if converted under those circumstances. Sir James
+Stephen seems to have drawn a similar conclusion from Cartwright
+v. Green and Merry v. Green; /3/ but I believe that no warrant
+for it can be found in the cases, and still less for the reason
+suggested.
+
+It will be understood, however, that Durfee v. Jones is perfectly
+consistent with the view here maintained of the [226] general
+nature of the necessary intent, and that it only touches the
+subordinate question, whether the intent to exclude must be
+directed to the specific thing, or may be even unconsciously
+included in a larger intent, as I am inclined to believe.
+
+Thus far, nothing has been said with regard to the custody of
+servants. It is a well-known doctrine of the criminal law, that a
+servant who criminally converts property of his master intrusted
+to him and in his custody as servant, is guilty of theft, because
+he is deemed to have taken the property from his master's
+possession. This is equivalent to saying that a servant, having
+the custody of his master's property as servant, has not
+possession of that property, and it is so stated in the Year
+Books. /1/
+
+The anomalous distinction according to which, if the servant
+receives the thing from another person for his master, the
+servant has the possession, and so cannot commit theft, /2/ is
+made more rational by the old cases. For the distinction taken in
+them is, that, while the servant is in the house or with his
+master, the latter retains possession, but if he delivers his
+horse to his servant to ride to market, or gives him a bag to
+carry to London, then the thing is out of the master's possession
+and in the servant's. /3/ In this more intelligible form, the
+rule would not now prevail. But one half of it, that a guest at a
+tavern has not possession of the plate with which he is served,
+is no doubt still law, [227] for guests in general are likened to
+servants in their legal position. /1/
+
+There are few English decisions, outside the criminal on the
+question whether a servant has possession. But the Year Books do
+not suggest any difference between civil and criminal cases, and
+there is an almost tradition of courts and approved writers that
+he has not, in any case. A master has maintained trespass against
+a servant for converting cloth which he was employed to sell, /2/
+and the American cases go the full length of the old doctrine. It
+has often been remarked that a servant must be distinguished from
+a bailee.
+
+But it may be asked how the denial of possession to servants can
+be made to agree with the test proposed, and it will be said with
+truth that the servant has as much the intent to exclude the
+world at large as a borrower. The law of servants is
+unquestionably at variance with that test; and there can be no
+doubt that those who have built their theories upon the Roman law
+have been led by this fact, coupled with the Roman doctrine as to
+bailees in general, to seek the formula of reconciliation where
+they have. But, in truth, the exception with regard to servants
+stands on purely historical grounds. A servant is denied
+possession, not from any peculiarity of intent with regard to the
+things in his custody, either towards his master or other people,
+by which he is distinguished [228] from a depositary, but simply
+as one of the incidents of his status. It is familiar that the
+status of a servant maintains many marks of the time when he was
+a slave. The liability of the master for his torts is one
+instance. The present is another. A slave's possession was his
+owner's possession on the practical ground of the owner's power
+over him, /1/ and from the fact that the slave had no standing
+before the law. The notion that his personality was merged in
+that of his family head survived the era of emancipation.
+
+I have shown in the first Lecture /2/ that agency arose out of
+the earlier relation in the Roman law, through the extension pro
+hac vice to a freeman of conceptions derived from that source.
+The same is true, I think, of our own law, the later development
+of which seems to have been largely under Roman influence. As
+late as Blackstone, agents appear under the general head of
+servants, and the first precedents cited for the peculiar law of
+agents were cases of master and servant. Blackstone's language is
+worth quoting: "There is yet a fourth species of servants, if
+they may be so called, being rather in a superior, a ministerial
+capacity; such as stewards, factors, and bailiffs: whom, however,
+the law considers as servants pro tempore, with regard to such of
+their acts as affect their master's or employer's property." /3/
+
+[229] It is very true that in modern times many of the effects of
+either relation--master and servant or principal and agent--may
+be accounted for as the result of acts done by the master
+himself. If a man tells another to make a contract in his name,
+or commands him to commit a tort, no special conception is needed
+to explain why he is held; although even in such cases, where the
+intermediate party was a freeman, the conclusion was not reached
+until the law had become somewhat mature. But, if the title
+Agency deserves to stand in the law at all, it must be because
+some peculiar consequences are attached to the fact of the
+relation. If the mere power to bind a principal to an authorized
+contract were all, we might as well have a chapter on ink and
+paper as on agents. But it is not all. Even in the domain of
+contract, we find the striking doctrine that an undisclosed
+principal has the rights as well as the obligations of a known
+contractor,--that he can be sued, and, more remarkable, can sue
+on his agent's contract. The first precedent cited for the
+proposition that a promise to an agent may be laid as a promise
+to the principal, is a case of master and servant. /1/
+
+As my present object is only to show the meaning of the doctrine
+of identification in its bearing upon the theory of possession,
+it would be out of place to consider at any length how far that
+doctrine must be invoked to explain the liability of principals
+for their agents' torts, or whether a more reasonable rule
+governs other cases than that applied where the actor has a
+tolerably defined status as a [230] servant. I allow myself a few
+words, because I shall not be able to return to the subject.
+
+If the liability of a master for the torts of his servant had
+hitherto been recognized by the courts as the decaying remnant of
+an obsolete institution, it would not be surprising to find it
+confined to the cases settled by ancient precedent. But such has
+not been the fact. It has been extended to new relations by
+analogy, /1/ It exists where the principal does not stand in the
+relation of paterfamilias to the actual wrong-doer. /2/ A man may
+be held for another where the relation was of such a transitory
+nature as to exclude the conception of status, as for the
+negligence of another person's servant momentarily acting for the
+defendant, or of a neighbor helping him as a volunteer; /3/ and,
+so far as known, no principal has ever escaped on the ground of
+the dignity of his agent's employment. /4/ The courts habitually
+speak as if the same rules applied to brokers and other agents,
+as to servants properly so called. /5/ Indeed, it [231] has been
+laid down in terms, that the liability of employers is not
+confined to the case of servants, /1/ although the usual cases
+are, of course, those of menial servants, and the like, who could
+not pay a large verdict.
+
+On the other hand, if the peculiar doctrines of agency are
+anomalous, and form, as I believe, the vanishing point of the
+servile status, it may well happen that common sense will refuse
+to carry them out to their furthest applications. Such conflicts
+between tradition and the instinct of justice we may see upon the
+question of identifying a principal who knows the truth with an
+agent who makes a false representation, in order to make out a
+fraud, as in Cornfoot v. Fowke, /2/ or upon that as to the
+liability of a principal for the frauds of his agent discussed in
+many English cases. /3/ But, so long as the fiction which makes
+the root of a master's liability is left alive, it is as hopeless
+to reconcile the differences by logic as to square the circle.
+
+In an article in the American Law Review /4/ I referred [232] to
+an expression of Godefroi with regard to agents; eadem est
+persona domini et procuratoris. /1/ This notion of a fictitious
+unity of person has been pronounced a darkening of counsel in a
+recent useful work. /2/ But it receives the sanction of Sir Henry
+Maine, /3/ and I believe that it must stand as expressing an
+important aspect of the law, if, as I have tried to show, there
+is no adequate and complete explanation of the modern law, except
+by the survival in practice of rules which lost their true
+meaning when the objects of them ceased to be slaves. There is no
+trouble in understanding what is meant by saying that a slave has
+no legal standing, but is absorbed in the family which his master
+represents before the law. The meaning seems equally clear when
+we say that a free servant, in his relations as such, is in many
+respects likened by the law to a slave (not, of course, to his
+own detriment as a freeman). The next step is simply that others
+not servants in a general sense may be treated as if servants in
+a particular connection. This is the progress of ideas as shown
+us by history; and this is what is meant by saying that the
+characteristic feature which justifies agency as a title of the
+law is the absorption pro hac vice of the agent's legal
+individuality in that of his principal.
+
+If this were carried out logically, it would follow that an agent
+constituted to hold possession in his principal's name would not
+be regarded as having the legal possession, or as entitled to
+trespass. But, after what has been said, no opinion can be
+expressed whether the law would go so far, unless it is shown by
+precedent. /4/ The nature of the case [233] will be observed. It
+is that of an agent constituted for the very point and purpose of
+possession. A bailee may be an agent for some other purpose. A
+free servant may be made a bailee. But the bailee holds in his
+own as we say, following the Roman idiom, and the servant or
+agent holding as such does not.
+
+It would hardly be worth while, if space allowed, to search the
+books on this subject, because of the great confusion of language
+to be found in them. It has been said, for instance, in this
+connection, that a carrier is a servant; /1/ while nothing can be
+clearer than that, while goods are in custody, they are in his
+possession. /2/ So where goods remain in the custody of a vendor,
+appropriation to the contract and acceptance have been confounded
+with delivery. /3/ Our law has adopted the Roman doctrine, /4/
+that there may be a delivery, that is, a change of possession, by
+a change in the character in which the vendor holds, but has not
+always imitated the caution of the civilians with regard to what
+amounts to such a change. /5/ Bailees are constantly spoken of as
+if they were agents to possess,--a confusion made [234] easier by
+the fact that they generally are agents for other purposes. Those
+cases which attribute possession to a transferee of goods in the
+hands of a middleman, /1/ without distinguishing whether the
+middleman holds in his own name or the buyer's, are generally
+right in the result, no doubt, but have added to the confusion of
+thought upon the subject.
+
+German writers are a little apt to value a theory of possession
+somewhat in proportion to the breadth of the distinction which it
+draws between juridical possession and actual detention; but,
+from the point of view taken here, it will be seen that the
+grounds for denying possession and the possessory remedies to
+servants and agents holding as such--if, indeed, the latter have
+not those remedies--are merely historical, and that the general
+theory can only take account of the denial as an anomaly. It will
+also be perceived that the ground on which servants and
+depositaries have been often likened to each other, namely, that
+they both hold for the benefit of another and not for themselves,
+is wholly without influence on our law, which has always treated
+depositaries as having possession; and is not the true
+explanation of the Roman doctrine, which did not decide either
+case upon that ground, and which decided each for reasons
+different from those on which it decided the other.
+
+It will now be easy to deal with the question of power as to
+third persons. This is naturally a power coextensive with the
+intent. But we must bear in mind that the law deals only or
+mainly with manifested facts; and hence, when we speak of a power
+to exclude others, we mean no more than a power which so appears
+in its manifestation. [235] A ruffian may be within equal reach
+and sight when a child picks up a pocket-book; but if he does
+nothing, the child has manifested the needful power as well as if
+it had been backed by a hundred policemen. Thus narrowed, it
+might be suggested that the manifestation of is only important as
+a manifestation of intent. But the two things are distinct, and
+the former becomes decisive when there are two contemporaneous
+and conflicting intents. Thus, where two parties, neither having
+title, claimed a crop of corn adversely to each other, and
+cultivated it alternately, and the plaintiff gathered and threw
+it in small piles in the same field, where it lay for a week, and
+then each party simultaneously began to carry it away, it was
+held the plaintiff had not gained possession. /1/ But the first
+interference of the defendant had been after the gathering into
+piles, the plaintiff would probably have recovered. /2/ So where
+trustees possessed of a schoolroom put in a schoolmaster, and he
+was afterwards dismissed, but the next day (June 30) re-entered
+by force; on the fourth of July he was required by notice to
+depart, and was not ejected until the eleventh; it was considered
+that the schoolmaster never got possession as against the
+trustees. /3/
+
+We are led, in this connection, to the subject of the continuance
+of the rights acquired by gaining possession. To gain possession,
+it has been seen, there must be certain physical relations, as
+explained, and a certain intent. It remains to be inquired, how
+far these facts must continue [236] to be presently true of a
+person in order that he may keep the rights which follow from
+their presence. The prevailing view is that of Savigny. He thinks
+that there must be always the same animus as at the moment of
+acquisition, and a constant power to reproduce at will the
+original physical relations to the object. Every one agrees that
+it is not necessary to have always a present power over the
+thing, otherwise one could only possess what was under his hand.
+But it is a question whether we cannot dispense with even more.
+The facts which constitute possession are in their nature capable
+of continuing presently true for a lifetime. Hence there has
+arisen an ambiguity of language which has led to much confusion
+of thought. We use the word "possession," indifferently, to
+signify the presence of all the facts needful to gain it, and
+also the condition of him who, although some of them no longer
+exist, is still protected as if they did. Consequently it has
+been only too easy to treat the cessation of the facts as the
+loss of the right, as some German writers very nearly do. /1/
+
+But it no more follows, from the single circumstance that certain
+facts must concur in order to create the rights incident to
+possession, that they must continue in order to keep those rights
+alive, than it does, from the necessity of a consideration and a
+promise to create a right ex contractu, that the consideration
+and promise must continue moving between the parties until the
+moment of performance. When certain facts have once been made
+manifest which confer a right, there is no general ground on
+which the law need hold the right at an end except the
+manifestation of some fact inconsistent with its continuance,
+[237] the reasons for conferring the particular right have great
+weight in determining what facts shall be to be so. Cessation of
+the original physical relations to the object might be treated as
+such a fact; but it never has been, unless in times of more
+ungoverned violence than the present. On the same principle, it
+is only a question of tradition or policy whether a cessation of
+the power to reproduce the original physical relations shall
+affect the continuance of the rights. It does not stand on the
+same ground as a new possession adversely taken by another. We
+have adopted the Roman law as to animals ferae naturae, but the
+general tendency of our law is to favor appropriation. It abhors
+the absence of proprietary or possessory rights as a kind of
+vacuum. Accordingly, it has been expressly decided, where a man
+found logs afloat and moored them, but they again broke loose and
+floated away, and were found by another, that the first finder
+retained the rights which sprung from his having taken
+possession, and that he could maintain trover against the second
+finder, who refused to give them up. /1/
+
+Suppose that a finder of a purse of gold has left it in his
+country-house, which is lonely and slightly barred, and he is a
+hundred miles away, in prison. The only person within twenty
+miles is a thoroughly equipped burglar at his front door, who has
+seen the purse through a window, and who intends forthwith to
+enter and take it. The finder's power to reproduce his former
+physical relation to the gold is rather limited, yet I believe
+that no one would say that his possession was at an end until the
+burglar, by an overt [238] act, had manifested his power and
+intent to exclude others from the purse. The reason for this is
+the same which has been put with regard to the power to exclude
+at the moment of gaining possession. The law deals, for the most
+part, with overt acts and facts which can be known by the senses.
+So long as the burglar has not taken the purse, he has not
+manifested his intent; and until he breaks through the barrier
+which measures the present possessor's power of excluding him, he
+has not manifested his power. It may be observed further, that,
+according to the tests adopted in this Lecture, the owner of the
+house has a present possession in the strictest sense, because,
+although he has not the power which Savigny says is necessary, he
+has the present intent and power to exclude others.
+
+It is conceivable that the common law should go so far as to deal
+with possession in the same way as a title, and should hold that,
+when it has once been acquired, rights are acquired which
+continue to prevail against all the world but one, until
+something has happened sufficient to divest ownership.
+
+The possession of rights, as it is called, has been a
+fighting-ground for centuries on the Continent. It is not
+uncommon for German writers to go so far as to maintain that
+there may be a true possession of obligations; this seeming to
+accord with a general view that possession and right are in
+theory coextensive terms; that the mastery of the will over an
+external object in general (be that object a thing or another
+will), when in accord with the general will, and consequently
+lawful, is called right, when merely de facto is possession. /1/
+Bearing in mind what was [239] said on the question whether
+possession was a fact or right, it will be seen that such an
+antithesis between possession and right cannot be admitted as a
+legal distinction. The facts constituting possession generate
+rights as truly as do the facts which constitute ownership,
+although the rights a mere possessor are less extensive than
+those of an owner.
+
+Conversely, rights spring from certain facts supposed to be true
+of the person entitled to such rights. Where these facts are of
+such a nature that they can be made successively true of
+different persons, as in the case of the occupation of land, the
+corresponding rights may be successively enjoyed. But when the
+facts are past and gone, such as the giving of a consideration
+and the receiving of a promise, there can be no claim to the
+resulting rights set up by any one except the party of whom the
+facts were originally true--in the case supposed, the original
+contractee,--because no one but the original contractee can fill
+the situation from which they spring.
+
+It will probably be granted by English readers, that one of the
+essential constituent facts consists in a certain relation to a
+material object. But this object may be a slave, as well as a
+horse; /1/ and conceptions originated in this way may be extended
+by a survival to free services. It is noticeable that even Bruns,
+in the application of his theory, does not seem to go beyond
+cases of status and those where, in common language, land is
+bound for the services in question, as it is for rent. Free
+services being [240] so far treated like servile, even by our
+law, that the master has a right of property in them against all
+the world, it is only a question of degree where the line shall
+be drawn. It would be possible to hold that, as one might be in
+possession of a slave without title, so one might have all the
+rights of an owner in free services rendered without contract.
+Perhaps there is something of that sort to be seen when a parent
+recovers for the seduction of a daughter over twenty-one,
+although there is no actual contract of service. /1/ So,
+throughout the whole course of the canon law and in the early law
+of England, rents were regarded as so far a part of the realty as
+to be capable of possession and disseisin, and they could be
+recovered like land by all assize. /2/
+
+But the most important case of the so-called possession of rights
+in our law, as in the Roman, occurs with regard to easements. An
+easement is capable of possession in a certain sense. A man may
+use land in a certain way, with the intent to exclude all others
+from using it in any way inconsistent with his own use, but no
+further. If this be true possession, however, it is a limited
+possession of land, not of a right, as others have shown. But
+where an easement has been actually created, whether by deed or
+prescription, although it is undoubtedly true that any possessor
+of the dominant estate would be protected in its enjoyment, it
+has not been so protected in the past on the ground that the
+easement was in itself an object of possession, but by the
+survival of precedents explained in a later [241] Lecture. Hence,
+to test the existence of a mere possession of this sort which the
+law will protect, we will take the case of a way used de facto
+for four years, but in which no easement has yet been acquired,
+and ask whether the possessor of the quasi dominant tenement
+would be protected in his use as against third persons. It is
+conceivable that he should be, but I believe that he would not.
+/2/
+
+The chief objection to the doctrine seems to be, that there is
+almost a contradiction between the assertions that one man has a
+general power and intent to exclude the world from dealing with
+the land, and that another has the power to use it in a
+particular way, and to exclude the from interfering with that.
+The reconciliation of the two needs somewhat artificial
+reasoning. However, it should be borne in mind that the question
+in every case is not what was the actual power of the parties
+concerned, but what was their manifested power. If the latter
+stood thus balanced, the law might recognize a kind of split
+possession. But if it does not recognize it until a right is
+acquired, then the protection of a disseisor in the use of an
+easement must still be explained by a reference to the facts
+mentioned in the Lecture referred to.
+
+The consequences attached to possession are substantially those
+attached to ownership, subject to the question the continuance of
+possessory rights which I have touched upon above. Even a
+wrongful possessor of a [242] chattel may have full damages for
+its conversion by a stranger to the title, or a return of the
+specific thing. /1/
+
+It has been supposed, to be sure, that a "special property" was
+necessary in order to maintain replevin /2/ or trover. /3/ But
+modern cases establish that possession is sufficient, and an
+examination of the sources of our law proves that special
+property did not mean anything more. It has been shown that the
+procedure for the recovery of chattels lost against one's will,
+described by Bracton, like its predecessor on the Continent, was
+based upon possession. Yet Bracton, in the very passage in which
+he expressly makes that statement, uses a phrase which, but for
+the explanation, would seem to import ownership,--"Poterit rem
+suam petere." /4/ The writs of later days used the same language,
+and when it was objected, as it frequently was, to a suit by a
+bailee for a taking of bona et catalla sua, that it should have
+been for bona in custodia sua existentia, it was always answered
+that those in the Chancery would not frame a writ in that form.
+/5/
+
+The substance of the matter was, that goods in a man's possession
+were his (sua), within the meaning of the writ. But it was very
+natural to attempt a formal reconciliation between that formal
+word and the fact by saying that, although the plaintiff had not
+the general property in the [243] chattels, yet he had a property
+as against strangers, /1/ or a special property. This took place,
+and, curiously enough, two of the earliest instances in which I
+have found the latter phrase used are cases of a depositary, /2/
+and a borrower. /3/ Brooke says that a wrongful taker "has title
+against all but the true owner." /4/ In this sense the special
+property was better described as a "possessory property," as it
+was, in deciding that, in an indictment for larceny, the property
+could be laid in the bailee who suffered the trespass. /5/
+
+I have explained the inversion by which a bailee's right of
+action against third persons was supposed to stand on his
+responsibility over, although in truth it was the foundation of
+that responsibility, and arose simply from his possession. The
+step was short, from saying that bailees could sue because they
+were answerable over, /6/ to saying that they had the property as
+against strangers, or a special property, because they were
+answerable over, /7/ and that they could sue because they had a
+special property and were answerable over. /8/ And thus the
+notion that special property meant something more than
+possession, and was a requisite to maintaining an action, got
+into the law.
+
+The error was made easier by a different use of the phrase in a
+different connection. A bailee was in general liable for goods
+stolen from his custody, whether he had a lien or not. But the
+law was otherwise as to a [244] pledgee, if he had kept the
+pledge with his own goods, and the two were stolen together. /1/
+This distinction was accounted for, at least in Lord Coke's time,
+by saying that the pledge was, in a sense, the pledgee's own,
+that he had a special property in it, and thus that the ordinary
+relation of bailment did not exist, or that the undertaking was
+only to keep as his own goods. /2/ The same expression was used
+in discussing the pledgee's right to assign the pledge, /3/ In
+this sense the term applied only to pledges, but its significance
+in a particular connection was easily carried over into the
+others in which it was used, with the result that the special
+property which was requisite to maintain the possessory actions
+was supposed to mean a qualified interest in the goods.
+
+With regard to the legal consequences of possession, it only
+remains to mention that the rules which have been laid down with
+regard to chattels also prevail with regard to land. For although
+the plaintiff in ejectment must recover on the strength of his
+own title as against a defendant in possession, it is now settled
+that prior possession is enough if the defendant stands on his
+possession alone Possession is of course sufficient for
+trespass.5 And although the early remedy by assize was restricted
+to those who had a technical seisin, this was for reasons which
+do not affect the general theory.
+
+Before closing I must say a word concerning ownership and kindred
+conceptions. Following the order of analysis [245] which has been
+pursued with regard to possession, the first question must be,
+What are the facts to which the rights called ownership are
+attached as a legal consequence? The most familiar mode of
+gaining ownership is by conveyance from the previous owner. But
+that presupposes ownership already existing, and the problem is
+to discover what calls it into being.
+
+One fact which has this effect is first possession. The captor of
+wild animals, or the taker of fish from the ocean, has not merely
+possession, but a title good against all the world. But the most
+common mode of getting an original and independent title is by
+certain proceedings, in court or out of it, adverse to all the
+world. At one extreme of these is the proceeding in rem of the
+admiralty, which conclusively disposes of the property in its
+power, and, when it sells or condemns it, does not deal with this
+or that man's title, but gives a new title paramount to all
+previous interests, whatsoever they may be. The other and more
+familiar case is prescription, where a public adverse holding for
+a certain time has a similar effect. A title by prescription is
+not a presumed conveyance from this or owner alone, it
+extinguishes all previous and inconsistent claims. The two
+coalesce in the ancient fine with proclamations where the
+combined effect of the judgment and the lapse of a year and a day
+was to bar claims. /1/
+
+So rights analogous to those of ownership may be given by the
+legislature to persons of whom some other set of facts is true.
+For instance, a patentee, or one to whom the government has
+issued a certain instrument, and who in fact has made a
+patentable invention.
+
+[246] But what are the rights of ownership? They are
+substantially the same as those incident to possession. Within
+the limits prescribed by policy, the owner is allowed to exercise
+his natural powers over the subject-matter uninterfered with, and
+is more or less protected in excluding other people from such
+interference. The owner is allowed to exclude all, and is
+accountable to no one. The possessor is allowed to exclude all
+but one, and is accountable to no one but him. The great body of
+questions which have made the subject of property so large and
+important are questions of conveyancing, not necessarily or
+generally dependent on ownership as distinguished from
+possession. They are questions of the effect of not having an
+independent and original title, but of coming in under a title
+already in existence, or of the modes in which an original title
+can be cut up among those who come in under it. These questions
+will be dealt with and explained where they belong, in the
+Lectures on Successions.
+
+[247]
+
+
+
+
+LECTURE VII. -- CONTRACT.--I. HISTORY.
+
+The doctrine of contract has been so thoroughly remodelled to
+meet the needs of modern times, that there is less here than
+elsewhere for historical research. It has been so ably discussed
+that there is less room here elsewhere for essentially new
+analysis. But a short of the growth of modern doctrines, whether
+necessary or not, will at least be interesting, while an analysis
+of their main characteristics cannot be omitted, and may present
+some new features.
+
+It is popularly supposed that the oldest forms of contract known
+to our law are covenant and debt, and they are of early date, no
+doubt. But there are other contracts still in use which, although
+they have in some degree put on modern forms, at least suggest
+the question whether they were not of equally early appearance.
+
+One of these, the promissory oath, is no longer the foundation of
+any rights in private law. It is used, but as mainly as a
+solemnity connected with entering upon a public office. The judge
+swears that he will execute justice according to law, the juryman
+that he will find his verdict according to law and the evidence,
+the newly adopted citizen that he will bear true faith and
+allegiance to the government of his choice.
+
+But there is another contract which plays a more important part.
+It may, perhaps, sound paradoxical to mention [248] the contract
+of suretyship. Suretyship, nowadays, is only an accessory
+obligation, which presupposes a principal undertaking, and which,
+so far as the nature of the contract goes, is just like any
+other. But, as has been pointed out by Laferriere, /1/ and very
+likely by earlier writers, the surety of ancient law was the
+hostage, and the giving of hostages was by no means confined to
+international dealings.
+
+In the old metrical romance of Huon of Bordeaux, Huon, having
+killed the son of Charlemagne, is required by the Emperor to
+perform various seeming impossibilities as the price of
+forgiveness. Huon starts upon the task, leaving twelve of his
+knights as hostages. /2/ He returns successful, but at first the
+Emperor is made to believe that his orders have been disobeyed.
+Thereupon Charlemagne cries out, "I summon hither the pledges for
+Huon. I will hang them, and they shall have no ransom." /3/ So,
+when Huon is to fight a duel, by way of establishing the truth or
+falsehood of a charge against him, each party begins by producing
+some of his friends as hostages.
+
+When hostages are given for a duel which is to determine the
+truth or falsehood of an accusation, the transaction is very near
+to the giving of similar security in the trial of a cause in
+court. This was in fact the usual course of the Germanic
+procedure. It will be remembered that the earliest appearance of
+law was as a substitute for the private feuds between families or
+clans. But while a defendant who did not peaceably submit to the
+jurisdiction of the court might be put outside the protection of
+the law, so that any man might kill him at sight, there was at
+first [249] no way of securing the indemnity to which the
+plaintiff was entitled unless the defendant chose to give such
+security. /1/
+
+English customs which have been preserved to us are somewhat more
+advanced, but one of the noticeable features in their procedure
+is the giving of security at every step. All lawyers will
+remember a trace of this in the fiction of John Doe and Richard
+Roe, the plaintiff's pledges to prosecute his action. But a more
+significant example is found in the rule repeated in many of the
+early laws, that a defendant accused of a wrong must either find
+security or go to prison. /2/ This security was the hostage of
+earlier days, and later, when the actions for punishment and for
+redress were separated from each other, became the bail of the
+criminal law. The liability was still conceived in the same way
+as when the bail actually put his own body into the power of the
+party secured.
+
+One of Charlemagne's additions to the Lex Salica speaks of a
+freeman who has committed himself to the power of another by way
+of surety. /3/ The very phrase is copied in the English laws of
+Henry I. /4/ We have seen what this meant in the story of Huon of
+Bordeaux. The Mirror of Justices /5/ says that King Canute used
+to judge the mainprisors according as the principals when their
+principals not in judgment, but that King Henry I. confined
+Canute's rule to mainprisors who were consenting to the fact.
+
+As late as the reign of Edward III., Shard, an English judge,
+after stating the law as it still is, that bail are a prisoner's
+[250] keepers, and shall be charged if he escapes, observes, that
+some say that the bail shall be hanged in his place. /1/ This was
+the law in the analogous case of a jailer. /2/ The old notion is
+to be traced in the form still given by modern writers for the
+undertaking of bail for felony. They are bound "body for body,"
+/3/ and modern law-books find it necessary to state that this
+does not make them liable to the punishment of the principal
+offender if he does not appear, but only to a fine. /4/ The
+contract also differed from our modern ideas in the mode of
+execution. It was simply a solemn admission of liability in the
+presence of the officer authorized to take it. The signature of
+the bail was not necessary, /5/ and it was not requisite that the
+person bailed should bind himself as a party. /6/
+
+But these peculiarities have been modified or done away with by
+statute, and I have dwelt upon the case, not so much as a special
+form of contract differing from all others as because the history
+of its origin shows one of the first appearances of contract in
+our law. It is to be traced to the gradual increase of faith in
+the honor of a hostage if the case calling for his surrender
+should arrive, and to the consequent relaxation of actual
+imprisonment. An illustration may be found in the parallel mode
+of dealing with the prisoner himself. His bail, to whom his body
+is supposed to be delivered, have a right to seize him at any
+time and anywhere, but he is allowed to go at large until [251]
+surrendered. It will be noticed that this form of contract, like
+debt as dealt with by the Roman law of the Twelve Tables, and for
+the same motive, although by a different process, looked to the
+body of the contracting party as the satisfaction.
+
+Debt is another and more popular candidate for the honors of
+priority. Since the time of Savigny, the first appearance of
+contract both in Roman and German law has often been attributed
+to the case of a sale by some accident remaining incomplete. The
+question does not seem to be of great philosophical significance.
+For to explain how mankind first learned to promise, we must go
+to metaphysics, and find out how it ever came to frame a future
+tense. The nature of the particular promise which was first
+enforced in a given system can hardly lead to any truth of
+general importance. But the history of the action of debt is
+instructive, although in a humbler way. It is necessary to know
+something about it in order to understand the enlightened rules
+which make up the law of contract at the present time.
+
+In Glanvill's treatise the action of debt is found already to be
+one of the well-known remedies. But the law of those days was
+still in a somewhat primitive state, and it will easily be
+imagined that a form of action which goes back as far as that was
+not founded on any very delicate discriminations. It was, as I
+shall try to show directly, simply the general form in which any
+money claim was collected, except unliquidated claims for damages
+by force, for which there was established the equally general
+remedy of trespass.
+
+It has been thought that the action was adopted from the then
+more civilized procedure of the Roman law. A [252] natural
+opinion, seeing that all the early English law-writers adopt
+their phraseology and classification from Rome. Still it seems
+much more probable that the action is of pure German descent. It
+has the features of the primitive procedure which is found upon
+the Continent, as described by Laband. /1/
+
+The substance of the plaintiff's claim as set forth in the writ
+of debt is that the defendant owes him so much and wrongfully
+withholds it. It does not matter, for a claim framed like that,
+how the defendant's duty arises. It is not confined to contract.
+It is satisfied if there is a duty to pay on any ground. It
+states a mere conclusion of law, not the facts upon which that
+conclusion is based, and from which the liability arises. The old
+German complaint was, in like manner, "A owes me so much."
+
+It was characteristic of the German procedure that the defendant
+could meet that complaint by answering, in an equally general
+form, that he did not owe the plaintiff. The plaintiff had to do
+more than simply allege a debt, if he would prevent the defendant
+from escaping in that way. In England, if the plaintiff had not
+something to show for his debt, the defendant's denial turned him
+out of court; and even if he had, he was liable to be defeated by
+the defendant's swearing with some of his friends to back him
+that he owed nothing. The chief reason why debt was supplanted
+for centuries by a later remedy, assumpsit, was the survival of
+this relic of early days.
+
+Finally, in England as in Germany, debt for the detention of
+money was the twin brother of the action brought for wrongfully
+withholding any other kind of chattel. The gist of the complaint
+in either case was the same.
+
+It seems strange that this crude product of the infancy of law
+should have any importance for us at the present time. Yet
+whenever we trace a leading doctrine of substantive law far
+enough back, we are very likely to find some forgotten
+circumstance of procedure at its source. Illustrations of this
+truth have been given already. The action of debt and the other
+actions of contract will furnish others. Debt throws most light
+upon the doctrine of consideration.
+
+Our law does not enforce every promise which a man may make.
+Promises made as ninety-nine promises out of a hundred are, by
+word of mouth or simple writing, are not binding unless there is
+a consideration for them. That is, as it is commonly explained,
+unless the promisee has either conferred a benefit on the
+promisor, or incurred a detriment, as the inducement to the
+promise.
+
+It has been thought that this rule was borrowed from Roman law by
+the Chancery, and, after undergoing some modification there,
+passed into the common law.
+
+But this account of the matter is at least questionable. So far
+as the use of words goes, I am not aware that consideration is
+distinctly called cause before the reign of Elizabeth; in the
+earlier reports it always appears as quid pro quo. Its first
+appearance, so far as I know, is in Fleta's account of the action
+of debt, /1/ and although I am inclined to believe that Fleta's
+statement is not to be trusted, a careful consideration of the
+chronological order of the cases in the Year Books will show, I
+think, that the doctrine was fully developed in debt before any
+mention of it in equity can be found. One of the earliest [254]
+references to what a promisor was to have for his undertaking was
+in the action of assumpsit. /1/ But the doctrine certainly did
+not originate there. The first mention of consideration in
+connection with equity which I have seen is in the form of quid
+pro quo, /2/ and occurs after the requirement had been thoroughly
+established in debt. /3/
+
+The single fact that a consideration was never required for
+contracts under seal, unless Fleta is to be trusted against the
+great weight of nearly contemporaneous evidence, goes far to show
+that the rule cannot have originated on grounds of policy as a
+rule of substantive law. And conversely, the coincidence of the
+doctrine with a peculiar mode of procedure points very strongly
+to the probability that the peculiar requirement and the peculiar
+procedure were connected. It will throw light on the question to
+put together a few undisputed facts, and to consider what
+consequences naturally followed. It will therefore be desirable
+to examine the action of debt a little further. But it is only
+fair to admit, at the outset, that I offer the explanation which
+follows with great hesitation, and, I think, with a full
+appreciation of the objections which might be urged.
+
+It was observed a moment ago, that, in order to recover against a
+defendant who denied his debt, the plaintiff had to show
+something for it; otherwise he was turned over to the limited
+jurisdiction of the spiritual tribunals. /4/ This requirement did
+not mean evidence in the modern sense. It meant simply that he
+must maintain his cause in one of the ways then recognized by
+law. These were three, the [255] duel, a writing, and witnesses.
+The duel need not be discussed, as it soon ceased to be used in
+debt, and has no bearing on what I have to say. Trial by writing
+and by witnesses, on the other hand, must both be carefully
+studied. It will be convenient to consider the latter first and
+to find out what these witnesses were.
+
+One thing we know at the start; they were not witnesses as we
+understand the term. They were not produced before a jury for
+examination and cross-examination, nor did their testimony
+depend for its effect on being believed by the court that heard
+it. Nowadays, a case is not decided by the evidence, but by a
+verdict, or a finding of facts, followed by a judgment. The oath
+of a witness has no effect unless it is believed. But in the time
+of Henry II. our trial by jury did not exist. When an oath was
+allowed to be sworn it had the same effect, whether it was
+believed or not. There was no provision for sifting it by a
+second body. In those cases where a trial by witnesses was
+possible, if the party called on to go forward could find a
+certain number of men who were willing to swear in a certain
+form, there was an end of the matter.
+
+Now this seems like a more primitive way of establishing a debt
+than the production of the defendant's written acknowledgement,
+and it is material to discover its origin.
+
+The cases in which this mode of trial was used appear from the
+early books and reports to have been almost wholly confined to
+claims arising out of a sale or loan. And the question at once
+occurs, whether we are not upon traces of an institution which
+was already ancient when Glanvill wrote. For centuries before the
+Conquest Anglo-Saxon law /1/ had required the election of a
+certain [256] number of official witnesses, two or three of whom
+were to be called in to every bargain of sale. The object for
+which these witnesses were established is not commonly supposed
+to have been the proof of debts. They go back to a time when
+theft and similar offences were the chief ground of litigation,
+and the purpose for which they were appointed was to afford a
+means of deciding whether a person charged with having stolen
+property had come by it rightfully or not. A defendant could
+clear himself of the felony by their oath that he had bought or
+received the thing openly in the way appointed by law.
+
+Having been present at the bargain, the witnesses were able to
+swear to what they had seen and heard, if any question arose
+between the parties. Accordingly, their use was not confined to
+disposing of a charge of felony. But that particular service
+identifies the transaction witnesses of the Saxon period. Now we
+know that the use of these witnesses did not at once disappear
+under Norman influence. They are found with their old function in
+the laws of William the Conqueror. /1/ The language of Glanvill
+seems to prove that they were still known under Henry II. He says
+that, if a purchaser cannot summon in the man from whom he
+bought, to warrant the property to him and defend the suit, (for
+if he does, the peril is shifted to the seller,) then if the
+purchaser has sufficient proof of his having lawfully bought the
+thing, de legittimo marcatu suo, it will clear him of felony. But
+if he have not sufficient suit, he will be in danger. /2/ This is
+the law of William over again. It follows that purchasers still
+used the transaction witnesses.
+
+But Glanvill also seems to admit the use of witness to establish
+debts. /1/ As the transaction witnesses were formerly available
+for this purpose, I see no reason to doubt that they still were,
+and that he is speaking of them here also. /2/ Moreover, for a
+long time after Henry II., whenever an action was brought for a
+debt of which there was no written evidence, the plaintiff, when
+asked what he had to show for it, always answered "good suit,"
+and tendered his witnesses, who were sometimes examined by the
+court. /3/ I think it is not straining the evidence to infer that
+the "good suit" of the later reports was the descendant of the
+Saxon transaction witnesses, as it has been shown that Glanvill's
+secta was. /4/
+
+Assuming this step in the argument to have been taken, it will be
+well to recall again for a moment the original nature of the
+witness oath. It was confined to facts within the witnesses'
+knowledge by sight and hearing. But as the purposes for which
+witnesses were provided only required their presence when
+property changed hands, the principal case in which they could be
+of service between the parties [258] to a bargain was when a debt
+was claimed by reason of the delivery of property. The purpose
+did not extend to agreements which were executory on both sides,
+because there no question of theft could arise. And Glanvill
+shows that in his time the King's Court did not enforce such
+agreements. /1/ Now, if the oath of the secta could only be used
+to establish a debt where the transaction witnesses could have
+sworn, it will be seen, readily enough, how an accident of
+procedure may have led to a most important rule of substantive
+law.
+
+The rule that witnesses could only swear to facts within their
+knowledge, coupled with the accident that these witnesses were
+not used in transactions which might create a debt, except for a
+particular fact, namely, the delivery of property, together with
+the further accident that this delivery was quid pro quo, was
+equivalent to the rule that, when a debt was proved by witnesses
+there must be quid pro quo. But these debts proved by witnesses,
+instead of by deed are what we call simple contract debts, and
+thus beginning with debt, and subsequently extending itself to
+other contracts, is established our peculiar and most important
+doctrine that every simple contract must have a consideration.
+This was never the law as to debts or contracts proved in the
+usual way by the defendant's seal, and the fact that it applied
+only to obligations which were formerly established by a
+procedure of limited use, [259] goes far to show that the
+connection with procedure was not accidental.
+
+The mode of proof soon changed, but as late as the reign of Queen
+Elizabeth we find a trace of this original connection. It is
+said, "But the common law requires that there should be a new
+cause (i. e. consideration), whereof the country may have
+intelligence or knowledge for the trial of it, if need be, so
+that it is necessary for the Public-weal." /1/ Lord Mansfield
+showed his intuition of the historical grounds of our law when he
+said, "I take it that the ancient notion about the want of
+consideration was for the sake of evidence only; for when it is
+reduced into writing, as in covenants, specialties, bonds, etc.,
+there was no objection to the want of consideration." /2/
+
+If it should be objected that the preceding argument is
+necessarily confined to debt, whereas the requirement of
+consideration applies equally to all simple contracts, the answer
+is, that in all probability the rule originated with debt, and
+spread from debt to other contracts.
+
+But, again, it may be asked whether there were no other contracts
+proved by witness except those which have been mentioned. Were
+there no contracts proved in that way to which the accidental
+consideration was wanting? To this also there is an easy answer.
+The contracts enforced by the civil courts, even as late as Henry
+II., were few and simple. The witness procedure was no doubt
+broad enough for all the contracts which were made in early
+times. Besides those of sale, loan, and the like, which have been
+mentioned, I find but two contractual [260] obligations. These
+were the warranties accompanying a sale and suretyship which was
+referred to at the beginning of the Lecture. Of the former,
+warranty of title was rather regarded as an obligation raised by
+the law out of the relation of buyer and seller than as a
+contract. Other express warranties were matters within the
+knowledge of the transaction witnesses, and were sworn to by them
+in Saxon times. /1/
+
+But in the Norman period warranty is very little heard of, except
+with regard to land, and then it was decided by the duel. It so
+wholly disappeared, except where it was embodied in a deed, that
+it can have had no influence upon the law of consideration. I
+shall therefore assume, without more detail, that it does not
+bear upon the case.
+
+Then as to the pledge or surety. He no longer paid with his body,
+unless in very exceptional cases, but his liability was
+translated into money, and enforced in an action of debt. This
+time-honored contract, like the other debts of Glanvill's time,
+could be established by witness without a writing, /2/ and in
+this case there was not such a consideration, such a benefit to
+the promisor, as the law required when the doctrine was first
+enunciated. But this also is unimportant, because his liability
+on the oath of witness came to an end, as well as that of the
+warrantor, before the foundations were laid for the rule which I
+am seeking to explain. A writing soon came to be required, as
+will be seen in a moment.
+
+The result so far is, that the only action of contract in
+Glanvill's time was debt, that the only debts recovered [261]
+without writing were those which have been described, and that
+the only one of these for which there was not quid pro quo ceased
+to be recoverable in that way by the reign of Edward III.
+
+But great changes were beginning in the reign of Henry II. More
+various and complex contracts soon came to be enforced. It may be
+asked, Why was not the scope of the witness oath enlarged, or, if
+any better proof were forthcoming, why was not the secta done
+away with, and other oral testimony admitted? In any event, what
+can the law of Henry II.'s time have to do with consideration,
+which not heard of until centuries later?
+
+It is manifest that a witness oath, which disposes of a case by
+the simple fact that it is sworn, is not a satisfactory mode of
+proof. A written admission of debt produced in court, and
+sufficiently identified as issuing from the defendant, is
+obviously much better. The only weak point about a writing is the
+means of identifying it as the defendant's, and this difficulty
+disappeared as soon as the use of seals became common. This had
+more or less taken place in Glanvill's time, and then all that a
+party had to do was to produce the writing and satisfy the court
+by inspection that the impression on the wax fitted his
+opponent's seal. /1/ The oath of the secta could always be
+successfully met by wager of law, /2/ that is, by a counter oath
+the part of the defendant, with the same or double the number of
+fellow-swearers produced by the plaintiff. But a writing proved
+to be the defendant's could not be contradicted. [262] /1/ For if
+a man said he was bound, he was bound. There was no question of
+consideration, because there was as yet no such doctrine. He was
+equally bound if he acknowledged all obligation in any place
+having a record, such as the superior courts, by which his
+acknowledgment could be proved. Indeed, to this day some
+securities are taken simply by an oral admission before the clerk
+of a court noted by him in his papers. The advantage of the
+writing was not only that it furnished better proof in the old
+cases, but also that it made it possible to enforce obligations
+for which there would otherwise have been no proof at all.
+
+What has been said sufficiently explains the preference of proof
+by writing to proof by the old-fashioned witness oath. But there
+were other equally good reasons why the latter should not be
+extended beyond its ancient limits. The transaction witnesses
+were losing their statutory and official character. Already in
+Glanvill's time the usual modes of proving a debt were by the
+duel or by writing. /2/ A hundred years later Bracton shows that
+the secta had degenerated to the retainers and household of the
+party, and he says that their oath raises but a slight
+presumption. /3/
+
+Moreover, a new mode of trial was growing up, which, although it
+was not made use of in these cases /4/ for a good while, must
+have tended to diminish the estimate set on the witness oath by
+contrast. This was the beginning of our trial by jury. It was at
+first an inquest of the neighbors [263] most likely to know about
+a disputed matter of fact. They spoke from their own knowledge,
+but they were selected by an officer of the court instead of by
+the interested party, and were intended to be impartial. /1/ Soon
+witnesses were summoned before them, not, as of old, to the case
+by their oath, but to aid the inquest to find a verdict by their
+testimony. With the advent of this enlightened procedure, the
+secta soon ceased to decide the case, and it may well be asked
+why it did not disappear and leave no traces.
+
+Taking into account the conservatism of the English law, and the
+fact that, before deeds came in, the only debts for which there
+had been a remedy were debts proved by the transaction witnesses,
+it would not have been a surprise to find the tender of suit
+persisting in those cases. But there was another reason still
+more imperative. The defence in debt where there was no deed was
+by wager of law. /2/ A section of Magna Charta was interpreted to
+prohibit a man's being put to his law on the plaintiff's own
+statement without good witness. /3/ Hence, the statute required
+witness--that is, the secta--in every case of debt where the
+plaintiff did not rely upon a writing. Thus it happened that suit
+continued to be tendered in those cases where it had been of old,
+/4/ and as the defendant, if he did not admit the debt in such
+cases, always waged his law, it was long before the inquest got
+much foothold.
+
+To establish a debt which arose merely by way of promise or
+acknowledgment, and for which there had formerly [264] been no
+mode of trial provided, you must have a writing, the new form of
+proof which introduced it into the law. The rule was laid down,
+"by parol the party is not obliged." /1/ But the old debts were
+not conceived of as raised by a promise. /2/ They were a "duty"
+springing from the plaintiff's receipt of property, a fact which
+could be seen and sworn to. In these cases the old law maintained
+and even extended itself a little by strict analogy.
+
+But the undertaking of a surety, in whatever form it was clothed,
+did not really arise out of any such fact. It had become of the
+same nature as other promises, and it was soon doubted whether it
+should not be proved by the same evidence. /3/ By the reign of
+Edward III., it was settled that a deed was necessary, /4/ except
+where the customs of particular cities had kept the old law in
+force. /5/
+
+This reign may be taken as representing the time when the
+divisions and rules of procedure were established which have
+lasted until the present day. It is therefore worth while to
+repeat and sum up the condition of the law at that time.
+
+It was still necessary that the secta should be tendered in every
+action of debt for which no writing was produced. For this, as
+well as for the other reasons which have been mentioned, the
+sphere of such actions was not materially enlarged beyond those
+cases which had formerly been established by the witness-oath.
+As suretyship was no [265] longer one of these, they became
+strictly limited to cases in which the debt arose from the
+receipt of a quid pro quo. Moreover there was no other action of
+contract which could be maintained without a writing. New species
+of contracts were now enforced by an action of covenant, but
+there a deed was always necessary. At the same time the secta had
+shrunk to a form, although it was still argued that its function
+was more important in contract than elsewhere. It could no longer
+be examined before the court. /1/ It was a mere survival, and the
+transaction witness had ceased to be an institution. Hence, the
+necessity of tendering the witness oath did not fix the limit of
+debt upon simple contract except by tradition, and it is not
+surprising to find that the action was slightly extended by
+analogy from its scope in Glanvill's time.
+
+But debt remained substantially at the point which I have
+indicated, and no new action available for simple contracts was
+introduced for a century. In the mean time the inversion which I
+have explained took place, and what was an accident of procedure
+had become a doctrine of substantive law. The change was easy
+when the debts which could be enforced without deed all sprung
+from a benefit to the debtor.
+
+The influence of the Roman law, no doubt, aided in bringing about
+this result. It will be remembered that in the reign of Henry II.
+most simple contracts and debts for which there was not the
+evidence of deed or witness were left to be enforced by the
+ecclesiastical courts, so far as their jurisdiction extended. /2/
+Perhaps it was this circumstance [266] which led Glanvill and his
+successors to apply the terminology of the civilians to
+common-law debts. But whether he borrowed it from the
+ecclesiastical courts, or went directly to the fountain-head,
+certain it is that Glanvill makes use of the classification and
+technical language of the Corpus Juris throughout his tenth book.
+
+There were certain special contracts in the Roman system called
+real, which bound the contractor either to return a certain thing
+put into his hands by the contractee, as in a case of lease or
+loan, or to deliver other articles of the same kind, as when
+grain, oil, or money was lent. This class did not correspond,
+except in the most superficial way, with the common-law debts.
+But Glanvill adopted the nomenclature, and later writers began to
+draw conclusions from it. The author of Fleta, a writer by no
+means always intelligent in following and adopting his
+predecessors' use of the Roman law, /1/ says that to raise a debt
+there must be not only a certain thing promised, but a certain
+thing promised in return. /2/
+
+If Fleta had confined his statement to debts by simple contract,
+it might well have been suggested by the existing state of the
+law. But as he also required a writing and a seal, in addition to
+the matter given or promised in return, the doctrine laid down by
+him can hardly have prevailed at any time. It was probably
+nothing more than a slight vagary of reasoning based upon the
+Roman elements which he borrowed from Bracton.
+
+[267] It only remains to trace the gradual appearance of
+consideration in the decisions. A case of the reign of Edward
+III. /1/ seems to distinguish between a parol obligation founded
+on voluntary payments by the obligee and one founded on a payment
+at the obligor's request. It also speaks of the debt or "duty" in
+that case as arising by cause of payments. Somewhat similar
+language is used in the next reign. /2/ So, in the twelfth year
+of Henry IV., /3/ there is an approach to the thought: "If money
+is promised to a man for making a release, and he makes the
+release, he will have a good action of debt in the matter." In
+the next reign /4/ it was decided that, in such a case, the
+plaintiff could not recover without having executed the release,
+which is explained by the editor on the ground that ex nudo pacto
+non oritur actio. But the most important fact is, that from
+Edward I. to Henry VI. we find no case where a debt was
+recovered, unless a consideration had in fact been received.
+
+Another fact to be noticed is, that since Edward III. debts
+arising from a transaction without writing are said to arise from
+contract, as distinguished from debts arising from an obligation.
+/5/ Hence, when consideration was required as such, it was
+required in contracts not under seal, whether debts or not. Under
+Henry VI. quid pro quo became a necessity in all such contracts.
+In the third year of that reign /6/ it was objected to au action
+upon an [268] assumpsit for not building a mill, that it was not
+shown what the defendant was to have for doing it. In the
+thirty-sixth year of the same reign (A.D. 1459), the doctrine
+appears full grown, and is assumed to be familiar. /1/
+
+The case turned upon a question which was debated for centuries
+before it was settled, whether debt would lie for a sum of money
+promised by the defendant to the plaintiff if he would marry the
+defendant's daughter. But whereas formerly the debate had been
+whether the promise was not so far incident to the marriage that
+it belonged exclusively to the jurisdiction of the spiritual
+courts, it now touched the purely mundane doubt whether the
+defendant had had quid pro quo.
+
+It will be remembered that the fact formerly sworn to by the
+transaction witnesses was a benefit to the defendant, namely, a
+delivery of the things sold or the money lent to him. Such cases,
+also, offer the most obvious form of consideration. The natural
+question is, what the promisor was to have for his promise. /2/
+It is only by analysis that the supposed policy of the law is
+seen to be equally satisfied by a detriment incurred by the
+promisee. It therefore not unnaturally happened that the judges,
+when they first laid down the law that there must be quid pro
+quo, were slow to recognize a detriment to the contractee as
+satisfying the requirement which had been laid down. In the case
+which I have mentioned some of the judges were inclined to hold
+that getting rid of his daughter was a sufficient benefit to the
+defendant to make him a debtor for the money which he promised;
+and there was even some hint of the opinion, that marrying the
+lady was a [269] consideration, because it was a detriment to the
+promisee. /1/ But the other opinion prevailed, at least for a
+time, because the defendant had had nothing from the plaintiff to
+raise a debt. /2/
+
+So it was held that a service rendered to a third person upon the
+defendant's request and promise of a reward would not be enough,
+/3/ although not without strong opinions to the contrary, and for
+a time the precedents were settled. It became established law
+that an action of debt would only lie upon a consideration
+actually received by and enuring to the benefit of the debtor.
+
+It was, however, no peculiarity of either the action or contract
+of debt which led to this view, but the imperfectly developed
+theory of consideration prevailing between the reigns of Henry
+VI. and Elizabeth. The theory the same in assumpsit, /4/ and in
+equity. /5/ Wherever consideration was mentioned, it was always
+as quid pro quo, as what the contractor was to have for his
+contract.
+
+Moreover, before consideration was ever heard of, debt was the
+time-honored remedy on every obligation to pay money enforced by
+law, except the liability to damages for a wrong. /6/ It has been
+shown already that a surety could be sued in debt until the time
+of Edward III. without a writing, yet a surety receives no
+benefit from the dealing with his principal. For instance, if a
+man sells corn to A, [270] and B says, "I will pay if A does
+not," the sale does B no good so far as appears by the terms of
+the bargain. For this reason, debt cannot now be maintained
+against a surety in such a case.
+
+It was not always so. It is not so to this day if there is an
+obligation under seal. In that case, it does not matter how the
+obligation arose, or whether there was any consideration for it
+or not. But a writing was a more general way of establishing a
+debt in Glanvill's time than witness, and it is absurd to
+determine the scope of the action by considering only a single
+class of debts enforced by it. Moreover, a writing for a long
+time was only another, although more conclusive, mode of proof.
+The foundation of the action was the same, however it was proved.
+This was a duty or "duity" /1/ to the plaintiff, in other words,
+that money was due him, no matter how, as any one may see by
+reading the earlier Year Books. Hence it was, that debt lay
+equally upon a judgment, /2/ which established such a duty by
+matter of record, or upon the defendant's admission recorded in
+like manner. /3/
+
+To sum up, the action of debt has passed through three stages. At
+first, it was the only remedy to recover money due, except when
+the liability was simply to pay damages for a wrongful act. It
+was closely akin to--indeed it was but a branch of--the action
+for any form of personal property which the defendant was bound
+by contract or otherwise to hand over to the plaintiff. /4/ If
+there was a contract to pay money, the only question was how you
+[271] could prove it. Any such contract, which could be proved by
+any of the means known to early law, constituted a debt. There
+was no theory of consideration, and therefore, of course, no
+limit to either the action or the contract based upon the nature
+of the consideration received.
+
+The second stage was when the doctrine of consideration was
+introduced in its earlier form of a benefit to the promisor. This
+applied to all contracts not under seal while it prevailed, but
+it was established while debt was the only action for money
+payable by such contracts. The precedents are, for the most part,
+precedents in debt.
+
+The third stage was reached when a larger view was taken of
+consideration, and it was expressed in terms of detriment to the
+promisee. This change was a change in substantive law, and
+logically it should have been applied throughout. But it arose in
+another and later form of action, under circumstances peculiarly
+connected with that action, as will be explained hereafter. The
+result was that the new doctrine prevailed in the new action, and
+the old in the old, and that what was really the anomaly of
+inconsistent theories carried out side by side disguised itself
+in the form of a limitation upon the action of debt. That action
+did not remain, as formerly, the remedy for all binding contracts
+to pay money, but, so far as parol contracts were concerned,
+could only be used where the consideration was a benefit actually
+received by the promisor. With regard to obligations arising in
+any other way, it has remained unchanged.
+
+I must now devote a few words to the effect upon our law of the
+other mode of proof which I have mentioned. I mean charters. A
+charter was simply a writing. As few could write, most people had
+to authenticate a document [272] in some other way, for instance,
+by making their mark. This was, in fact, the universal practice
+in England until the introduction of Norman customs. /1/ With
+them seals came in. But as late as Henry II. they were said by
+the Chief Justice of England to belong properly only to kings and
+to very great men. /2/ I know no ground for thinking that an
+authentic charter had any less effect at that time when not under
+seal than when it was sealed. /3/ It was only evidence either
+way, and is called so in many of the early cases. /4/ It could be
+waived, and suit tendered in its place. /5/ Its conclusive effect
+was due to the satisfactory nature of the evidence, not to the
+seal. /6/
+
+But when seals came into use they obviously made the evidence of
+the charter better, in so far as the seal was more difficult to
+forge than a stroke of the pen. Seals acquired such importance,
+that, for a time, a man was bound by his seal, although it was
+affixed without his consent. /7/ At last a seal came to be
+required, in order that a charter should have its ancient effect.
+/8/
+
+A covenant or contract under seal was no longer a promise well
+proved; it was a promise of a distinct nature, for which a
+distinct form of action came to be provided. [273] /1/ I have
+shown how the requirement of consideration became a rule of
+substantive law, and also why it never had any foothold in the
+domain of covenants. The exception of covenants from the
+requirement became a rule of substantive law also. The man who
+had set his hand to a charter, from being bound because he had
+consented to be, and because there was a writing to prove it, /2/
+was now held by force of the seal and by deed alone as
+distinguished from all other writings. And to maintain the
+integrity of an inadequate theory, a seal was said to a
+consideration.
+
+Nowadays, it is sometimes thought more philosophical to say that
+a covenant is a formal contract, which survives alongside of the
+ordinary consensual contract, just as happened in the Roman law.
+But this is not a very instructive way of putting it either. In
+one sense, everything is form which the law requires in order to
+make a promise binding over and above the mere expression of the
+promisor's will. Consideration is a form as much as a seal. The
+only difference is, that one form is of modern introduction, and
+has a foundation in good sense, or at least in with our common
+habits of thought, so that we do not notice it, whereas the other
+is a survival from an older condition of the law, and is less
+manifestly sensible, or less familiar. I may add, that, under the
+influence of the latter consideration, the law of covenants is
+breaking down. In many States it is held that a mere scroll or
+flourish of the pen is a sufficient seal. From this it is a short
+step to abolish the distinction between sealed and unsealed
+instruments altogether, and this has been done in some of the
+Western States.
+
+[274] While covenants survive in a somewhat weak old age, and
+debt has disappeared, leaving a vaguely disturbing influence
+behind it, the whole modern law of contract has grown up through
+the medium of the action of Assumpsit, which must now be
+explained.
+
+After the Norman conquest all ordinary actions were begun by a
+writ issuing from the king, and ordering the defendant to be
+summoned before the court to answer the plaintiff. These writs
+were issued as a matter of course, in the various well-known
+actions from which they took their names. There were writs of
+debt and of covenant; there were writs of trespass for forcible
+injuries to the plaintiff's person, or to property in his
+possession, and so on. But these writs were only issued for the
+actions which were known to the law, and without a writ the court
+had no authority to try a case. In the time of Edward I. there
+were but few of such actions. The cases in which you could
+recover money of another fell into a small number of groups, for
+each of which there was a particular form of suing and stating
+your claim.
+
+These forms had ceased to be adequate. Thus there were many cases
+which did not exactly fall within the definition of a trespass,
+but for which it was proper that a remedy should be furnished. In
+order to furnish a remedy, the first thing to be done was to
+furnish a writ. Accordingly, the famous statute of 13 Edward I.,
+c. 24, authorized the office from which the old writs issued to
+frame new ones in cases similar in principle to those for which
+writs were found, and requiring like remedy, but not exactly
+falling within the scope of the writs already in use.
+
+Thus writs of trespass on the case began to make their
+appearance; that is, writs stating a ground of complaint [275] to
+a trespass, but not quite amounting to a trespass as it had been
+sued for in the older precedents. To take an instance which is
+substantially one of the earliest cases, suppose that a man left
+a horse with a blacksmith to be shod, and he negligently drove a
+nail into the horse's foot. It might be that the owner of the
+horse could not have one of the old writs, because the horse was
+not in his possession when the damage was done. A strict trespass
+property could only be committed against the person in possession
+of it. It could not be committed by one who was in possession
+himself. /1/ But as laming the horse was equally a wrong, whether
+the owner held the horse by the bridle or left it with the smith,
+and as the wrong was closely analogous to a trespass, although
+not one, the law gave the owner a writ of trespass on the case.
+/2/
+
+An example like this raises no difficulty; it is as much an
+action of tort for a wrong as trespass itself. No contract was
+stated, and none was necessary on principle. But this does not
+belong to the class of cases to be considered, for the problem
+before us is to trace the origin of assumpsit, which is an action
+of contract. Assumpsit, however, began as an action of trespass
+on the case, and the thing to be discovered is how trespass on
+the case ever became available for a mere breach of agreement.
+
+It will be well to examine some of the earliest cases in which an
+undertaking (assumpsit) was alleged. The first reported in the
+books is of the reign of Edward III. /3/ The plaintiff alleged
+that the defendant undertook to carry the plaintiff's horse
+safely across the Humber, but surcharged [276] the boat, by
+reason of which the horse perished. It was objected that the
+action should have been either covenant for breach of the
+agreement, or else trespass. But it was answered that the
+defendant committed a wrongful act when he surcharged the boat,
+and the objection was overruled. This case again, although an
+undertaking was stated, hardly introduced a new principle. The
+force did not proceed directly from the defendant, to be sure,
+but it was brought to bear by the combination of his overloading
+and then pushing into the stream.
+
+The next case is of the same reign, and goes further. /1/ The
+writ set forth that the defendant undertook to cure the
+plaintiff's horse of sickness (manucepit equum praedicti W. de
+infirmirate), and did his work so negligently that the horse
+died. This differs from the case of laming the horse with a nail
+in two respects. It does not charge any forcible act, nor indeed
+any act at all, but a mere omission. On the other hand, it states
+an undertaking, which the other did not. The defendant at once
+objected that this was an action for a breach of an undertaking,
+and that the plaintiff should have brought covenant. The
+plaintiff replied, that he could not do that without a deed, and
+that the action was for negligently causing the death of the
+horse; that is, for a tort, not for a breach of contract. Then,
+said the defendant, you might have had trespass. But the
+plaintiff answered that by saying that the horse was not killed
+by force, but died per def. de sa cure; and upon this argument
+the writ was adjudged good, Thorpe, J. saying that he had seen a
+man indicted for killing a patient by want of care (default in
+curing), whom he had undertaken to cure.
+
+[277] Both these cases, it will be seen, were dealt with by the
+court as pure actions of tort, notwithstanding the allegation of
+an undertaking on the part of the defendant. But it will also be
+seen that they are successively more remote from an ordinary case
+of trespass. In the case last stated, especially, the destroying
+force did not proceed from the defendant in any sense. And thus
+we are confronted with the question, What possible analogy could
+have been found between a wrongful act producing harm, and a
+failure to act at all?
+
+I attempt to answer it, let me illustrate a little further by
+examples of somewhat later date. Suppose a man undertook to work
+upon another's house, and by his unskilfulness spoiled his
+employer's timbers; it would be like a trespass, although not
+one, and the employer would sue in trespass on the case. This was
+stated as clear law by one of the judges in the reign of Henry
+IV. /1/ But suppose that, instead of directly spoiling the
+materials, the carpenter had simply left a hole in the roof
+through which the rain had come in and done the damage. The
+analogy to the previous case is marked, but we are a step farther
+away from trespass, because the force does not come from the
+defendant. Yet in this instance also the judges thought that
+trespass on the case would lie. /2/ In the time of Henry IV. the
+action could not have been maintained for a simple refusal to
+build according to agreement; but it was suggested by the court,
+that, if the writ had mentioned "that the thing had been
+commenced and then by not done, it would have been otherwise."
+/3/
+
+[278] I now recur to the question, What likeness could there have
+been between an omission and a trespass sufficient to warrant a
+writ of trespass on the case? In order to find an answer it is
+essential to notice that in all the earlier cases the omission
+occurred in the course of dealing with the plaintiff's person or
+property, and occasioned damage to the one or the other. In view
+of this fact, Thorpe's reference to indictments for killing a
+patient by want of care, and the later distinction between
+neglect before and after the task is commenced, are most
+pregnant. The former becomes still more suggestive when it is
+remembered that this is the first argument or analogy to be found
+upon the subject.
+
+The meaning of that analogy is plain. Although a man has a
+perfect right to stand by and see his neighbor's property
+destroyed, or, for the matter of that, to watch his neighbor
+perish for want of his help, yet if he once intermeddles he has
+no longer the same freedom. He cannot withdraw at will. To give a
+more specific example, if a surgeon from benevolence cuts the
+umbilical cord of a newly-born child, he cannot stop there and
+watch the patient bleed to death. It would be murder wilfully to
+allow death to come to pass in that way, as much as if the
+intention had been entertained at the time of cutting the cord.
+It would not matter whether the wickedness began with the act, or
+with the subsequent omission.
+
+The same reasoning applies to civil liability. A carpenter need
+not go to work upon another man's house at all, but if he accepts
+the other's confidence and intermeddles, he cannot stop at will
+and leave the roof open to the weather. So in the case of the
+farrier, when he had taken charge of the horse, he could not stop
+at the critical moment [279] and leave the consequences to
+fortune. So, still more clearly, when the ferryman undertook to
+carry a horse across the Humber, although the water drowned the
+horse, his remote acts of overloading his boat and pushing it
+into the stream in that condition occasioned the loss, and he was
+answerable for it.
+
+In the foregoing cases the duty was independent of contract, or
+at least was so regarded by the judges who decided them, and
+stood on the general rules applied to human conduct even by the
+criminal law. The immediate occasion of the damage complained of
+may have been a mere omission letting in the operation of natural
+forces. But if you connect it, as it was connected in fact, with
+the previous dealings, you have a course of action and conduct
+which, taken as a whole, has caused or occasioned the harm.
+
+The objection may be urged, to be sure, that there is a
+considerable step from holding a man liable for the consequences
+of his acts which he might have prevented, to making him
+answerable for not having interfered with the course of nature
+when he neither set it in motion nor opened the door for it to do
+harm, and that there is just that difference between making a
+hole in a roof and leaving it open, or cutting the cord and
+letting it bleed, on the one side, and the case of a farrier who
+receives a sick horse and omits proper precautions, on the other.
+/1/
+
+There seem to be two answers to this. First, it is not clear that
+such a distinction was adverted to by the court which decided the
+case which I have mentioned. It was alleged that the defendant
+performed his cure so negligently that the horse died. It might
+not have occurred to [280] the judges that the defendant's
+conduct possibly went no further than the omission of a series of
+beneficial measures. It was probably assumed to have consisted of
+a combination of acts and neglects, which taken as a whole
+amounted to an improper dealing with the thing.
+
+In the next place, it is doubtful whether the distinction is a
+sound one on practical grounds. It may well be that, so long as
+one allows a trust to be reposed in him, he is bound to use such
+precautions as are known to him, although he has made no
+contract, and is at liberty to renounce the trust in any
+reasonable manner. This view derives some support from the issue
+on which the parties went to trial, which was that the defendant
+performed the cure as well as he knew how, without this, that the
+horse died for default of his care (cure?). /1/
+
+But it cannot be denied that the allegation of an undertaking
+conveyed the idea of a promise, as well as that of an entering
+upon the business in hand. Indeed, the latter element is
+sufficiently conveyed, perhaps, without it. It may be asked,
+therefore, whether the promise did not count for something in
+raising a duty to act. So far as this involves the consequence
+that the action was in fact for the breach of a contract, the
+answer has been given already, and is sustained by too great a
+weight of authority to be doubted. /2/ To bind the defendant by a
+contract, an instrument under seal was essential. As has been
+shown, already, even the ancient sphere of debt had been limited
+by this requirement, and in the time of Edward III. a deed was
+necessary even to bind a surety. It was so [281] a fortiori to
+introduce a liability upon promises not enforced by the ancient
+law. Nevertheless, the suggestion was made at an early date, that
+an action on the case for damage by negligence, that is, by an
+omission of proper precautions, alleging an undertaking by way of
+inducement, was in fact an action of contract.
+
+Five years after the action for negligence in curing a horse,
+which has been stated, an action was brought /1/ in form against
+a surgeon, alleging that he undertook to cure the plaintiff's
+hand, and that by his negligence the hand was maimed. There was,
+however, this difference, that it was set forth that the
+plaintiff's hand had been wounded by one T.B. And hence it
+appeared that, however much the bad treatment may have aggravated
+matters, the maiming was properly attributable to T.B., and that
+the plaintiff had an action against him. This may have led the
+defendant to adopt the course he did, because he felt uncertain
+whether any action of tort would lie. He took issue on the
+undertaking, assuming that to be essential to the plaintiff's
+case, and then objected that the writ did not show the place of
+the undertaking, and hence was bad, because it did not show
+whence the inquest should be summoned to speak to that point. The
+writ was adjudged bad on that ground, which seems as if the court
+sanctioned the defendant's view. Indeed, one of the judges called
+it an action of covenant, and said that "of necessity it was
+maintainable without specialty, because for so small a matter a
+man cannot always have a clerk at hand to write a deed" (pur
+faire especially). At the same time the earlier cases which [282]
+have been mentioned were cited and relied on, and it is evident
+that the court was not prepared to go beyond them, or to hold
+that the action could be maintained on its merits apart from the
+technical objection. In another connection it seems to have
+considered the action from the point of view of trespass. /1/
+
+Whatever questions this case may suggest, the class of actions
+which alleged an undertaking on the part of the defendant
+continued to be dealt with as actions of tort for a long time
+after Edward III. The liability was limited to damage to person
+or property arising after the defendant had entered upon the
+employment. And it was mainly through reasoning drawn from the
+law of tort that it was afterwards extended, as will be seen.
+
+At the beginning of the reign of Henry VI. it was probably still
+the law that the action would not lie for a simple failure to
+keep a promise. /2/ But it had been several times suggested, as
+has been shown, that it would be otherwise if the omission or
+neglect occurred in the course of performance, and the
+defendant's conduct had been followed by physical damage. /3/
+This suggestion took its most striking form in the early years of
+Henry VI., when the case of the carpenter leaving a hole in the
+roof was put. /4/ When the courts had got as far as this, it was
+easy to go one step farther, and to allow the same effect to an
+omission at any stage, followed by similar damage.
+
+[283] What is the difference in principle, it was asked, a few
+years later, /1/ between the cases where it is admitted that the
+action will lie, and that of a smith who undertakes to shoe a
+horse and does not, by reason of which the horse goes lame,--or
+that of a lawyer, who undertakes to argue your case, and, after
+thus inducing you to rely upon him, neglects to be present, so
+that you lose it? It was said that in the earlier instances the
+duty was dependent on or accessory to the covenant, and that, if
+the action would lie on the accessory matter, it would lie on the
+principal. /2/ It was held on demurrer that an action would lie
+for not procuring certain releases which the defendant had
+undertaken to get.
+
+Five years later another case /3/ came up, which was very like
+that of the farrier in the reign of Edward III. It was alleged
+that the defendant undertook to cure the plaintiff's horse, and
+applied medicine so negligently that the horse died. In this, as
+in the earlier case, the issue was taken on the assumpsit. And
+now the difference between an omission and an act was clearly
+stated, the declaration was held not to mean necessarily anything
+more than an omission, and it was said that but for the
+undertaking the defendant would have owed no duty to act. Hence
+the allegation of the defendant's promise was material, and an
+issue could properly be taken on it.
+
+This decision distinctly separated from the mass of actions on
+the case a special class arising out of a promise as the source
+of the defendant's obligation, and it was only a matter of time
+for that class to become a new and distinct [284] action of
+contract. Had this change taken place at once, the doctrine of
+consideration, which was first definitely enunciated about the
+same time, would no doubt have been applied, and a quid pro quo
+would have been required for the undertaking. /1/ But the notion
+of tort was not at once abandoned. The law was laid down at the
+beginning of the reign of Henry VII., in accordance with the
+earlier decisions, and it was said that the action would not lie
+for a failure to keep a promise, but only for negligence after
+the defendant had entered upon his undertaking. /2/
+
+So far as the action did not exceed the true limits of tort, it
+was immaterial whether there was a consideration for the
+undertaking or not. But when the mistake was made of supposing
+that all cases, whether proper torts or not, in which an
+assumpsit was alleged, were equally founded on the promise, one
+of two erroneous conclusions was naturally thought to follow.
+Either no assumpsit needed any quid pro quo, /3/ as there was
+clearly none in the older precedents, (they being cases of pure
+tort,) or else those precedents were wrong, and a quid pro quo
+should be alleged in every case. It was long recognized with more
+or less understanding of the true limit, that, in cases where the
+gist of the action was negligent damage to property, a
+consideration was not necessary. /4/ And there are some traces of
+the notion that it was always superfluous, as late as Charles I.
+
+[285] In a case of that reign, the defendant retained an attorney
+to act in a suit for a third person, and promised to pay him all
+his fees and expenses. The attorney rendered the service, and
+then brought debt. It was objected that debt did not lie, because
+there was no contract between the parties, and the defendant had
+not any quid pro quo. The court adopted the argument, and said
+that there was no contract or consideration to ground this
+action, but that the plaintiff might have sued in assumpsit. /1/
+
+It was, perhaps, the lingering of this idea, and the often
+repeated notion that an assumpsit was not a contract, /2/ to
+which was attributable a more enlarged theory of consideration
+than prevailed in debt. It was settled that assumpsit would lie
+for a mere omission or nonfeasance. The cases which have been
+mentioned of the reign of Henry VI. were followed by others in
+the latter years of Henry VII., /3/ and it was never again
+doubted. An action for such a cause was clearly for a breach of
+promise, as had been recognized from the time of Edward III. If
+so, a consideration was necessary. /4/ Notwithstanding occasional
+vagaries, that also had been settled or taken for granted in many
+cases of Queen Elizabeth's time. But the bastard origin of the
+action which gave rise to the doubt how far any consideration at
+all was necessary, made it possible to hold considerations
+sufficient which had been in debt.
+
+Another circumstance may not have been without its influence. It
+would seem that, in the period when assumpsit [286] was just
+growing into its full proportions, there was some little
+inclination to identify consideration with the Roman causa, taken
+in its broadest sense. The word "cause" was used for
+consideration in the early years of Elizabeth, with reference to
+a covenant to stand seized to uses. /1/ It was used in the same
+sense in the action of assumpsit. /2/ In the last cited report,
+although the principal case only laid down a doctrine that would
+be followed to-day, there was also stated an anonymous case which
+was interpreted to mean that an executed consideration furnished
+upon request, but without any promise of any kind, would support
+a subsequent promise to pay for it. /3/ Starting from this
+authority and the word "cause," the conclusion was soon reached
+that there was a great difference between a contract and an
+assumpsit; and that, whereas in contracts "everything which is
+requisite ought to concur and meet together, viz. the
+consideration of the one side, and the sale or the promise on the
+other side,... to maintain an action upon an assumpsit, the same
+is not requisite, for it is sufficient if there be a moving cause
+or consideration precedent; for which cause or consideration the
+promise was made." /4/
+
+Thus, where the defendant retained the plaintiff to be [287] to
+his aunt at ten shillings a week, it was held that assumpsit
+would lie, because the service, though not beneficial to the
+defendant, was a charge or detriment to the plaintiff. /1/ The
+old questions were reargued, and views which were very near
+prevailing in debt under Henry VI., prevailed in assumpsit under
+Elizabeth and James.
+
+A surety could be sued in assumpsit, although he had ceased to be
+liable in debt. /2/ There was the same remedy on a promise in
+consideration that the plaintiff would marry the defendant's
+daughter. /3/ The illusion that assumpsit thus extended did not
+mean contract, could not be kept up. In view of this admission
+and of the ancient precedents, the law oscillated for a time in
+the direction of reward as the true essence of consideration. /4/
+But the other view prevailed, and thus, in fact, made a change in
+the substantive law. A simple contract, to be recognized as
+binding by the courts of Henry VI., must have been based upon a
+benefit to the debtor; now a promise might be enforced in
+consideration of a detriment to the promisee. But in the true
+archaic spirit the doctrine was not separated or distinguished
+from the remedy which introduced it, and thus debt in modern
+times has presented the altered appearance of a duty limited to
+cases where the consideration was of a special sort.
+
+The later fortunes of assumpsit can be briefly told. It
+introduced bilateral contracts, because a promise was a [288]
+detriment, and therefore a sufficient consideration for another
+promise. It supplanted debt, because the existence of the duty to
+pay was sufficient consideration for a promise to pay, or rather
+because, before a consideration was required, and as soon as
+assumpsit would lie for a nonfeasance, this action was used to
+avoid the defendant's wager of law. It vastly extended the number
+of actionable contracts, which had formerly been confined to
+debts and covenants, whereas nearly any promise could be sued in
+assumpsit; and it introduced a theory which has had great
+influence on modern law,--that all the liabilities of a bailee
+are founded on contract. /1/ Whether the prominence which was
+thus given to contract as the foundation of legal rights and
+duties had anything to do with the similar prominence which it
+soon acquired in political speculation, it is beyond my province
+to inquire.
+
+[289]
+
+
+
+
+LECTURE VIII. -- CONTRACT. II. ELEMENTS.
+
+THE general method to be pursued in the analysis of contract is
+the same as that already explained with regard to possession.
+Wherever the law gives special rights to one, or imposes special
+burdens on another, it does so on the ground that certain special
+facts are true of those individuals. In all such cases,
+therefore, there is a twofold task. First, to determine what are
+the facts to which the special consequences are attached; second,
+to ascertain the consequences. The first is the main field of
+legal argument. With regard to contracts the facts are not always
+the same. They may be that a certain person has signed, sealed,
+and delivered a writing of a certain purport. They may be that he
+has made an oral promise, and that the promisee has furnished him
+a consideration.
+
+The common element of all contracts might be said to be a
+promise, although even a promise was not necessary to a liability
+in debt as formerly understood. But as it will not be possible to
+discuss covenants further, and as consideration formed the main
+topic of the last Lecture, I will take up that first.
+Furthermore, as there is an historical difference between
+consideration in debt and in assumpsit, I shall confine myself to
+the latter, which is the later and more philosophical form.
+
+It is said that any benefit conferred by the promisee on the
+promisor, or any detriment incurred by the promisee, [290] may be
+a consideration. It is also thought that every consideration may
+be reduced to a case of the latter sort, using the word
+"detriment" in a somewhat broad sense.
+
+To illustrate the general doctrine, suppose that a man is
+desirous of having a cask of brandy carried from Boston to
+Cambridge, and that a truckman, either out of kindness or from
+some other motive, says that he will carry it, and it is
+delivered to him accordingly. If he carelessly staves in the
+cask, there would perhaps be no need to allege that he undertook
+to carry it, and on principle, and according to the older cases,
+if an undertaking was alleged, no consideration for the assumpsit
+need be stated. /1/ The ground of complaint in that case would be
+a wrong, irrespective of contract. But if the complaint was that
+he did not carry it as agreed, the plaintiff's difficulty would
+be that the truckman was not bound to do so unless there was a
+consideration for his promise. Suppose, therefore, that it was
+alleged that he promised to do so in consideration of the
+delivery to him. Would this be a sufficient consideration? The
+oldest cases, going on the notion of benefit to the promisor,
+said that it could not be, for it was a trouble, not a benefit.
+/2/ Then take it from the side of detriment. The delivery is a
+necessary condition to the promisor's doing the kindness, and if
+he does it, the delivery, so far from being a detriment to the
+promisee, is a clear benefit to him.
+
+But this argument is a fallacy. Clearly the delivery would be
+sufficient consideration to enable the owner to declare in
+assumpsit for the breach of those duties which [291] arose,
+irrespective of contract, from the defendant's having undertaken
+to deal with the thing. /1/ It would be a sufficient
+consideration for any promise not involving a dealing with the
+thing for its performance, for instance, to pay a thousand
+dollars. /2/ And the law has not pronounced the consideration
+good or bad according to the nature of the promise founded upon
+it. The delivery is a sufficient consideration for any promise.
+/3/
+
+The argument on the other side leaves out of sight the point of
+time at which the sufficiency of the consideration is to be
+determined. This is the moment when the consideration is
+furnished. At that moment the delivery of the cask is a detriment
+in the strictest sense. The owner of the cask has given up a
+present control over it, which he has a right to keep, and he has
+got in return, not a performance for which a delivery was
+necessary, but a mere promise of performance. The performance is
+still future. /4/
+
+But it will be seen that, although the delivery may be a
+consideration, it will not necessarily be one. A promise to carry
+might be made and accepted on the understanding that it was mere
+matter of favor, without consideration, and not legally binding.
+In that case the detriment of delivery would be incurred by the
+promisee as before, but obviously it would be incurred for the
+sole purpose of enabling the promisor to carry as agreed.
+
+[292] It appears to me that it has not always been sufficiently
+borne in mind that the same thing may be a consideration or not,
+as it is dealt with by the parties. The popular explanation of
+Coggs v. Bernard is, that the delivery was a consideration for a
+promise to carry the casks safely. I have given what I believe to
+be the true explanation, and that which I think Lord Holt had in
+view, in the fifth Lecture. /1/ But whether that which I have
+offered be true or not, a serious objection to the one which is
+commonly accepted is that the declaration does not allege that
+the delivery was the consideration.
+
+The same caution should be observed in construing the terms of an
+agreement. It is hard to see the propriety of erecting any
+detriment which an instrument may disclose or provide for, into a
+consideration, unless the parties have dealt with it on that
+footing. In many cases a promisee may incur a detriment without
+thereby furnishing a consideration. The detriment may be nothing
+but a condition precedent to performance of the promise, as where
+a man promises another to pay him five hundred dollars if he
+breaks his leg. /2/
+
+The courts, however, have gone far towards obliterating this
+distinction. Acts which by a fair interpretation of language
+would seem to have been contemplated as only the compliance with
+a condition, have been treated as the consideration of the
+promise. /3/ And so have counter promises in an agreement which
+expressly stated other matters as the consideration. /4/ So it
+should be mentioned, subject [293] to the question whether there
+may not be a special explanation for the doctrine, that it is
+said that an assignment of a leasehold cannot be voluntary under
+the statute of 27 Elizabeth, c. 4, because the assignee comes
+into the obligations of the tenant. /1/ Yet the assignee's
+incurring this detriment may not be contemplated as the
+inducement of the assignment, and in many cases only amounts to a
+deduction from the benefit conferred, as a right of way would be,
+especially if the only obligation is to pay rent, which issues
+out of the land in theory of law.
+
+But although the courts may have sometimes gone a little far in
+their anxiety to sustain agreements, there can be no doubt of the
+Principle which I have laid down, that the same thing may be a
+consideration or not, as it is dealt with by the parties. This
+raises the question how a thing must be dealt with, in order to
+make it a consideration.
+
+It is said that consideration must not be confounded with motive.
+It is true that it must not be confounded with what may be the
+prevailing or chief motive in actual fact. A man may promise to
+paint a picture for five hundred dollars, while his chief motive
+may be a desire for fame. A consideration may be given and
+accepted, in fact, solely for the purpose of making a promise
+binding. But, nevertheless, it is the essence of a consideration,
+that, by the terms of the agreement, it is given and accepted as
+the motive or inducement of the promise. Conversely, the promise
+must be made and accepted as the conventional motive or
+inducement for furnishing the consideration. The root of the
+whole matter is the relation of reciprocal [294] conventional
+inducement, each for the other, between consideration and
+promise.
+
+A good example of the former branch of the proposition is to be
+found in a Massachusetts case. The plaintiff refused to let
+certain wood be removed from his land by one who had made an oral
+bargain and given his note for it, unless he received additional
+security. The purchaser and the plaintiff accordingly went to the
+defendant, and the defendant put his name upon the note. The
+plaintiff thereupon let the purchaser carry off the wood. But,
+according to the testimony, the defendant signed without knowing
+that the plaintiff was to alter his position in any way on the
+faith of the signature, and it was held that, if that story was
+believed, there was no consideration. /1/
+
+An illustration of the other half of the rule is to be found in
+those cases where a reward is offered for doing something, which
+is afterwards done by a person acting in ignorance of the offer.
+In such a case the reward cannot be claimed, because the alleged
+consideration has not been furnished on the faith of the offer.
+The tendered promise has not induced the furnishing of the
+consideration. The promise cannot be set up as a conventional
+motive when it was not known until after the alleged
+consideration was performed. /2/
+
+Both sides of the relation between consideration and promise, and
+the conventional nature of that relation, may be illustrated by
+the case of the cask. Suppose that the [295] truckman is willing
+to carry the cask, and the owner to let him carry it, without any
+bargain, and that each knows the other's state of mind; but that
+the truckman, seeing his own advantage in the matter, says to the
+owner, "In consideration of your delivering me the cask, and
+letting me carry it, I promise to carry it," and that the owner
+thereupon delivers it. I suppose that the promise would be
+binding. The promise is offered in terms as the inducement for
+the delivery, and the delivery is made in terms as the inducement
+for the promise. It may be very probable that the delivery would
+have been made without a promise, and that the promise would have
+been made in gratuitous form if it had not been accepted upon
+consideration; but this is only a guess after all. The delivery
+need not have been made unless the owner chose, and having been
+made as the term of a bargain, the promisor cannot set up what
+might have happened to destroy the effect of what did happen. It
+would seem therefore that the same transaction in substance and
+spirit might be voluntary or obligatory, according to the form of
+words which the parties chose to employ for the purpose of
+affecting the legal consequences.
+
+If the foregoing principles be accepted, they will be seen to
+explain a doctrine which has given the courts some trouble to
+establish. I mean the doctrine that an executed consideration
+will not sustain a subsequent promise. It has been said, to be
+sure, that such a consideration was sufficient if preceded by a
+request. But the objections to the view are plain. If the request
+was of such a nature, and so put, as reasonably to imply that the
+other person was to have a reward, there was an express promise,
+although not put in words, and that promise was made at [296] the
+same time the consideration was given, and not afterwards. If, on
+the other hand, the words did not warrant the understanding that
+the service was to be paid for, the service was a gift, and a
+past gift can no more be a consideration than any other act of
+the promisee not induced by the promise.
+
+The source of the error can be traced partially, at least, in
+history. Some suggestions touching the matter were made in the
+last Lecture. A few words should be added here. In the old cases
+of debt, where there was some question whether the plaintiff had
+showed enough to maintain his action, a "contract precedent" was
+spoken of several times as raising the duty. Thus, where a man
+had granted that he would be bound in one hundred shillings to
+pay his servant on a certain day for his services, and for
+payments made by the servant on his account, it was argued that
+there was no contract precedent, and that by parol the party is
+not obliged; and, further, that, so far as appeared, the payments
+were made by the servant out of his own head and at no request,
+from which no duty could commence. /1/
+
+So when debt was brought on a deed to pay the plaintiff ten
+marks, if he would take the defendant's daughter to wife, and it
+was objected that the action should have been covenant, it was
+answered that the plaintiff had a contract precedent which gave
+him debt. /2/
+
+The first case in assumpsit /3/ only meant to adopt this long
+familiar thought. A man went bail for his friend's servant, who
+had been arrested. Afterwards the master [297] promised to
+indemnify the bail, and on his failure to do so was sued by him
+in assumpsit. It was held that there was no consideration
+wherefore the defendant should be charged unless the master had
+first promised to indemnify the plaintiff before the servant was
+bailed; "for the master did never make request to the plaintiff
+for his servant to do so much, but he did it of his own head."
+This is perfectly plain sailing, and means no more than the case
+in the Year Books. The report, however, also states a case in
+which it was held that a subsequent promise, in consideration
+that the plaintiff at the special instance of the defendant had
+married the defendant's cousin, was binding, and that the
+marriage was "good cause... because [it] ensued the request of
+the defendant." Whether this was intended to establish a general
+principle, or was decided with reference to the peculiar
+consideration of marriage, /1/ it was soon interpreted in the
+broader sense, as was shown in the last Lecture. It was several
+times adjudged that a past and executed matter was a sufficient
+consideration for a promise at a later day, if only the matter
+relied on had been done or furnished at the request of the
+promisor. /2/
+
+It is now time to analyze the nature of a promise, which is the
+second and most conspicuous element in a simple contract. The
+Indian Contract Act, 1872, Section 2,8 says:--
+
+ "(a.) When one person signifies to another his willingness [298]
+to do or to abstain from doing anything, with a view to obtaining
+the assent of that other to such act or abstinence, he is said to
+make a proposal:
+
+ "(b.) When the person to whom the proposal is made signifies his
+assent thereto, the proposal is said to be accepted. A proposal
+when accepted becomes a promise."
+
+According to this definition the scope of promises is confined to
+conduct on the part of the promisor. If this only meant that the
+promisor alone must bear the legal burden which his promise may
+create, it would be true. But this is not the meaning. For the
+definition is of a promise, not of a legally binding promise. We
+are not seeking for the legal effects of a contract, but for the
+possible contents of a promise which the law may or may not
+enforce. We must therefore only consider the question what can
+possibly be promised in a legal sense, not what will be the
+secondary consequence of a promise binding, but not performed.
+
+An assurance that it shall rain to-morrow, /1/ or that a third
+person shall paint a picture, may as well be a promise as one
+that the promisee shall receive from some source one hundred
+bales of cotton, or that the promisor will pay the promisee one
+hundred dollars. What is the difference in the cases? It is only
+in the degree of power possessed by the promisor over the event.
+He has none in the first case. He has equally little legal
+authority to make a man paint a picture, although he may have
+larger means of persuasion. He probably will be able to make sure
+that the promisee has the cotton. Being a rich man, he is certain
+[299] to be able to pay the one hundred dollars, except in the
+event of some most improbable accident.
+
+But the law does not inquire, as a general thing, how far the
+accomplishment of an assurance touching the future is within the
+power of the promisor. In the moral world it may be that the
+obligation of a promise is confined to what lies within reach of
+the will of the promisor (except so far as the limit is unknown
+on one side, and misrepresented on the other). But unless some
+consideration of public policy intervenes, I take it that a man
+may bind himself at law that any future event shall happen. He
+can therefore promise it in a legal sense. It may be said that
+when a man covenants that it shall rain to-morrow, or that A
+shall paint a picture, he only says, in a short form, I will pay
+if it does not rain, or if A does not paint a picture. But that
+is not necessarily so. A promise could easily be framed which
+would be broken by the happening of fair weather, or by A not
+painting. A promise, then, is simply an accepted assurance that a
+certain event or state of things shall come to pass.
+
+But if this be true, it has more important bearings than simply
+to enlarge the definition of the word promise. It concerns the
+theory of contract. The consequences of a binding promise at
+common law are not affected by the degree of power which the
+promisor possesses over the promised event. If the promised event
+does not come to pass, the plaintiff's property is sold to
+satisfy the damages, within certain limits, which the promisee
+has suffered by the failure. The consequences are the same in
+kind whether the promise is that it shall rain, or that another
+man shall paint a picture, or that the promisor will deliver a
+bale of cotton.
+
+[300] If the legal consequence is the same in all cases, it seems
+proper that all contracts should be considered from the same
+legal point of view. In the case of a binding promise that it
+shall rain to-morrow, the immediate legal effect of what the
+promisor does is, that he takes the risk of the event, within
+certain defined limits, as between himself and the promisee. He
+does no more when he promises to deliver a bale of cotton.
+
+If it be proper to state the common-law meaning of promise and
+contract in this way, it has the advantage of freeing the subject
+from the superfluous theory that contract is a qualified
+subjection of one will to another, a kind of limited slavery. It
+might be so regarded if the law compelled men to perform their
+contracts, or if it allowed promisees to exercise such
+compulsion. If, when a man promised to labor for another, the law
+made him do it, his relation to his promisee might be called a
+servitude ad hoc with some truth. But that is what the law never
+does. It never interferes until a promise has been broken, and
+therefore cannot possibly be performed according to its tenor. It
+is true that in some instances equity does what is called
+compelling specific performance. But, in the first place, I am
+speaking of the common law, and, in the next, this only means
+that equity compels the performance of certain elements of the
+total promise which are still capable of performance. For
+instance, take a promise to convey land within a certain time, a
+court of equity is not in the habit of interfering until the time
+has gone by, so that the promise cannot be performed as made. But
+if the conveyance is more important than the time, and the
+promisee prefers to have it late rather than never, the law may
+compel the performance of [301] that. Not literally compel even
+in that case, however, but put the promisor in prison unless he
+will convey. This remedy is an exceptional one. The only
+universal consequence of a legally binding promise is, that the
+law makes the promisor pay damages if the promised event does not
+come to pass. In every case it leaves him free from interference
+until the time for fulfilment has gone by, and therefore free to
+break his contract if he chooses.
+
+A more practical advantage in looking at a contract as the taking
+of a risk is to be found in the light which it throws upon the
+measure of damages. If a breach of contract were regarded in the
+same light as a tort, it would seem that if, in the course of
+performance of the contract the promisor should be notified of
+any particular consequence which would result from its not being
+performed, he should be held liable for that consequence in the
+event of non-performance. Such a suggestion has been made. /1/
+But it has not been accepted as the law. On the contrary,
+according to the opinion of a very able judge, which seems to be
+generally followed, notice, even at the time of making the
+contract, of special circumstances out of which special damages
+would arise in case of breach, is not sufficient unless the
+assumption of that risk is to be taken as having fairly entered
+into the contract. /2/ If a carrier should undertake to carry the
+machinery of a saw-mill from Liverpool to Vancouver's Island, and
+should fail [302] to do so, he probably would not be held liable
+for the rate of hire of such machinery during the necessary
+delay, although he might know that it could not be replaced
+without sending to England, unless he was fairly understood to
+accept "the contract with the special condition attached to it."
+/1/
+
+It is true that, when people make contracts, they usually
+contemplate the performance rather than the breach. The express
+language used does not generally go further than to define what
+will happen if the contract is fulfilled. A statutory requirement
+of a memorandum in writing would be satisfied by a written
+statement of the promise as made, because to require more would
+be to run counter to the ordinary habits of mankind, as well as
+because the statement that the effect of a contract is the
+assumption of the risk of a future event does not mean that there
+is a second subsidiary promise to assume that risk, but that the
+assumption follows as a consequence directly enforced by the law,
+without the promisor's co-operation. So parol evidence would be
+admissible, no doubt, to enlarge or diminish the extent of the
+liability assumed for nonperformance, where it would be
+inadmissible to affect the scope of the promise.
+
+But these concessions do not affect the view here taken. As the
+relation of contractor and contractee is voluntary, the
+consequences attaching to the relation must be voluntary. What
+the event contemplated by the promise is, or in other words what
+will amount to a breach of contract, is a matter of
+interpretation and construction. What consequences of the breach
+are assumed is more remotely, in like manner, a matter of
+construction, having regard [303] to the circumstances under
+which the contract is made. Knowledge of what is dependent upon
+performance is one of those circumstances. It is not necessarily
+conclusive, but it may have the effect of enlarging the risk
+assumed.
+
+The very office of construction is to work out, from what is
+expressly said and done, what would have been said with regard to
+events not definitely before the minds of the parties, if those
+events had been considered. The price paid in mercantile
+contracts generally excludes the construction that exceptional
+risks were intended to be assumed. The foregoing analysis is
+believed to show that the result which has been reached by the
+courts on grounds of practical good sense, falls in with the true
+theory of contract under the common law.
+
+The discussion of the nature of a promise has led me to analyze
+contract and the consequences of contract somewhat in advance of
+their place. I must say a word more concerning the facts which
+constitute a promise. It is laid down, with theoretical truth,
+that, besides the assurance or offer on the one side, there must
+be an acceptance on the other. But I find it hard to think of a
+case where a simple contract fails to be made, which could not be
+accounted for on other grounds, generally by the want of relation
+between assurance or offer and consideration as reciprocal
+inducements each of the other. Acceptance of an offer usually
+follows by mere implication from the furnishing of the
+consideration; and inasmuch as by our law an accepted offer, or
+promise, until the consideration is furnished, stands on no
+different footing from an offer not yet accepted, each being
+subject to revocation until that time, and each continuing [304]
+until then unless it has expired or has been revoked, the
+question of acceptance is rarely of practical importance.
+
+Assuming that the general nature of consideration and promise is
+understood, some questions peculiar to bilateral contracts remain
+to be considered. These concern the sufficiency of the
+consideration and the moment when the contract is made.
+
+A promise may be a consideration for a promise, although not
+every promise for every other. It may be doubted whether a
+promise to make a gift of one hundred dollars would be supported
+by a promise to accept it. But in a case of mutual promises
+respectively to transfer and to accept unpaid shares in a railway
+company, it has been held that a binding contract was made. Here
+one party agrees to part with something which may prove valuable,
+and the other to assume a liability which may prove onerous. /1/
+
+But now suppose that there is no element of uncertainty except in
+the minds of the parties. Take, for instance, a wager on a past
+horse-race. It has been thought that this would amount to an
+absolute promise on one side, and no promise at all on the other.
+/2/ But this does not seem to me sound. Contracts are dealings
+between men, by which they make arrangements for the future. In
+making such arrangements the important thing is, not what is
+objectively true, but what the parties know. Any present fact
+which is unknown to the parties is just as uncertain for the
+purposes of making an arrangement at this moment, as any future
+fact. It is therefore a detriment to undertake to be ready to pay
+if the event turns out not [305] to have been as expected. This
+seems to be the true explanation why forbearance to sue upon a
+claim believed the plaintiff to be good is a sufficient
+consideration, although the claim was bad in fact, and known by
+the defendant to be bad. /1/ Were this view unsound, it is hard
+to see how wagers on any future event, except a miracle, could be
+sustained. For if the happening or not happening of the event is
+subject to the law of causation, the only uncertainty about it is
+in our foresight, not in its happening.
+
+The question when a contract is made arises for the most part
+with regard to bilateral contracts by letter, the doubt being
+whether the contract is complete at the moment when the return
+promise is put into the post, or at the moment when it is
+received. If convenience preponderates in favor of either view,
+that is a sufficient reason for its adoption. So far as merely
+logical grounds go, the most ingenious argument in favor of the
+later moment is Professor Langdell's. According to him the
+conclusion follows from the fact that the consideration which
+makes the offer binding is itself a promise. Every promise, he
+says, is an offer before it is a promise, and the essence of an
+offer is that it should be communicated. /2/ But this reasoning
+seems unsound. When, as in the case supposed, the consideration
+for the return promise has been put into the power of the offeree
+and the return promise has been accepted in advance, there is not
+an instant, either in time or logic, when the return promise is
+an offer. It is a promise and a term of a binding contract as
+soon as it is anything. An offer is a revocable and unaccepted
+communication of willingness to promise. [306] When an offer of a
+certain bilateral contract has been made, the same contract
+cannot be offered by the other side. The so-called offer would
+neither be revocable nor unaccepted. It would complete the
+contract as soon as made.
+
+If it be said that it is of the essence of a promise to be
+communicated, whether it goes through the stage of offer or not,
+meaning by communicated brought to the actual knowledge of the
+promisee, the law is believed to be otherwise. A covenant is
+binding when it is delivered and accepted, whether it is read or
+not. On the same principle, it is believed that, whenever the
+obligation is to be entered into by a tangible sign, as, in the
+case supposed, by letter containing the return promise, and the
+consideration for and assent to the promise are already given,
+the only question is when the tangible sign is sufficiently put
+into the power of the promisee. I cannot believe that, if the
+letter had been delivered to the promisee and was then snatched
+from his hands before he had read it, there would be no contract.
+/1/ If I am right, it appears of little importance whether the
+post-office be regarded as agent or bailee for the offerer, or as
+a mere box to which he has access. The offeree, when he drops the
+letter containing the counter-promise into the letter-box, does
+an overt act, which by general understanding renounces control
+over the letter, and puts it into a third hand for the benefit of
+the offerer, with liberty to the latter at any moment thereafter
+to take it.
+
+The principles governing revocation are wholly different. One to
+whom an offer is made has a right to assume that it remains open
+according to its terms until he has actual [307] notice to the
+contrary. The effect of the communication must be destroyed by a
+counter communication. But the making of a contract does not
+depend on the state of the parties' minds, it depends on their
+overt acts. When the sign of the counter promise is a tangible
+object, the contract is completed when the dominion over that
+object changes.
+
+[308]
+
+
+
+
+LECTURE IX. -- CONTRACT.--III. VOID AND VOIDABLE.
+
+THE elements of fact necessary to call a contract into existence,
+and the legal consequences of a contract when formed, have been
+discussed. It remains to consider successively the cases in which
+a contract is said to be void, and those in which it is said to
+be voidable,--in which, that is, a contract fails to be made when
+it seems to have been, or, having been made, can be rescinded by
+one side or the other, and treated as if it had never been. I
+take up the former class of cases first.
+
+When a contract fails to be made, although the usual forms have
+been gone through with, the ground of failure is commonly said to
+be mistake, misrepresentation, or fraud. But I shall try to show
+that these are merely dramatic circumstances, and that the true
+ground is the absence of one or more of the primary elements,
+which have been shown, or are seen at once, to be necessary to
+the existence of a contract.
+
+If a man goes through the form of making a contract with A
+through B as A's agent, and B is not in fact the agent of A,
+there is no contract, because there is only one party. The
+promise offered to A has not been accepted by him, and no
+consideration has moved from him. In such a case, although there
+is generally mistake on one side and fraud on the other, it is
+very clear that no special [309] doctrine need be resorted to,
+because the primary elements of a contract explained in the last
+Lecture are not yet present.
+
+Take next a different case. The defendant agreed to buy, and the
+plaintiff agreed to sell, a cargo of cotton, "to arrive ex
+Peerless from Bombay." There were two such vessels sailing from
+Bombay, one in October, the other in December. The plaintiff
+meant the latter, the defendant the former. It was held that the
+defendant was not bound to accept the cotton. /1/ It is commonly
+said that such a contract is void, because of mutual mistake as
+to the subject-matter, and because therefore the parties did not
+consent to the same thing. But this way of putting it seems to me
+misleading. The law has nothing to do with the actual state of
+the parties' minds. In contract, as elsewhere, it must go by
+externals, and judge parties by their conduct. If there had been
+but one "Peerless," and the defendant had said "Peerless" by
+mistake, meaning "Peri," he would have been bound. The true
+ground of the decision was not that each party meant a different
+thing from the other, as is implied by the explanation which has
+been mentioned, but that each said a different thing. The
+plaintiff offered one thing, the defendant expressed his assent
+to another.
+
+A proper name, when used in business or in pleading, /2/ means
+one individual thing, and no other, as every one knows, and
+therefore one to whom such a name is used must find out at his
+peril what the object designated is. If there are no
+circumstances which make the use deceptive on either side, each
+is entitled to insist on the [310] meaning favorable to him for
+the word as used by him, and neither is entitled to insist on
+that meaning for the word as used by the other. So far from
+mistake having been the ground of decision, as mistake, its only
+bearing, as it seems to me, was to establish that neither party
+knew that he was understood by the other to use the word
+"Peerless "in the sense which the latter gave to it. In that
+event there would perhaps have been a binding contract, because,
+if a man uses a word to which he knows the other party attaches,
+and understands him to attach, a certain meaning, he may be held
+to that meaning, and not be allowed to give it any other. /1/
+
+Next, suppose a case in which the offer and acceptance do not
+differ, and in which both parties have used the same words in the
+same sense. Suppose that A agreed to buy, and B agreed to sell,
+"these barrels of mackerel," and that the barrels in question
+turn out to contain salt. There is mutual mistake as to the
+contents of the barrels, and no fraud on either side. I suppose
+the contract would be void. /2/
+
+It is commonly said that the failure of the contract in such a
+case is due to the fact of a difference in kind between the
+actual subject-matter and that to which the intention of the
+parties was directed. It is perhaps more instructive to say that
+the terms of the supposed contract, although seemingly
+consistent, were contradictory, in matters that went to the root
+of the bargain. For, by one of the essential terms, the
+subject-matter of the agreement was the contents of certain
+barrels, and nothing else, and, by another equally important, it
+was mackerel, and nothing else; [311] while, as a matter of fact,
+it could not be both, because the contents of the barrels were
+salt. As neither term could be left out without forcing on the
+parties a contract which they did not make, it follows that A
+cannot be required to accept, nor B to deliver either these
+barrels of salt, or other barrels of mackerel; and without
+omitting one term, the promise is meaningless.
+
+If there had been fraud on the seller's part, or if he had known
+what the barrels really contained, the buyer might have had a
+right to insist on delivery of the inferior article. Fraud would
+perhaps have made the contract valid at his option. Because, when
+a man qualifies sensible words with others which he knows, on
+secret grounds, are insensible when so applied, he may fairly be
+taken to authorize his promisee to insist on the possible part of
+his promise being performed, if the promisee is willing to forego
+the rest.
+
+Take one more illustration like the last case. A policy of
+insurance is issued on a certain building described in the policy
+as a machine-shop. In fact the building is not a machine-shop,
+but an organ factory, which is a greater risk. The contract is
+void, not because of any misrepresentation, but, as before,
+because two of its essential terms are repugnant, and their union
+is insensible. /1/
+
+Of course the principle of repugnancy last explained might be
+stretched to apply to any inconsistency between the different
+terms of a contract. It might be said, for instance, that if a
+piece of gold is sold as eighteen-carat gold, and it is in fact
+not so pure, or if a cow is sold as yielding an average of twelve
+quarts of milk a day, and in fact she yields only six quarts,
+there is no logical difference, [312] according to the
+explanation which has just been offered, between those cases and
+that of the barrel of salt sold for mackerel. Yet those bargains
+would not be void. At the most, they would only be voidable, if
+the buyer chose to throw them up.
+
+The distinctions of the law are founded on experience, not on
+logic. It therefore does not make the dealings of men dependent
+on a mathematical accuracy. Whatever is promised, a man has a
+right to be paid for, if it is not given; but it does not follow
+that the absence of some insignificant detail will authorize him
+to throw up the contract, still less that it will prevent the
+formation of a contract, which is the matter now under
+consideration. The repugnant terms must both be very
+important,--so important that the court thinks that, if either is
+omitted, the contract would be different in substance from that
+which the words of the parties seemed to express.
+
+A term which refers directly to an identification by the senses
+has always this degree of importance. If a promise is made to
+sell this cow, or this mackerel, to this man, whatever else may
+be stricken from the contract, it can never be enforced except
+touching this object and by this man. If this barrel of salt is
+fraudulently sold for a barrel of mackerel, the buyer may perhaps
+elect to take this barrel of salt if he chooses, but he cannot
+elect to take another barrel of mackerel. If the seller is
+introduced by the name B, and the buyer supposes him to be
+another person of the same name, and under that impression
+delivers his written promise to buy of B, the B to whom the
+writing is delivered is the contractee, if any one is, and,
+notwithstanding what has been said of the use of proper names, I
+should suppose [313] a contract would be made. /1/ For it is
+further to be said that, so far as by one of the terms of a
+contract the thing promised or the promisee is identified by
+sight and hearing, that term so far preponderates over all others
+that it is very rare for the failure of any other element of
+description to prevent the making of a contract. /2/ The most
+obvious of seeming exceptions is where the object not in fact so
+identified, but only its covering or wrapper.
+
+Of course the performance of a promise may be made conditional on
+all the terms stipulated from the other side being complied with,
+but conditions attaching to performance can never come into
+consideration until a contract has been made, and so far the
+question has been touching the existence of a contract in the
+first instance.
+
+A different case may be suggested from any yet considered.
+Instead of a repugnancy between offer and assent which prevents
+an agreement, or between the terms of an agreement which makes it
+insensible on its fact, there may be a like repugnancy between a
+term of the contract and a previous representation of fact which
+is not expressly made a part of the contract. The representation
+may have been the chief inducement and very foundation of the
+bargain. It may be more important than any of the expressed
+terms, and yet the contract may have [314] been reduced to
+writing in words which cannot fairly be construed to include it.
+A vendor may have stated that barrels filled with salt contain
+mackerel, but the contract may be only for the barrels and their
+contents. An applicant for insurance may have misstated facts
+essential to the risk, yet the policy may simply insure a certain
+building or a certain life. It may be asked whether these
+contracts are not void also.
+
+There might conceivably be cases in which, taking into account
+the nature of the contract, the words used could be said to
+embody the representation as a term by construction. For
+instance, it might be said that the true and well-understood
+purport of a contract of insurance is not, as the words seem to
+say, to take the risk of any loss by fire or perils of the sea,
+however great the risk may be, but to take a risk of a certain
+magnitude, and no other, which risk has been calculated
+mathematically from the statements of the party insured. The
+extent of the risk taken is not specified in the policy, because
+the old forms and established usage are otherwise, but the
+meaning is perfectly understood.
+
+If this reasoning were adopted, there would be an equal
+repugnancy in the terms of the contract, whether the nature of
+the risk were written in the policy or fixed by previous
+description. But, subject to possible exceptions of this kind, it
+would seem that a contract would be made, and that the most that
+could be claimed would be a right to rescind. Where parties
+having power to bind themselves do acts and use words which are
+fit to create an obligation, I take it that an obligation arises.
+If there is a mistake as to a fact not mentioned in the contract,
+it goes only to the motives for making the contract. But a [315]
+contract is not prevented from being made by the mere fact that
+one party would not have made it if he had known the truth. In
+what cases a mistake affecting motives is a ground for avoidance,
+does not concern this discussion, because the subject now under
+consideration is when a contract is made, and the question of
+avoiding or rescinding it presupposes that it has been made.
+
+I think that it may now be assumed that, when fraud,
+misrepresentation, or mistake is said to make a contract void,
+there is no new principle which comes in to set aside an
+otherwise perfect obligation, but that in every such case there
+is wanting one or more of the first elements which were explained
+in the foregoing Lecture. Either there is no second party, or the
+two parties say different things, or essential terms seemingly
+consistent are really inconsistent as used.
+
+When a contract is said to be voidable, it is assumed that a
+contract has been made, but that it is subject to being unmade at
+the election of one party. This must be because of the breach of
+some condition attached to its existence either expressly or by
+implication.
+
+If a condition is attached to the contract's coming into being,
+there is as yet no contract. Either party may withdraw, at will,
+until the condition is determined. There is no obligation,
+although there may be an offer or a promise, and hence there is
+no relation between the parties which requires discussion here.
+But some conditions seemingly arising out of a contract already
+made are conditions of this sort. Such is always the case if the
+condition of a promise lies within the control of the promisor's
+own will. For instance, a promise to pay for clothes if made to
+the customer's satisfaction, has been held in Massachusetts to
+[316] make the promisor his own final judge. /1/ So interpreted,
+it appears to me to be no contract at all, until the promisor's
+satisfaction is expressed. His promise is only to pay if he sees
+fit, and such a promise cannot be made a contract because it
+cannot impose any obligation. /2/ If the promise were construed
+to mean that the clothes should be paid for provided they were
+such as ought to satisfy the promisor, /3/ and thus to make the
+jury the arbiter, there would be a contract, because the promisor
+gives up control over the event, but it would be subject to a
+condition in the sense of the present analysis.
+
+The conditions which a contract may contain have been divided by
+theorists into conditions precedent and conditions subsequent.
+The distinction has even been pronounced of great importance. It
+must be admitted that, if the course of pleading be taken as a
+test, it is so. In some cases, the plaintiff has to state that a
+condition has been performed in order to put the defendant to his
+answer; in others, it is left to the defendant to set up that a
+condition has been broken.
+
+In one sense, all conditions are subsequent; in another, all are
+precedent. All are subsequent to the first stage of the
+obligation. /4/ Take, for instance, the case of a promise to pay
+for work if done to the satisfaction of an architect. The
+condition is a clear case of what is called a condition
+precedent. There can be no duty to pay until the architect is
+satisfied. But there can be a [317] contract before that moment,
+because the determination whether the promisor shall pay or not
+is no longer within his control. Hence the condition is
+subsequent to the existence of the obligation.
+
+On the other hand, every condition subsequent is precedent to the
+incidence of the burden of the law. If we look at the law as it
+would be regarded by one who had no scruples against doing
+anything which he could do without incurring legal consequences,
+it is obvious that the main consequence attached by the law to a
+contract is a greater or less possibility of having to pay money.
+The only question from the purely legal point of view is whether
+the promisor will be compelled to pay. And the important moment
+is that at which that point is settled. All conditions are
+precedent to that.
+
+But all conditions are precedent, not only in this extreme sense,
+but also to the existence of the plaintiff's cause of action. As
+strong a case as can be put is that of a policy of insurance
+conditioned to be void if not sued upon within one year from a
+failure to pay as agreed. The condition does not come into play
+until a loss has occurred, the duty to pay has been neglected,
+and a cause of action has arisen. Nevertheless, it is precedent
+to the plaintiff's cause of action. When a man sues, the question
+is not whether he has had a cause of action in the past, but
+whether he has one then. He has not one then, unless the year is
+still running. If it were left for the defendant to set up the
+lapse of the year, that would be due to the circumstance that the
+order of pleading does not require a plaintiff to meet all
+possible defences, and to set out a case unanswerable except by
+denial. The point at which the law calls on the defendant for an
+answer varies [318] in different cases. Sometimes it would seem
+to be governed simply by convenience of proof, requiring the
+party who has the affirmative to plead and prove it. Sometimes
+there seems to be a reference to the usual course of events, and
+matters belong to the defence because they are only exceptionally
+true.
+
+The most logical distinction would be between conditions which
+must be satisfied before a promise can be broken, and those
+which, like the last, discharge the liability after a breach has
+occurred. /1/ But this is of the slightest possible importance,
+and it may be doubted whether another case like the last could be
+found.
+
+It is much more important to mark the distinction between a
+stipulation which only has the effect of confining a promise to
+certain cases, and a condition properly so called. Every
+condition, it is true, has this effect upon the promise to which
+it is attached, so that, whatever the rule of pleading may be,
+/2/ a promise is as truly kept and performed by doing nothing
+where the condition of the stipulated act has been broken, as it
+would have been by doing the act if the condition had been
+fulfilled. But if this were all, every clause in a contract which
+showed what the promisor did not promise would be a condition,
+and the word would be worse than useless. The characteristic
+feature is quite different.
+
+A condition properly so called is an event, the happening of
+which authorizes the person in whose favor the condition is
+reserved to treat the contract as if it had not been made,--to
+avoid it, as is commonly said,--that is, to insist on both
+parties being restored to the position in [319] which they stood
+before the contract was made. When a condition operates as such,
+it lets in an outside force to destroy the existing state of
+things. For although its existence is due to consent of parties,
+its operation depends on the choice of one of them. When a
+condition is broken, the person entitled to insist on it may do
+so if he chooses; but he may, if he prefers, elect to keep the
+contract on foot. He gets his right to avoid it from the
+agreement, but the avoidance comes from him.
+
+Hence it is important to distinguish those stipulations which
+have this extreme effect from those which only interpret the
+extent of a promise, or define the events to which it applies.
+And as it has just been shown that a condition need not be
+insisted on as such, we must further distinguish between its
+operation by way of avoidance, which is peculiar to it, and its
+incidental working by way of interpretation and definition, in
+common with other clauses not conditions.
+
+This is best illustrated by taking a bilateral contract between A
+and B, where A's undertaking is conditional on B's doing what he
+promises to do, and where, after A has got a certain distance in
+his task, B breaks his half of the bargain. For instance, A is
+employed as a clerk by B, and is wrongfully dismissed in the
+middle of a quarter. In favor of A, the contract is conditional
+on B's keeping his agreement to employ him. Whether A insists on
+the condition or not, he is not bound to do any more. /1/ So far,
+the condition works simply by way of definition. It establishes
+that A has not promised to act in the case which has happened.
+But besides this, for which a condition [320] was not necessary,
+A may take his choice between two courses. In the first place, he
+may elect to avoid the contract. In that case the parties stand
+as if no contract had been made, and A, having done work for B
+which was understood not to be gratuitous, and for which no rate
+of compensation has been fixed, can recover what the jury think
+his services were reasonably worth. The contract no longer
+determines the quid pro quo. But as an alternative course A may
+stand by the contract if he prefers to do so, and sue B for
+breaking it. In that case he can recover as part of his damages
+pay at the contract rate for what he had done, as well as
+compensation for his loss of opportunity to finish it. But the
+points which are material for the present discussion are, that
+these two remedies are mutually exclusive, /1/ one supposing the
+contract to be relied on, the other that it is set aside, but
+that A's stopping work and doing no more after B's breach is
+equally consistent with either choice, and has in fact nothing to
+do with the matter.
+
+One word should be added to avoid misapprehension. When it is
+said that A has done all that he promised to do in the case which
+has happened, it is not meant that he is necessarily entitled to
+the same compensation as if he had done the larger amount of
+work. B's promise in the case supposed was to pay so much a
+quarter for services; and although the consideration of the
+promise was the promise by A to perform them, the scope of it was
+limited to the case of their being performed in fact. Hence A
+could not simply wait till the end of his term, and then recover
+the full amount which he would have had if the employment had
+continued. Nor is he any more entitled to do so from [321] the
+fact that it was B's fault that the services were not rendered.
+B's answer to any such claim is perfect. He is only liable upon a
+promise, and he in his turn only promised to pay in a case which
+has not happened. He did promise to employ, however, and for not
+doing that he is liable in damages.
+
+One or two more illustrations will be useful. A promises to
+deliver, and B promises to accept and pay for, certain goods at a
+certain time and place. When the time comes, neither party is on
+hand. Neither would be liable to an action, and, according to
+what has been said, each has done all that he promised to do in
+the event which has happened, to wit, nothing. It might be
+objected that, if A has done all that he is bound to do, he ought
+to be able to sue B, since performance or readiness to perform
+was all that was necessary to give him that right, and conversely
+the same might be said of B. On the other hand, considering
+either B or A as defendant, the same facts would be a complete
+defence. The puzzle is largely one of words.
+
+A and B have, it is true, each performed all that they promised
+to do at the present stage, because they each only promised to
+act in the event of the other being ready and willing to act at
+the same time. But the readiness and willingness, although not
+necessary to the performance of either promise, and therefore not
+a duty, was necessary in order to present a case to which the
+promise of action on the other side would apply. Hence, although
+A and B have each performed their own promise, they have not
+performed the condition to their right of demanding more from the
+other side. The performance of that condition is purely optional
+until one side has brought it within the [322] scope of the
+other's undertaking by performing it himself. But it is
+performance in the latter sense, that is, the satisfying of all
+conditions, as well as the keeping of his own promises, which is
+necessary to give A or B a right of action.
+
+Conditions may be created by the very words of a contract. Of
+such cases there is nothing to be said, for parties may agree to
+what they choose. But they may also be held to arise by
+construction, where no provision is made in terms for rescinding
+or avoiding the contract in any case. The nature of the
+conditions which the law thus reads in needs explanation. It may
+be said, in a general way, that they are directed to the
+existence of the manifest grounds for making the bargain on the
+side of the rescinding party, or the accomplishment of its
+manifest objects. But that is not enough. Generally speaking, the
+disappointment must be caused by the wrong-doing of the person on
+the other side; and the most obvious cases of such wrong-doing
+are fraud and misrepresentation, or failure to perform his own
+part of the contract.
+
+Fraud and misrepresentation thus need to be considered once more
+in this connection. I take the latter first. In dealing with it
+the first question which arises is whether the representation is,
+or is not, part of the contract. If the contract is in writing
+and the representation is set out on the face of the paper, it
+may be material or immaterial, but the effect of its untruth will
+be determined on much the same principles as govern the failure
+to perform a promise on the same side. If the contract is made by
+word of mouth, there may be a large latitude in connecting words
+of representation with later words of promise; but when they are
+determined to be a part of the contract [323], the same
+principles apply as if the whole were in writing.
+
+The question now before us is the effect of a misrepresentation
+which leads to, but is not a part of, the contract. Suppose that
+the contract is in writing, but does not contain it, does such a
+previous misrepresentation authorize rescission in any case? and
+if so, does it in any case except where it goes to the height of
+fraud? The promisor might say, It does not matter to me whether
+you knew that your representation was false or not; the only
+thing I am concerned with is its truth. If it is untrue, I suffer
+equally whether you knew it to be so or not. But it has been
+shown, in an earlier Lecture, that the law does not go on the
+principle that a man is answerable for all the consequences of
+all his acts. An act is indifferent in itself. It receives its
+character from the concomitant facts known to the actor at the
+time. If a man states a thing reasonably believing that he is
+speaking from knowledge, it is contrary to the analogies of the
+law to throw the peril of the truth upon him unless he agrees to
+assume that peril, and he did not do so in the case supposed, as
+the representation was not made part of the contract.
+
+It is very different when there is fraud. Fraud may as well lead
+to the making of a contract by a statement outside the contract
+as by one contained in it. But the law would hold the contract
+not less conditional on good faith in one case than in the other.
+
+To illustrate, we may take a somewhat extreme case. A says to B,
+I have not opened these barrels myself, but they contain No. 1
+mackerel: I paid so much for them to so and so, naming a
+well-known dealer. Afterwards A writes B, I will sell the barrels
+which you saw, and their [324] contents, for so much; and B
+accepts. The barrels turn out to contain salt. I suppose the
+contract would be binding if the statements touching the contents
+were honest, and voidable if they were fraudulent.
+
+Fraudulent representations outside a contract can never, it would
+seem, go to anything except the motives for making it. If outside
+the contract, they cannot often affect its interpretation. A
+promise in certain words has a definite meaning, which the
+promisor is presumed to understand. If A says to B, I promise you
+to buy this barrel and its contents, his words designate a person
+and thing identified by the senses, and they signify nothing
+more. There is no repugnancy, and if that person is ready to
+deliver that thing, the purchaser cannot say that any term in the
+contract itself is not complied with. He may have been
+fraudulently induced to believe that B was another B, and that
+the barrel contained mackerel; but however much his belief on
+those points may have affected his willingness to make the
+promise, it would be somewhat extravagant to give his words a
+different meaning on that account. "You" means the person before
+the speaker, whatever his name, and "contents" applies to salt,
+as well as to mackerel.
+
+It is no doubt only by reason of a condition construed into the
+contract that fraud is a ground of rescission. Parties could
+agree, if they chose, that a contract should be binding without
+regard to truth or falsehood outside of it on either part.
+
+But, as has been said before in these Lectures, although the law
+starts from the distinctions and uses the language of morality,
+it necessarily ends in external standards not dependent on the
+actual consciousness of the individual. [325] So it has happened
+with fraud. If a man makes a representation, knowing facts which
+by the average standard of the community are sufficient to give
+him warning that it is probably untrue, and it is untrue, he is
+guilty of fraud in theory of law whether he believes his
+statement or not. The courts of Massachusetts, at least, go much
+further. They seem to hold that any material statement made by a
+man as of his own knowledge, or in such a way as fairly to be
+understood as made of his own knowledge, is fraudulent if untrue,
+irrespective of the reasons he may have had for believing it and
+for believing that he knew it. /1/ It is clear, therefore, that a
+representation may be morally innocent, and yet fraudulent in
+theory of law. Indeed, the Massachusetts rule seems to stop
+little short of the principle laid down by the English courts of
+equity, which has been criticised in an earlier Lecture, /2/
+since most positive affirmations of facts would at least warrant
+a jury in finding that they were reasonably understood to be made
+as of the party's own knowledge, and might therefore warrant a
+rescission if they turned out to be untrue. The moral phraseology
+has ceased to be apposite, and an external standard of
+responsibility has been reached. But the starting-point is
+nevertheless fraud, and except on the ground of fraud, as defined
+by law, I do not think that misrepresentations before the
+contract affect its validity, although they lead directly to its
+making. But neither the contract nor the implied condition calls
+for the existence of the facts as to which the false
+representations were made. They call only for the absence of
+certain false representations. The condition is not that the
+promisee shall be a certain other B, or that the contents of the
+barrel shall be mackerel, [326] but that the promisee has not
+lied to him about material facts.
+
+Then the question arises, How do you determine what facts are
+material? As the facts are not required by the contract, the only
+way in which they can be material is that a belief in their being
+true is likely to have led to the making of the contract.
+
+It is not then true, as it is sometimes said, that the law does
+not concern itself with the motives for making contracts. On the
+contrary, the whole scope of fraud outside the contract is the
+creation of false motives and the removal of true ones. And this
+consideration will afford a reasonable test of the cases in which
+fraud will warrant rescission. It is said that a fraudulent
+representation must be material to have that effect. But how are
+we to decide whether it is material or not? If the above argument
+is correct, it must be by an appeal to ordinary experience to
+decide whether a belief that the fact was as represented would
+naturally have led to, or a contrary belief would naturally have
+prevented, the making of the contract.
+
+If the belief would not naturally have had such an effect, either
+in general or under the known circumstances of the particular
+case, the fraud is immaterial. If a man is induced to contract
+with another by a fraudulent representation of the latter that he
+is a great-grandson of Thomas Jefferson, I do not suppose that
+the contract would be voidable unless the contractee knew that,
+for special reasons, his lie would tend to bring the contract
+about.
+
+The conditions or grounds for avoiding a contract which have been
+dealt with thus far are conditions concerning the conduct of the
+parties outside of the itself. [327] Still confining myself to
+conditions arising by construction of law,--that is to say, not
+directly and in terms attached to a promise by the literal
+meaning of the words in which it is expressed,--I now come to
+those which concern facts to which the contract does in some way
+refer.
+
+Such conditions may be found in contracts where the promise is
+only on one side. It has been said that where the contract is
+unilateral, and its language therefore is all that of the
+promisor, clauses in his favor will be construed as conditions
+more readily than the same words in a bilateral contract; indeed,
+that they must be so construed, because, if they do not create a
+condition, they do him no good, since ex hypothesi they are not
+promises by the other party. /1/ How far this ingenious
+suggestion has had a practical effect on doctrine may perhaps be
+doubted.
+
+But it will be enough for the purposes of this general survey to
+deal with bilateral contracts, where there are undertakings on
+both sides, and where the condition implied in favor of one party
+is that the other shall make good what he on his part has
+undertaken.
+
+The undertakings of a contract may be for the existence of a fact
+in the present or in the future. They can be promises only in the
+latter case; but in the former, they be equally essential terms
+in the bargain.
+
+Here again we come on the law of representations, but in a new
+phase. Being a part of the contract, it is always possible that
+their truth should make a condition of the contract wholly
+irrespective of any question of fraud. And it often is so in
+fact. It is not, however, every representation embodied in the
+words used on one side which will [328] make a condition in favor
+of the other party. Suppose A agrees to sell, and B agrees to
+buy, "A's seven-year-old sorrel horse Eclipse, now in the
+possession of B on trial," and in fact the horse is
+chestnut-colored, not sorrel. I do not suppose that B could
+refuse to pay for the horse on that ground. If the law were so
+foolish as to aim at merely formal consistency, it might indeed
+be said that there was as absolute a repugnancy between the
+different terms of this contract as in the ease of an agreement
+to sell certain barrels of mackerel, where the barrels turned out
+to contain salt. If this view were adopted, there would not be a
+contract subject to a condition, there would be no contract at
+all. But in truth there is a contract, and there is not even a
+condition. As has been said already, it is not every repugnancy
+that makes a contract void, and it is not every failure in the
+terms of the counter undertaking that makes it voidable. Here it
+plainly appears that the buyer knows exactly what he is going to
+get, and therefore that the mistake of color has no bearing on
+the bargain. /1/
+
+If, on the other hand, a contract contained a representation
+which was fraudulent, and which misled the party to whom it was
+made, the contract would be voidable on the same principles as if
+the representation had been made beforehand. But words of
+description in a contract are very frequently held to amount to
+what is sometimes called a warranty, irrespective of fraud.
+Whether they do so or not is a question to be determined by the
+court on grounds of common sense, looking to the meaning of the
+words, the importance in the transaction of the facts [329] which
+the words convey, and so forth. But when words of description are
+determined to be a warranty, the meaning of the decision is not
+merely that the party using them binds himself to answer for
+their truth, but that their truth is a condition of the contract.
+
+For instance, in a leading case /1/ the agreement was that the
+plaintiff's ship, then in the port of Amsterdam, should, with all
+possible despatch, proceed direct to Newport, England, and there
+load a cargo of coals for Hong Kong. At the date of the
+charter-party the vessel was not in Amsterdam, but she arrived
+there four days later. The plaintiff had notice that the
+defendant considered time important. It was held that the
+presence of the vessel in the port of Amsterdam at the date of
+the contract was a condition, the breach of which entitled the
+defendant to refuse to load, and to rescind the contract. If the
+view were adopted that a condition must be a future event, and
+that a promise purporting to be conditional on a past or present
+event is either absolute or no promise at all, it would follow
+that in this case the defendant had never made a promise. /2/ He
+had only promised if circumstances existed which did not exist. I
+have already stated my objections to this way of looking at such
+cases, /2/ and will only add that the courts, so far as I am
+aware, do not sanction it, and certainly did not in this
+instance.
+
+There is another ground for holding the charter-party void and no
+contract, instead of regarding it as only voidable, which is
+equally against authority, which nevertheless I have never been
+able to answer wholly to my satisfaction. In the case put, the
+representation of the lessor of the vessel [330] concerned the
+vessel itself, and therefore entered into the description of the
+thing the lessee agreed to take. I do not quite see why there is
+not as fatal a repugnancy between the different terms of this
+contract as was found in that for the sale of the barrels of salt
+described as containing mackerel. Why is the repugnancy between
+the two terms,--first, that the thing sold is the contents of
+these barrels, and, second, that it is mackerel--fatal to the
+existence of a contract? It is because each of those terms goes
+to the very root and essence of the contract, /1/--because to
+compel the buyer to take something answering to one, but not to
+the other requirement, would be holding him to do a substantially
+different thing from what he promised, and because a promise to
+take one and the same thing answering to both requirements is
+therefore contradictory in a substantial matter. It has been seen
+that the law does not go on any merely logical ground, and does
+not hold that every slight repugnancy will make a contract even
+voidable. But, on the other hand, when the repugnancy is between
+terms which are both essential, it is fatal to the very existence
+of the contract. How then do we decide whether a given term is
+essential? Surely the best way of finding out is by seeing how
+the parties have dealt with it. For want of any expression on
+their part we may refer to the speech and dealings of every day,
+/2/ and say that, if its absence would make the subject-matter a
+different thing, its presence is essential to the existence of
+the agreement. But the parties may agree that anything, however
+trifling, shall be essential, as well [331] as that anything,
+however important, shall not be; and if that essential is part of
+the contract description of a specific thing which is also
+identified by reference to the senses, how can there be a
+contract in its absence any more than if the thing is in popular
+speech different in kind from its description? The qualities that
+make sameness or difference of kind for the purposes of a
+contract are not determined by Agassiz or Darwin, or by the
+public at large, but by the will of the parties, which decides
+that for their purposes the characteristics insisted on are such
+and such. /1/1 Now, if this be true, what evidence can there be
+that a certain requirement is essential, that without it the
+subject-matter will be different in kind from the description,
+better than that one party has required and the other given a
+warranty of its presence? Yet the contract description of the
+specific vessel as now in the port of Amsterdam, although held to
+be an implied warranty, does not seem to have been regarded as
+making the contract repugnant and void, but only as giving the
+defendant the option of avoiding it. /2/ Even an express warranty
+of quality in sales does not have this effect, and in England,
+indeed, it does not allow the purchaser to rescind in case of
+breach. On this last point the law of Massachusetts is different.
+
+The explanation has been offered of the English doctrine with
+regard to sales, that, when the title has passed, the purchaser
+has already had some benefit from the contract, and therefore
+cannot wholly replace the seller in statu quo, as must be done
+when a contract is rescinded. /3/ This reasoning [332] seems
+doubtful, even to show that the contract is not voidable, but has
+no bearing on the argument that it is void. For if the contract
+is void, the title does not pass.
+
+It might be said that there is no repugnancy in the charterer's
+promise, because he only promises to load a certain ship, and
+that the words "now in the port of Amsterdam" are merely matter
+of history when the time for loading comes, and no part of the
+description of the vessel which he promised to load. But the
+moment those words are decided to be essential they become part
+of the description, and the promise is to load a certain vessel
+which is named the Martaban, and which was in the port of
+Amsterdam at the date of the contract. So interpreted, it is
+repugnant.
+
+Probably the true solution is to be found in practical
+considerations. At any rate, the fact is that the law has
+established three degrees in the effect of repugnancy. If one of
+the repugnant terms is wholly insignificant, it is simply
+disregarded, or at most will only found a claim for damages. The
+law would be loath to hold a contract void for repugnancy in
+present terms, when if the same terms were only promised a
+failure of one of them would not warrant a refusal to perform on
+the other side. If, on the other hand, both are of the extremest
+importance, so that to enforce the rest of the promise or bargain
+without one of them would not merely deprive one party of a
+stipulated incident, but would force a substantially different
+bargain on him, the promise will be void. There is an
+intermediate class of cases where it is left to the disappointed
+party to decide. But as the lines between the three are of this
+vague kind, it is not surprising that they have been differently
+drawn in different jurisdictions.
+
+[333] The examples which have been given of undertakings for a
+present state of facts have been confined to those touching the
+present condition of the subject-matter of the contract. Of
+course there is no such limit to the scope of their employment. A
+contract may warrant the existence of other facts as well, and
+examples of this kind probably might be found or imagined where
+it would be clear that the only effect of the warranty was to
+attach a condition to the contract, in favor of the other side,
+and where the question would be avoided whether there was not
+something more than a condition,--a repugnancy which prevented
+the formation of any contract at all. But the preceding
+illustrations are enough for the present purpose.
+
+We may now pass from undertakings that certain facts are true at
+the time of making the contract, to undertakings that certain
+facts shall be true at some later time,--that is, to promises
+properly so called. The question is when performance of the
+promise on one side is a condition to the obligation of the
+contract on the other. In practice, this question is apt to be
+treated as identical with another, which, as has been shown
+earlier, is a distinct point; namely, when performance on one
+side is a condition of the right to call for performance on the
+other. It is of course conceivable that a promise should be
+limited to the case of performance of the things promised on the
+other side, and yet that a failure of the latter should not
+warrant a rescission of the contract. Wherever one party has
+already received a substantial benefit under a contract of a kind
+which cannot be restored, it is too late to rescind, however
+important a breach may be committed later by the other side. Yet
+he may be [334] excused from going farther. Suppose a contract is
+made for a month's labor, ten dollars to be paid down, not to be
+recovered except in case of rescission for the laborer's fault,
+and thirty dollars at the end of the month. If the laborer should
+wrongfully stop work at the end of a fortnight, I do not suppose
+that the contract could be rescinded, and that the ten dollars
+could be recovered as money had and received; /1/ but, on the
+other hand, the employer would not be bound to pay the thirty
+dollars, and of course he could sue for damages on the contract.
+/2/
+
+But, for the most part, a breach of promise which discharges the
+promisee from further performance on his side will also warrant
+rescission, so that no great harm is done by the popular
+confusion of the two questions. Where the promise to perform on
+one side is limited to the case of performance on the other, the
+contract is generally conditioned on it also. In what follows, I
+shall take up the cases which I wish to notice without stopping
+to consider whether the contract was in a strict sense
+conditioned on performance of the promise on one side, or whether
+the true construction was merely that the promise on the other
+side was limited to that event.
+
+Now, how do we settle whether such a condition exists? It is easy
+to err by seeking too eagerly for simplicity, and by striving too
+hard to reduce all cases to artificial presumptions, which are
+less obvious than the decisions which they are supposed to
+explain. The foundation of the whole matter is, after all, good
+sense, as the courts have often said. The law means to carry out
+the intention of the parties, and, so far as they have not
+provided [335] for the event which has happened, it has to say
+what they naturally would have intended if their minds had been
+turned to the point. It will be found that decisions based on the
+direct implications of the language used, and others based upon a
+remoter inference of what the parties must have meant, or would
+have said if they had spoken, shade into each other by
+imperceptible degrees.
+
+Mr. Langdell has called attention to a very important principle,
+and one which, no doubt, throws light on many decisions. /1/ This
+is, that, where you have a bilateral contract, while the
+consideration of each promise is the counter promise, yet prima
+facie the payment for performance of one is performance of the
+other. The performance of the other party is what each means to
+have in return for his own. If A promises a barrel of flour to B,
+and B promises him ten dollars for it, A means to have the ten
+dollars for his flour, and B means to have the flour for his ten
+dollars. If no time is set for either act, neither can call on
+the other to perform without being ready at the same time
+himself.
+
+But this principle of equivalency is not the only principle to be
+drawn even from the form of contracts, without considering their
+subject-matter, and of course it is not offered as such in Mr.
+Langdell's work.
+
+Another very clear one is found in contracts for the sale or
+lease of a thing, and the like. Here the qualities or
+characteristics which the owner promises that the thing furnished
+shall possess, go to describe the thing which the buyer promises
+to accept. If any of the promised traits are wanting in the thing
+tendered, the buyer may refuse to accept, not merely on the
+ground that he has not [336] been offered the equivalent for
+keeping his promise, but also on the ground that he never
+promised to accept what is offered him. /1/ It has been seen
+that, where the contract contains a statement touching the
+condition of the thing at an earlier time than the moment for its
+acceptance, the past condition may not always be held to enter
+into the description of the thing to be accepted. But no such
+escape is possible here. Nevertheless there are limits to the
+right of refusal even in the present class of cases. If the thing
+promised is specific, the preponderance of that part of the
+description which identifies the object by reference to the
+senses is sometimes strikingly illustrated. One case has gone so
+far as to hold that performance of an executory contract to
+purchase a specific thing cannot be refused because it fails to
+come up to the warranted quality. /2/
+
+Another principle of dependency to be drawn from the form of the
+contract itself is, that performance of the promise on one side
+may be manifestly intended to furnish the means for performing
+the promise on the other. If a tenant should promise to make
+repairs, and the landlord should promise to furnish him wood for
+the purpose, it is believed that at the present day, whatever may
+have been the old decisions, the tenant's duty to repair would be
+dependent upon the landlord's furnishing the material when
+required. /3/
+
+[337] Another case of a somewhat exceptional kind is where a
+party to a bilateral contract agrees to do certain things and to
+give security for his performance. Here it is manifest good-sense
+to hold giving the security a condition of performance on the
+other side, if it be possible. For the requirement of security
+shows that the party requiring it was not content to rely on the
+simple promise of the other side, which he would be compelled to
+do if he had to perform before the security was given, and thus
+the very object of requiring it would be defeated. /1/
+
+This last case suggests what is very forcibly impressed on any
+one who studies the cases,--that, after all, the most important
+element of decision is not any technical, or even any general
+principle of contracts, but a consideration of the nature of the
+particular transaction as a practical matter. A promises B to do
+a day's work for two dollars, and B promises A to pay two
+dollars for a day's work. There the two promises cannot be
+performed at the same time. The work will take all day, the
+payment half a minute. How are you to decide which is to be done
+first, that is to say, which promise is dependent upon
+performance on the other side? It is only by reference to the
+habits of the community and to convenience. It is not enough to
+say that on the principle of equivalency a man is not presumed
+to intend to pay for a thing until he has it. The work is
+payment for the money, as much as the [338] money for the work,
+and one must be paid in advance. The question is, why, if one
+man is not presumed to intend to pay money until he has money's
+worth, the other is presumed to intend to give money's worth
+before he has money. An answer cannot be obtained from any
+general theory. The fact that employers, as a class, can be
+trusted for wages more safely than the employed for their labor,
+that the employers have had the power and have been the law-makers,
+or other considerations, it matters not what, have determined
+that the work is to be done first. But the grounds of
+decision are purely practical, and can never be elicited from
+grammar or from logic.
+
+A reference to practical considerations will be found to run all
+through the subject. Take another instance. The plaintiff
+declared on a mutual agreement between himself and the defendant
+that he would sell, and the defendant would buy, certain Donskoy
+wool, to be shipped by the plaintiff at Odessa, and delivered in
+England. Among the stipulations of the contract was one, that the
+names of the vessels should be declared as soon as the wools were
+shipped. The defence was, that the wool was bought, with the
+knowledge of both parties, for the purpose of reselling it in the
+course of the defendant's business; that it was an article of
+fluctuating value, and not salable until the names of the vessels
+in which it was shipped should have been declared according to
+the contract, but that the plaintiff did not declare the names of
+the vessels as agreed. The decision of the court was given by one
+of the greatest technical lawyers that ever lived, Baron Parke;
+yet he did not dream of giving any technical or merely logical
+reason for the decision, but, after stating in the above words
+the facts which were deemed material to the question [339]
+whether declaring the names of the vessels was a condition to the
+duty to accept, stated the ground of decision thus: "Looking at
+the nature of the contract, and the great importance of it to the
+object with which the contract was entered into with the
+knowledge of both parties, we think it was a condition
+precedent." /1/
+
+[340]
+
+
+
+
+LECTURE X. -- SUCCESSIONS AFTER DEATH.
+
+In the Lecture on Possession, I tried to show that the notion of
+possessing a right as such was intrinsically absurd. All rights
+are consequences attached to filling some situation of fact. A
+right which may be acquired by possession differs from others
+simply in being attached to a situation of such a nature that it
+may be filled successively by different persons, or by any one
+without regard to the lawfulness of his doing so, as is the case
+where the situation consists in having a tangible object within
+one's power.
+
+When a right of this sort is recognized by the law, there is no
+difficulty in transferring it; or, more accurately, there is no
+difficulty in different persons successively enjoying similar
+rights in respect of the subject-matter. If A, being the
+possessor of a horse or a field, gives up the possession to B,
+the rights which B acquires stand on the same ground as A's did
+before. The facts from which A's rights sprang have ceased to be
+true of A, and are now true of B. The consequences attached by
+the law to those facts now exist for B, as they did for A before.
+The situation of fact from which the rights spring is continuing
+one, and any one who occupies it, no matter how, has the rights
+attached to it. But there is no possession possible of a
+contract. The [341] fact that a consideration was given yesterday
+by A to B, and a promise received in return, cannot be laid hold
+of by X, and transferred from A to himself. The only thing can be
+transferred is the benefit or burden of the promise, and how can
+they be separated from the facts which gave rise to them? How, in
+short, can a man sue or be sued on a promise in which he had no
+part?
+
+Hitherto it has been assumed, in dealing with any special right
+or obligation, that the facts from which it sprung were true of
+the individual entitled or bound. But it often happens,
+especially in modern law, that a person acquires and is allowed
+to enforce a special right, although that facts which give rise
+to it are not true of him, or are true of him only in part. One
+of the chief problems of the law is to explain the machinery by
+which this result has been brought to pass.
+
+It will be observed that the problem is not coextensive with the
+whole field of rights. Some rights cannot be transferred by any
+device or contrivance; for instance, a man's right a to bodily
+safety or reputation. Others again are incident to possession,
+and within the limits of that conception no other is necessary.
+As Savigny said, "Succession does not apply to possession by
+itself." /1/
+
+But the notion of possession will carry us but a very little way
+in our understanding of the modern theory of transfer. That
+theory depends very largely upon the notion of succession, to use
+the word just quoted from Savigny, and accordingly successions
+will be the subject of this and the following Lecture. I shall
+begin by explaining the theory of succession to persons deceased,
+and after that is done shall pass to the theory of transfer
+between living [342] people, and shall consider whether any
+relation can be established between the two.
+
+The former is easily shown to be founded upon a fictitious
+identification between the deceased and his successor. And as a
+first step to the further discussion, as well as for its own
+sake, I shall briefly state the evidence touching the executor,
+the heir, and the devisee. In order to understand the theory of
+our law with regard to the first of these, at least, scholars are
+agreed that it is necessary to consider the structure and
+position of the Roman family as it was in the infancy of Roman
+society.
+
+Continental jurists have long been collecting the evidence that,
+in the earlier periods of Roman and German law alike, the unit of
+society was the family. The Twelve Tables of Rome still recognize
+the interest of the inferior members of the family in the family
+property. Heirs are called sui heredes, that is, heirs of
+themselves or of their own property, as is explained by Gaius.
+/1/ Paulus says that they are regarded as owners in a certain
+sense, even in the lifetime of their father, and that after his
+death they do not so much receive an inheritance as obtain the
+full power of dealing with their property. /2/
+
+Starting from this point it is easy to understand the [343]
+succession of heirs to a deceased paterfamilias in the Roman
+system. If the family was the owner of the property administered
+by a paterfamilias, its rights remained unaffected by the death
+of its temporary head. The family continued, although the head
+died. And when, probably by a gradual change, /1/ the
+paterfamilias came to be regarded as owner, instead of a simple
+manager of the family rights, the nature and continuity of those
+rights did not change with the title to them. The familia
+continued to the heirs as it was left by the ancestor. The heir
+succeeded not to the ownership of this or that thing separately,
+but to the total hereditas or headship of the family with certain
+rights of property as incident, /2/ and of course he took this
+headship, or right of representing the family interests, subject
+to the modifications effected by the last manager.
+
+The aggregate of the ancestor's rights and duties, or, to use the
+technical phrase, the total persona sustained by him, was easily
+separated from his natural personality. For this persona was but
+the aggregate of what had formerly been family rights and duties,
+and was originally sustained by any individual only as the family
+head. Hence it was said to be continued by the inheritance, /3/
+and when the heir assumed it he had his action in respect of
+injuries previously committed. /4/
+
+Thus the Roman heir came to be treated as identified with his
+ancestor for the purposes of the law. And thus it is clear how
+the impossible transfers which I seek to explain were
+accomplished in that instance. Rights to which B [344] as B could
+show no title, he could readily maintain under the fiction that
+he was the same person as A, whose title was not denied.
+
+It is not necessary at this point to study family rights in the
+German tribes. For it is not disputed that the modern executor
+derives his characteristics from the Roman heir. Wills also were
+borrowed from Rome, and were unknown to the Germans of Tacitus.
+/1/ Administrators were a later imitation of executors,
+introduced by statute for cases where there was no will, or
+where, for any other reason, executors were wanting.
+
+The executor has the legal title to the whole of the testator's
+personal estate, and, generally speaking, the power of
+alienation. Formerly he was entitled to the undistributed
+residue, not, it may fairly be conjectured, as legatee of those
+specific chattels, but because he represented the person of the
+testator, and therefore had all the rights which the testator
+would have had after distribution if alive. The residue is
+nowadays generally bequeathed by the will, but it is not even now
+regarded as a specific gift of the chattels remaining undisposed
+of, and I cannot help thinking that this doctrine echoes that
+under which the executor took in former times.
+
+No such rule has governed residuary devises of real estate, which
+have always been held to be specific in England down to the
+present day. So that, if a devise of land should fail, that land
+would not be disposed of by the residuary clause, but would
+descend to the heir as if there had been no will.
+
+Again, the appointment of an executor relates back to the date of
+the testator's death. The continuity of person [345] is preserved
+by this fiction, as in Rome it was by personifying the
+inheritance ad interim.
+
+Enough has been said to show the likeness between our executor
+and the Roman heir. And bearing in mind what was said about the
+heres, it will easily be seen how it came to be said, as it often
+was in the old books, that the executor "represents the person of
+his testator." /1/ The meaning of this feigned identity has been
+found in history, but the aid which it furnished in overcoming a
+technical difficulty must also be appreciated. If the executor
+represents the person of the testator, there is no longer any
+trouble in allowing him to sue or be sued on his testator's
+contracts. In the time of Edward III., when an action of covenant
+was brought against executors, Persay objected: "I never heard
+that one should have a writ of covenant against executors, nor
+against other person but the very one who made the covenant, for
+a man cannot oblige another person to a covenant by his deed
+except him who was party to the covenant." /2/ But it is useless
+to object that the promise sued upon was made by A, the testator,
+not by B, the executor, when the law says that for this purpose B
+is A. Here then is one class of cases in which a transfer is
+accomplished by the help of a fiction, which shadows, as fictions
+so often do, the facts of an early stage of society, and which
+could hardly have been invented had these facts been otherwise.
+
+Executors and administrators afford the chief, if not the only,
+example of universal succession in the English [346] law. But
+although they succeed per universitatem, as has been explained,
+they do not succeed to all kinds of property. The personal estate
+goes to them, but land takes another course. All real estate not
+disposed of by will goes to the heir, and the rules of
+inheritance are quite distinct from those which govern the
+distribution of chattels. Accordingly, the question arises
+whether the English heir or successor to real estate presents the
+same analogies to the Roman heres as the executor.
+
+The English heir is not a universal successor. Each and every
+parcel of land descends as a separate and specific thing.
+Nevertheless, in his narrower sphere he unquestionably represents
+the person of his ancestor. Different opinions have been held as
+to whether the same thing was true in early German law. Dr.
+Laband says that it was; /1/ Sohm takes the opposite view. /2/ It
+is commonly supposed that family ownership, at least of land,
+came before that of individuals in the German tribes, and it has
+been shown how naturally representation followed from a similar
+state of things in Rome. But it is needless to consider whether
+our law on this subject is of German or Roman origin, as the
+principle of identification has clearly prevailed from the time
+of Glanvill to the present day. If it was not known to the
+Germans, it is plainly accounted for by the influence of the
+Roman law. If there was anything of the sort in the Salic law, it
+was no doubt due to natural causes similar to those which gave
+rise to the principle at Rome. But in either event I cannot doubt
+that the modern doctrine has taken a good deal of its form, and
+perhaps some of its substance, from the mature system [347] of
+the civilians, in whose language it was so long expressed. For
+the same reasons that have just been mentioned, it is also
+needless to weigh the evidence of the Anglo-Saxon sources,
+although it seems tolerably clear from several passages in the
+laws that there was some identification. /1/
+
+As late as Bracton, two centuries after the Norman conquest, the
+heir was not the successor to lands alone, but represented his
+ancestor in a much more general sense, as will be seen directly.
+The office of executor, in the sense of heir, was unknown to the
+Anglo-Saxons, /2/ and even in Bracton's time does not seem to
+have been what it has since become. There is, therefore, no need
+to go back further than to the early Norman period, after the
+appointment of executors had become common, and the heir was more
+nearly what he is now.
+
+When Glanvill wrote, a little more than a century after the
+Conquest, the heir was bound to warrant the reasonable gifts of
+his ancestor to the grantees and their heirs; /3/ and if the
+effects of the ancestor were insufficient to pay his debts, the
+heir was bound to make up the deficiency from his own property.
+/4/ Neither Glanvill nor his Scotch imitator, the Regiam
+Majestatem, /5/ limits the liability to the amount of property
+inherited from the same source. This makes the identification of
+heir and ancestor as complete as that of the Roman law before
+such a limitation was introduced by Justinian. On the other hand,
+a century [348] later, it distinctly appears from Bracton, /1/
+that the heir was only bound so far as property had descended to
+him, and in the early sources of the Continent, Norman as well as
+other, the same limitation appears. /2/ The liabilities of the
+heir were probably shrinking. Britton and Fleta, the imitators of
+Bracton, and perhaps Bracton himself, say that an heir is not
+bound to pay his ancestor's debt, unless he be thereto especially
+bound by the deed of his ancestor. /3/ The later law required
+that the heir should be mentioned if he was to be held.
+
+But at all events the identification of heir and ancestor still
+approached the nature of a universal succession in the time of
+Bracton, as is shown by another statement of his. He asks if the
+testator can bequeath his rights of action, and answers, No, so
+far as concerns debts not proved and recovered in the testator's
+life. But actions of that sort belong to the heirs, and must be
+sued in the secular court; for before they are so recovered in
+the proper court, the executor cannot proceed for them in the
+ecclesiastical tribunal. /4/
+
+This shows that the identification worked both ways. The heir was
+liable for the debts due from his ancestor, and he could recover
+those which were due to him, until [349] the executor took his
+place in the King's Courts, as well as in those of the Church.
+Within the limits just explained the heir was also bound to
+warrant property sold by his ancestor to the purchaser and his
+heirs. /1/ It is not necessary, after this evidence that the
+modern heir began by representing his ancestor generally, to seek
+for expressions in later books, since his position has been
+limited. But just as we have seen that the executor is still said
+to represent the person of his testator, the heir was said to
+represent the person of his ancestor in the time of Edward I. /2/
+So, at a much later date, it was said that "the heir is in
+representation in point of taking by inheritance eadam persona
+cum antecessore," /3/ the same persona as his ancestor.
+
+A great judge, who died but a few years ago, repeats language
+which would have been equally familiar to the lawyers of Edward
+or of James. Baron Parke, after laying down that in general a
+party is not required to make profert of an instrument to the
+possession of which he is not entitled, says that there is an
+exception "in the cases of heir and executor, who may plead a
+release to the ancestor or testator whom they respectively
+represent; so also with respect to several tortfeasors, for in
+all these cases there is a privity between the parties which
+constitutes an identity of person." /4/
+
+But this is not all. The identity of person was carried [350]
+farther still. If a man died leaving male children, and owning
+land in fee, it went to the oldest son alone; but, if he left
+only daughters, it descended to them all equally. In this case
+several individuals together continued the persona of their
+ancestor. But it was always laid down that they were but one
+heir. /1/ For the purpose of working out this result, not only
+was one person identified with another, but several persons were
+reduced to one, that they might sustain a single persona.
+
+What was the persona? It was not the sum of all the rights and
+duties of the ancestor. It has been seen that for many centuries
+his general status, the sum of all his rights and duties except
+those connected with real property, has been taken up by the
+executor or administrator. The persona continued by the heir was
+from an early day confined to real estate in its technical sense;
+that is, to property subject to feudal principles, as
+distinguished from chattels, which, as Blackstone tells us, /2/
+include whatever was not a feud.
+
+But the heir's persona was not even the sum of all the ancestor's
+rights and duties in connection with real estate. It has been
+said already that every fee descends specifically, and not as
+incident to a larger universitas. This appears not so much from
+the fact that the rules of descent governing different parcels
+might be different, /3/ so that the same person would not be heir
+to both, as from the very nature of feudal property. Under the
+feudal system in its vigor, the holding of land was only one
+[351] incident of a complex personal relation. The land was
+forfeited for a failure to render the services for which it was
+granted; the service could be renounced for a breach of
+correlative duties on the part of the lord. /1/ It rather seems
+that, in the beginning of the feudal period under Charlemagne, a
+man could only hold land of one lord. /2/ Even when it had become
+common to hold of more than one, the strict personal relation was
+only modified so far as to save the tenant from having to perform
+inconsistent services. Glanvill and Bracton /3/ a tell us that a
+tenant holding of several lords was to do homage for each fee,
+but to reserve his allegiance for the lord of whom he held his
+chief estate; but that, if the different lords should make war
+upon each other, and the chief lord should command the tenant to
+obey him in person, the tenant ought to obey, saving the service
+due to the other lord for the fee held of him.
+
+We see, then, that the tenant had a distinct persona or status in
+respect of each of the fees which he held. The rights and duties
+incident to one of them had no relation to the rights and duties
+incident to another. A succession to one had no connection with
+the succession to another. Each succession was the assumption of
+a distinct personal relation, in which the successor was to be
+determined by the terms of the relation in question.
+
+The persona which we are seeking to define is the estate. Every
+fee is a distinct persona, a distinct hereditas, or inheritance,
+as it has been called since the time of Bracton. We have already
+seen that it may be sustained by more [352] than one where there
+are several heirs, as well as by one, just as a corporation may
+have more or less members. But not only may it be divided
+lengthwise, so to speak, among persons interested in the same way
+at the same time: it may also be cut across into successive
+interests, to be enjoyed one after another. In technical
+language, it may be divided into a particular estate and
+remainders. But they are all parts of the same fee, and the same
+fiction still governs them. We read in an old case that "he in
+reversion and particular tenant are but one tenant." /1/ This is
+only a statement of counsel, to be sure; but it is made to
+account for a doctrine which seems to need the explanation, to
+the effect that, after the death of the tenant for life, he in
+reversion might have error or attaint on an erroneous judgment or
+false verdict given against the tenant for life. /2/
+
+To sum up the results so far, the heir of modern English law gets
+his characteristic features from the law as it stood soon after
+the Conquest. At that time he was a universal successor in a very
+broad sense. Many of his functions as such were soon transferred
+to the executor. The heir's rights became confined to real
+estate, and his liabilities to those connected with real estate,
+and to obligations of his ancestor expressly binding him. The
+succession to each fee or feudal inheritance is distinct, not
+part of the sum of all the ancestor's rights regarded as one
+whole. But to this day the executor in his sphere, and the heir
+in his, represent the person of the deceased, and are treated as
+if they were one with him, for the purpose of settling their
+rights and obligations.
+
+The bearing which this has upon the contracts of the [353]
+deceased has been pointed out. But its influence is not confined
+to contract; it runs through everything. The most striking
+instance, however, is the acquisition of prescriptive rights.
+Take the case of a right of way. A right of way over a neighbor's
+land can only be acquired by grant, or by using it adversely for
+twenty years. A man uses a way for ten years, and dies. Then his
+heir uses it ten years. Has any right been acquired? If common
+sense alone is consulted, the answer must be no. The ancestor did
+not get any right, because he did not use the way long enough.
+And just as little did the heir. How can it better the heir's
+title that another man had trespassed before him? Clearly, if
+four strangers to each other used the way for five years each, no
+right would be acquired by the last. But here comes in the
+fiction which has been so carefully explained. From the point of
+view of the law it is not two persons who have used the way for
+ten years each, but one who has used it for twenty. The heir has
+the advantage of sustaining his ancestor's and the right is
+acquired.
+
+
+
+
+LECTURE X. -- SUCCESSIONS INTER VIVOS
+
+I now reach the most difficult and obscure part of the subject.
+It remains to be discovered whether the fiction of identity was
+extended to others besides the heir and executor. And if we find,
+as we do, that it went but little farther in express terms, the
+question will still arise whether the mode of thought and the
+conceptions made possible by the doctrine of inheritance have not
+silently modified the law as to dealings between the living. It
+seems to me demonstrable that their influence has been profound,
+and that, without understanding the theory of inheritance, it is
+impossible to understand the theory of transfer inter vivos.
+
+[354] The difficulty in dealing with the subject is to convince
+the sceptic that there is anything to explain. Nowadays, the
+notion that a right is valuable is almost identical with the
+notion that it may be turned into money by selling it. But it was
+not always so. Before you can sell a right, you must be able to
+make a sale thinkable in legal terms. I put the case of the
+transfer of a contract at the beginning of the Lecture. I have
+just mentioned the case of gaining a right by prescription, when
+neither party has complied with the requirement of twenty years'
+adverse use. In the latter instance, there is not even a right at
+the time of the transfer, but a mere fact of ten years' past
+trespassing. A way, until it becomes a right of way, is just as
+little susceptible of being held by a possessory title as a
+contract. If then a contract can be sold, if a buyer can add the
+time of his seller's adverse user to his own, what is the
+machinery by which the law works out the result?
+
+The most superficial acquaintance with any system of law in its
+earlier stages will show with what difficulty and by what slow
+degrees such machinery has been provided, and how the want of it
+has restricted the sphere of alienation. It is a great mistake to
+assume that it is a mere matter of common sense that the buyer
+steps into the shoes of the seller, according to our significant
+metaphor. Suppose that sales and other civil transfers had kept
+the form of warlike capture which it seems that they had in the
+infancy of Roman law, /1/ and which was at least [355] partially
+retained in one instance, the acquisition of wives, after the
+transaction had, in fact, taken the more civilized shape of
+purchase. The notion that the buyer came in adversely to the
+seller would probably have accompanied the fiction of adverse
+taking, and he would have stood on his own position as founding a
+new title. Without the aid of conceptions derived from some other
+source, it would have been hard to work out a legal transfer of
+objects which did not admit of possession.
+
+A possible source of such other conceptions was to be found in
+family law. The principles of inheritance furnished a fiction and
+a mode of thought which at least might have been extended into
+other spheres. In order to prove that they were in fact so
+extended, it will be necessary to examine once more the law of
+Rome, as well as the remains of German and Anglo-Saxon customs.
+
+I will take up first the German and Anglo-Saxon laws which are
+the ancestors of our own on one side of the house. For although
+what we get from those sources is not in the direct line of the
+argument, it lays a foundation for it by showing the course of
+development in different fields.
+
+The obvious analogy between purchaser and heir seems to have been
+used in the folk-laws, but mainly for another purpose than those
+which will have to be considered in the English law. This was to
+enlarge the sphere of alienability. It will be remembered that
+there are many traces of family ownership in early German, as
+well as in early Roman law; and it would seem that the transfer
+[356] of property which originally could not be given outside the
+family, was worked out through the form of making the grantee an
+heir.
+
+The history of language points to this conclusion. Heres, as
+Beseler /1/ and others have remarked, from meaning a successor to
+the property of a person deceased, was extended to the donee
+mortis causa, and even more broadly to grantees in general.
+Hereditare was used in like manner for the transfer of land.
+Hevin is quoted by Laferriere /2/ as calling attention to the
+fact that the ancient usage was to say heriter for purchase,
+heritier for purchaser, and desheriter for sell.
+
+The texts of the Salic law give us incontrovertible evidence. A
+man might transfer the whole or any part of his property /3/ by
+delivering possession of it to a trustee who, within twelve
+months, handed it over to the beneficiaries. /4/ To those, the
+text reads, whom the donor has named heredes (quos heredes
+appellavit). Here then was a voluntary transfer of more or less
+property at pleasure to persons freely chosen, who were not
+necessarily universal successors, if they ever were, and who
+nevertheless took under the name heredes. The word, which must
+have meant at first persons taking by descent, was extended to
+persons taking by purchase. /5/ If the word became enlarged in
+meaning, it is probably because the thought which it conveyed was
+turned to new uses. The transaction seems [357] to have fallen
+half-way between the institution of an heir and a sale. The later
+law of the Ripuarian Franks treats it more distinctly from the
+former point of view. It permits a man who has no sons to give
+all his property to whomsoever he chooses, whether relatives or
+strangers, as inheritance, either by way of adfathamire, as the
+Salic form was called, or by writing or delivery. /1/
+
+The Lombards had a similar transfer, in which the donee was not
+only called heres, but was made liable like an heir for the debts
+of the donor on receiving the property after the donor's death.
+/2/2 By the Salic law a man who could not pay the wergeld was
+allowed to transfer formally his house-lot, and with it the
+liability. But the transfer was to the next of kin. /3/
+
+The house-lot or family curtilage at first devolved strictly
+within the limits of the family. Here again, at least in England,
+freedom of alienation seems to have grown up by gradually
+increased latitude in the choice of successors. If we may trust
+the order of development to be noticed in the early charters,
+which it is hard to believe [358] accidental, although the
+charters are few, royal grants at first permitted an election of
+heirs among the kindred, and then extended it beyond them. In a
+deed of the year 679, the language is, "as it is granted so do
+you hold it and your posterity." One a century later reads,
+"which let him always possess, and after his death leave to which
+of his heirs he will." Another, "and after him with free power
+(of choice) leave to the man of his kin to whom he wishes to"
+(leave it). A somewhat earlier charter of 736 goes a step
+further: "So that as long as he lives he shall have the power of
+holding and possessing (and) of leaving it to whomsoever he
+choose, either in his lifetime, or certainly after his death." At
+the beginning of the ninth century the donee has power to leave
+the property to whomsoever he will, or, in still broader terms,
+to exchange or grant in his lifetime, and after his death to
+leave it to whom he chooses,--or to sell, exchange, and leave to
+whatsoever heir he chooses. /1/ This choice of heirs [359]
+recalls the quos heredes appellavit of the Salic law just
+mentioned, and may be compared with the language of a Norman
+charter of about the year 1190: "To W. and his heirs, to wit
+those whom he may constitute his heirs." /1/
+
+A perfect example of a singular succession worked out by the
+fiction of kinship is to be found in the story of Burnt Njal, an
+Icelandic saga, which gives us a living picture of a society
+hardly more advanced than the Salian Franks, as we see them in
+the Lex Salica. A lawsuit was to be transferred by the proper
+plaintiff to another more versed in the laws, and better able to
+carry it on,--in fact, to an attorney. But a lawsuit was at that
+time the alternative of a feud, and both were the peculiar affair
+of the family concerned. /2/ Accordingly, when a suit for killing
+a member of the family was to be handed over to a stranger, the
+innovation had to be reconciled with the theory that such suit
+belonged only to the next of kin. Mord is to take upon himself
+Thorgeir's suit against Flosi for killing Helgi, and the form of
+transfer is described as follows.
+
+"Then Mord took Thorgeir by the hand and named two witnesses to
+bear witness, 'that Thorgeir Thofir's son hands me over a suit
+for manslaughter against Flosi Thord's son, to plead it for the
+slaying of Helgi Njal's son, with all those proofs which have to
+follow the suit. Thou handest over to me this suit to plead and
+to settle, and to enjoy all rights in it, as though I were the
+rightful next of kin. Thou handest it over to me by law; and I
+[360] take it from thee by law.'" Afterwards, these witnesses
+come before the court, and bear witness to the transfer in like
+words: "He handed over to him then this suit, with all the proofs
+and proceedings which belonged to the suit, he handed it over to
+him to plead and to settle, and to make use of all rights, as
+though he were the rightful next of kin. Thorgeir handed it over
+lawfully, and Mord took it lawfully." The suit went on,
+notwithstanding the change of hands, as if the next of kin were
+plaintiff. This is shown by a further step in the proceedings.
+The defendant challenges two of the court, on the ground of their
+connection with Mord, the transferee, by blood and by baptism.
+But Mord replies that this is no good challenge; for "he
+challenged them not for their kinship to the true plaintiff, the
+next of kin, but for their kinship to him who pleaded the suit."
+And the other side had to admit that Mord was right in his law.
+
+I now turn from the German to the Roman sources. These have the
+closest connection with the argument, because much of the
+doctrine to be found there has been transplanted unchanged into
+modern law.
+
+The early Roman law only recognized as relatives those who would
+have been members of the same patriarchal family, and under the
+same patriarchal authority, had the common ancestor survived. As
+wives passed into the families of their husbands, and lost all
+connection with that in which they were born, relationship
+through females was altogether excluded. The heir was one who
+traced his relationship to the deceased through males alone. With
+the advance of civilization this rule was changed. The praetor
+gave the benefits of the inheritance to the blood relations,
+although they were not heirs, and could [361] not be admitted to
+the succession according to the ancient law. /1/ But the change
+was not brought about by repealing the old law, which still
+subsisted under the name of the jus civile. The new principle was
+accommodated to the old forms by a fiction. The blood relation
+could sue on the fiction that he was an heir, although he was not
+one in fact. /2/
+
+One the early forms of instituting an heir was a sale of the
+familia or headship of the family to the intended heir, with all
+its rights and duties. /3/ This sale of the universitas was
+afterwards extended beyond the case of inheritance to that of
+bankruptcy, when it was desired to put the bankrupt's property
+into the hands of a trustee for distribution. This trustee also
+could make use of the fiction, and sue as if he had been the
+bankrupt's heir. /4/ We are told by one of the great
+jurisconsults that in general universal successors stand in the
+place of heirs. /5/
+
+The Roman heir, with one or two exceptions, was always a
+universal successor; and the fiction of heirship, as such, could
+hardly be used with propriety except to enlarge the sphere of
+universal successions. So far as it extended, however, all the
+consequences attached to the original fiction of identity between
+heir and ancestor followed as of course.
+
+[362] To recur to the case of rights acquired by prescription,
+every universal successor could add the time of his predecessor's
+adverse use to his own in order to make out the right. There was
+no addition, legally speaking, but one continuous possession.
+
+The express fiction of inheritance perhaps stopped here. But when
+a similar joinder of times was allowed between a legatee or
+devisee (legatarius) and his testator, the same explanation was
+offered. It was said, that, when a specific thing was left to a
+person by will, so far as concerned having the benefit of the
+time during which the testator had been in possession for the
+purpose of acquiring a title, the legatee was in a certain sense
+quasi an heir. /1/ Yet a legatarius was not a universal
+successor, and for most purposes stood in marked contrast with
+such successors. /2/
+
+Thus the strict law of inheritance had made the notion familiar
+that one man might have the advantage of a position filled by
+another, although it was not filled, or was only partially
+filled, by himself; and the second fiction, by which the
+privileges of a legal heir in this respect as well as others had
+been extended to other persons, broke down the walls which might
+otherwise have confined those privileges to a single case. A new
+conception was introduced into the law, and there was nothing to
+hinder its further application. As has been shown, it was applied
+in terms to a sale of the universitas for business purposes, and
+to at least one case where the succession was confined to a
+single specific thing. Why, then, might not every gift or sale be
+regarded as a succession, so far as to insure the same
+advantages?
+
+[363] The joinder of times to make out a title was soon allowed
+between buyer and seller, and I have no doubt, from the language
+always used by the Roman lawyers, that it was arrived at in the
+way I have suggested. A passage from Scaevola (B. C. 30) will
+furnish sufficient proof. Joinder of possessions, he says, that
+is, the right to add the time of one's predecessor's holding to
+one's own, clearly belongs to those who succeed to the place of
+others, whether by contract or by will: for heirs and those who
+are treated as holding the place of successors are allowed to add
+their testator's possession to their own. Accordingly, if you
+sell me a slave I shall have the benefit of your holding. /1/
+
+The joinder of times is given to those who succeed to the place
+of another. Ulpian cites a like phrase from a jurisconsult of the
+time of the Antonines,--"to whose place I have succeeded by
+inheritance, or purchase, or any other right." /2/ Succedere in
+locum aliorum, like sustinere personam, is an expression of the
+Roman lawyers for those continuations of one man's legal position
+by another of which the type was the succession of heir to
+ancestor. Suecedere alone is used in the sense of inherit, /3/
+and successio in that of "inheritance." /4/ The succession par
+excellence was the inheritance; and it is believed that scarcely
+any instance will be found in the Roman sources where
+"succession" does not convey that analogy, and indicate the
+partial [364] assumption, at least, of a persona formerly
+sustained by another. It clearly does so in the passage before
+us.
+
+But the succession which admits a joinder of times is not
+hereditary succession alone. In the passage which has been cited
+Scaevola says that it may be by contract or purchase, as well as
+by inheritance or will. It may be singular, as well as universal.
+The jurists often mention antithetically universal successions
+and those confined to a single specific thing. Ulpian says that a
+man succeeds to another's place, whether his succession be
+universal or to the single object. /1/
+
+If further evidence were wanting for the present argument, it
+would be found in another expression of Ulpian's. He speaks of
+the benefit of joinder as derived from the persona of the
+grantor. "He to whom a thing is granted shall have the benefit of
+joinder from the persona of his grantor." /2/ A benefit cannot be
+derived from a persona except by sustaining it.
+
+It farther appears pretty plainly from Justinian's Institutes and
+the Digest, that the benefit was not extended to purchasers in
+all cases until a pretty late period. /3/
+
+Savigny very nearly expressed the truth when he said, somewhat
+broadly, that "every accessio, for whatever purpose, presupposes
+nothing else than a relation of juridical [365] succession
+between the previous and present possessor. For succession does
+not apply to possession by itself." /1/ And I may add, by way of
+further explanation, that every relation of juridical succession
+presupposes either an inheritance or a relation to which, so far
+as it extends, the analogies of the inheritance may be applied.
+
+The way of thinking which led to the accessio or joinder of times
+is equally visible in other cases. The time during which a former
+owner did not use an casement was imputed to the person who had
+succeeded to his place. /2/ The defence that the plaintiff had
+sold and delivered the thing in controversy was available not
+only to the purchaser, but to his heirs or to a second purchaser,
+even before delivery to him, against the successors of the
+seller, whether universal or only to the thing in question. /3/
+If one used a way wrongfully as against the predecessor in title,
+it was wrongful as against the successor, whether by inheritance,
+purchase, or any other right. /4/ The formal oath of a party to
+an action was conclusive in favor of his successors, universal or
+singular. /5/ Successors by purchase or gift had the [366]
+benefit of agreements made with the vendor. /1/ A multitude of
+general expressions show that for most purposes, whether of
+action or defence, the buyer stood in the shoes of the seller, to
+use the metaphor of our own law. /2/ And what is more important
+than the result, which often might have been reached by other
+ways, the language and analogies are drawn throughout from the
+succession to the inheritance.
+
+Thus understood, there could not have been a succession between a
+person dispossessed of a thing against his will and the wrongful
+possessor. Without the element of consent there is no room for
+the analogy just explained. Accordingly, it is laid down that
+there is no joinder of times when the possession is wrongful, /3/
+and the only enumerated means of succeeding in rem are by will,
+sale, gift, or some other right.
+
+The argument now returns to the English law, fortified with some
+general conclusions. It has been shown that in both the systems
+from whose union our law arose the rules governing conveyance, or
+the transfer of specific [367] objects between living persons,
+were deeply affected by notions drawn from inheritance. It had
+been shown previously that in England the principles of
+inheritance applied directly to the singular succession of the
+heir to a specific fee, as well as to the universal succession of
+the executor. It would be remarkable, considering their history,
+if the same principles had not affected other singular
+successions also. It will soon appear that they have. And not to
+be too careful about the order of proof, I will first take up the
+joinder of times in prescription, as that has just been so fully
+discussed. The English law of the subject is found on examination
+to be the same as the Roman in extent, reason, and expression. It
+is indeed largely copied from that source. For servitudes, such
+as rights of way, light, and the like, form the chief class of
+prescriptive rights, and our law of servitudes is mainly Roman.
+Prescriptions, it is said, "are properly personal, and therefore
+are always alleged in the person of him who prescribes, viz. that
+he and all those whose estate he hath, &c.; therefore, a bishop
+or a parson may prescribe,... for there is a perpetual estate,
+and a perpetual succession and the successor hath the very same
+estate which his predecessor had, for that continues, though the
+person alters, like the case of the ancestor and the heir." /1/
+So in a modern case, where by statute twenty years' dispossession
+extinguished the owner's title, the Court of Queen's Bench said
+that probably the right would be transferred to the possessor "if
+the same person, or several persons, claiming one from the other
+by descent, will [368] or conveyance, had been in possession for
+the twenty years." "But.... such twenty years' possession must
+be either by the same person, or several persons claiming one
+from the other, which is not the case here." /1/
+
+In a word, it is equally clear that the continuous possession of
+privies in title, or, in Roman phrase, successors, has all the
+effect of the continuous possession of one, and that such an
+effect is not attributed to the continuous possession of
+different persons who are not in the same chain of title. One who
+dispossesses another of land cannot add the time during which his
+disseisee has used a way to the period of his own use, while one
+who purchased can. /2/
+
+The authorities which have been quoted make it plain that the
+English law proceeds on the same theory as the Roman. One who
+buys land of another gets the very same estate which his seller
+had. He is in of the same fee, or hereditas, which means, as I
+have shown, that he sustains the same persona. On the other hand,
+one who wrongfully dispossesses another,--a disseisor,--gets a
+different estate, is in of a new fee, although the land is the
+same; and much technical reasoning is based upon this doctrine.
+
+In the matter of prescription, therefore, buyer and seller were
+identified, like heir and ancestor. But the question [369]
+remains whether this identification bore fruit in other parts of
+the law also, or whether it was confined to one particular
+branch, where the Roman law was grafted upon the English stock.
+
+There can be no doubt which answer is most probable, but it
+cannot be proved without difficulty. As has been said, the heir
+ceased to be the general representative of his ancestor at an
+early date. And the extent to which even he was identified came
+to be a matter of discussion. Common sense kept control over
+fiction here as elsewhere in the common law. But there can be no
+doubt that in matters directly concerning the estate the
+identification of heir and ancestor has continued to the present
+day; and as an estate in fee simple has been shown to be a
+distinct persona, we should expect to find a similar
+identification of buyer and seller in this part of the law, if
+anywhere.
+
+Where the land was devised by will, the analogy applied with
+peculiar ease. For although there is no difference in principle
+between a devise of a piece of land by will and a conveyance of
+it by deed, the dramatic resemblance of a devisee to an heir is
+stronger than that of a grantee. It will be remembered that one
+of the Roman jurists said that a legatarius (legatee or devisee)
+was in a certain sense quasi heres. The English courts have
+occasionally used similar expressions. In a case where a testator
+owned a rent, and divided it by will among his sons, and then one
+of the sons brought debt for his part, two of the judges, while
+admitting that the testator could not have divided the tenant's
+liability by a grant or deed in his lifetime, thought that it was
+otherwise with regard to a division by will. Their reasoning was
+that "the devise is quasi [370] an act of law, which shall inure
+without attornment, and shall make a sufficient privity, and so
+it may well be apportioned by this means." /1/ So it was said by
+Lord Ellenborough, in a case where a lessor and his heirs were
+entitled to terminate a lease on notice, that a devisee of the
+land as heres factus would be understood to have the same right.
+/2/
+
+But wills of land were only exceptionally allowed by custom until
+the reign of Henry VIII., and as the main doctrines of
+conveyancing had been settled long before that time, we must look
+further back and to other sources for their explanation. We shall
+find it in the history of warranty. This, and the modern law of
+covenants running with the land, will be treated in the next
+Lecture.
+
+[371]
+
+
+
+
+LECTURE XI. -- SUCCESSIONS.--II. INTER VIVOS.
+
+The principal contracts known to the common law and suable in the
+King's Courts, a century after the Conquest, were suretyship and
+debt. The heir, as the general representative of his ancestor's
+rights and obligations, was liable for his debts, and was the
+proper person to sue for those which were due the estate. By the
+time of Edward III. this had changed. Debts had ceased to concern
+the heir except secondarily. The executor took his place both for
+collection and payment. It is said that even when the heir was
+bound he could not be sued except in case the executor had no
+assets. /1/
+
+But there was another ancient obligation which had a different
+history. I refer to the warranty which arose upon the transfer of
+property. We should call it a contract, but it probably presented
+itself to the mind of Glanvill's predecessors simply as a duty or
+obligation attached by law to a transaction which was directed to
+a different point; just as the liability of a bailee, which is
+now treated as arising from his undertaking, was originally
+raised by the law out of the position in which he stood toward
+third persons.
+
+After the Conquest we do not hear much of warranty, except in
+connection with land, and this fact will at once [372] account
+for its having had a different history from debt. The obligation
+of warranty was to defend the title, and, if the defence failed,
+to give to the evicted owner other land of equal value. If an
+ancestor had conveyed lands with warranty, this obligation could
+not be fulfilled by his executor, but only by his heir, to whom
+his other lands had descended. Conversely as to the benefit of
+warranties made to a deceased grantee, his heir was the only
+person interested to enforce such warranties, because the land
+descended to him. Thus the heir continued to represent his
+ancestor in the latter's rights and obligations by way of
+warranty, after the executor had relieved him of the debts, just
+as before that time he had represented his ancestor in all
+respects.
+
+If a man was sued for property which he had bought from another,
+the regular course of litigation was for the defendant to summon
+in his seller to take charge of the defence, and for him, in
+turn, to summon in his, if he had one, and so on until a party
+was reached in the chain of title who finally took the burden of
+the case upon himself. A contrast which was early stated between
+the Lombard and the Roman law existed equally between the
+Anglo-Saxon and the Roman. It was said that the Lombard presents
+his grantor, the Roman stands in his grantor's
+shoes,--Langobardus dat auctorem, Romanus stat loco auctoris. /1/
+
+Suppose, now, that A gave land to B, and B conveyed over to C. If
+C was sued by D, claiming a better title, C practically got the
+benefit of A's warranty, /2/ because, when he summoned B, B would
+summon A, and thus A [373] would defend the case in the end. But
+it might happen that between the time when B conveyed to C, and
+the time when the action was begun, B had died. If he left an
+heir, C might still be protected. But supposing B left no heir, C
+got no help from A, who in the other event would have defended
+his suit. This no doubt was the law in the Anglo-Saxon period,
+but it was manifestly unsatisfactory. We may conjecture, with a
+good deal of confidence, that a remedy would be found as soon as
+there was machinery to make it possible. This was furnished by
+the Roman law. According to that system, the buyer stood in the
+place of his seller, and a fusion of the Roman with the
+Anglo-Saxon rule was all that was needed.
+
+Bracton, who modelled his book upon the writings of the mediaeval
+civilians, shows how this thought was used. He first puts the
+case of a conveyance with the usual clause binding the grantor
+and his heirs to warrant and defend the grantee and his heirs. He
+then goes on: "Again one may make his gift greater and make other
+persons quasi heirs [of his grantee], although, in fact, they are
+not heirs, as when he says in the gift, to have and to hold to
+such a one and his heirs, or to whomsoever he shall choose to
+give or assign the said land, and I and my heirs will warrant to
+the said so and so, and his heirs, or to whomsoever he shall
+choose to give or assign the said land, and their heirs, against
+all persons. In which case if the grantee shall have given or
+assigned the land, and then have died without heirs, the [first]
+grantor and his heirs begin to hold the place of the first
+grantee and his heirs, and are in place of the first grantee's
+heir (pro herede) so far as concerns warranting to his assigns
+and their heirs [374] according to the clause contained in the
+first grantor's charter, which would not be but for the mention
+of assigns in the first gift. But so long as the first grantee
+survives, or his heirs, they are held to warranty, and not the
+first grantor." /1/
+
+Here we see that, in order to entitle the assign to the benefit
+of the first grantor's warranty, assigns must be mentioned in the
+original grant and covenant. The scope of the ancient obligation
+was not extended without the warrantor's assent. But when it was
+extended, it was not by a contrivance like a modern letter of
+credit. Such a conception would have been impossible in that
+stage of the law. By mentioning assigns the first grantor did not
+offer a covenant to any person who would thereafter purchase the
+land. If that had been the notion, there would have been a
+contract directly binding the first grantor to the assign, as
+soon as the land was sold, and thus there would have been two
+warranties arising from the same clause,--one to the first
+grantee, a second to the assign. But in fact the assign recovered
+on the original warranty to the first grantee. /2/ He could only
+come on the first grantor after a failure of his immediate
+grantor's heirs. The first grantor by mentioning assigns simply
+enlarged the limits of his grantee's succession. The assign could
+vouch the first grantor only on the principles of succession.
+That is to say, he could only do so when, by the failure of the
+first grantee's blood, the first grantee's feudal relation to the
+first grantor, his persona, came to be sustained by the assign.
+/3/
+
+[375] This was not only carrying out the fiction with technical
+consistency, but was using it with good sense, as fictions
+generally have been used in the English law. Practically it made
+little difference whether the assign got the benefit of the first
+grantor's warranty mediately or immediately, if he got it. The
+trouble arose where he could not summon the mesne grantor, and
+the new right was given him for that case alone. Later, the
+assign did not have to wait for the failure of his immediate
+grantor's blood, but could take advantage of the first grantor's
+warranty from the beginning. /1/
+
+If it should be suggested that what has been said goes to show
+that the first grantor's duty to warrant arose from the assign's
+becoming his man and owing homage, the answer is that he was not
+bound unless he had mentioned assigns in his grant, homage or no
+homage. In this Bracton is confirmed by all the later
+authorities. /2/
+
+Another rule on which there are vast stores of forgotten learning
+will show how exactly the fiction fell in with the earlier law.
+Only those who were privy in estate with the person to whom the
+warranty was originally given, could vouch the original
+warrantor. Looking back to the early [376] procedure, it will be
+seen that of course only those in the same chain of title could
+even mediately get the benefit of a former owner's warranty. The
+ground on which a man was bound to warrant was that he had
+conveyed the property to the person who summoned him. Hence a man
+could summon no one but his grantor, and the successive vouchers
+came to an end when the last vouchee could not call on another
+from whom he had bought. Now when the process was abridged, no
+persons were made liable to summons who would not have been
+liable before. The present owner was allowed to vouch directly
+those who otherwise would have been indirectly bound to defend
+his title, but no others. Hence he could only summon those from
+whom his grantor derived his title. But this was equally well
+expressed in terms of the fiction employed. In order to vouch,
+the present owner must have the estate of the person to whom the
+warranty was made. As every lawyer knows, the estate does not
+mean the land. It means the status or persona in regard to that
+land formerly sustained by another. The same word was used in
+alleging a right by prescription, "that he and those whose estate
+he hath have for time whereof memory runneth not to the
+contrary," &c.; and it will be remembered that the word
+corresponds to the same requirement of succession there.
+
+To return to Bracton, it must be understood that the description
+of assigns as quasi heredes is not accidental. He describes them
+in that way whenever he has occasion to speak of them. He even
+pushes the reasoning drawn from the analogy of inheritance to
+extremes, and refers to it in countless passages. For instance:
+"It should be noted that of heirs some are true heirs and some
+quasi [377] heirs, in place of heirs, &c.; true heirs by way of
+succession quasi heirs, &c. by the form of the gift; such as
+assigns," &c. /1/
+
+If it should be suggested that Bracton's language is only a piece
+of mediaeval scholasticism, there are several answers. In the
+first place it is nearly contemporaneous with the first
+appearance of the right in question. This is shown by his citing
+authority for it as for something which might be disputed. He
+says, "And that warranty must be made to assigns according to the
+form of the gift is proved [by a case] in the circuit of W. de
+Ralegh, about the end of the roll,"&c. /2/ It is not justifiable
+to assume that a contemporary explanation of a new rule had
+nothing to do with its appearance. Again, the fact is clear that
+the assign got the benefit of the warranty to the first grantee,
+not of a new one to himself, as has been shown, and Bracton's
+explanation of how this was worked out falls in with what has
+been seen of the course of the German and Anglo-Saxon law, and
+with the pervading thought of the Roman law. Finally, and most
+important, the requirement that the assign should be in of the
+first grantee's estate has remained a requirement from that day
+to this. The fact that the same thing is required in the same
+words as in prescription goes far to show that the same technical
+thought has governed both.
+
+I have said, Glanvill's predecessors probably regarded warranty
+as an obligation incident to a conveyance, rather than as a
+contract. But when it became usual to insert the undertaking to
+warrant in a deed or charter of feoffment, it lost something of
+its former isolation as a duty standing by itself, and admitted
+of being [378] generalized. It was a promise by deed, and a
+promise by deed was a covenant. /1/ This was a covenant having
+peculiar consequences attached to it, no doubt. It differed also
+in the scope of its obligation from some other covenants, as will
+be shown hereafter. But still it was a covenant, and could
+sometimes be sued on as such. It was spoken of in the Year Books
+of Edward III. as a covenant which "falls in the blood," /2/ as
+distinguished from those where the acquittance fell on the land,
+and not on the person. /3/
+
+The importance of this circumstance lies in the working of the
+law of warranty upon other covenants which took its place. When
+the old actions for land gave way to more modern and speedier
+forms, warrantors were no longer vouched in to defend, and if a
+grantee was evicted, damages took the place of a grant of other
+land. The ancient warranty disappeared, and was replaced by the
+covenants which we still find in our deeds, including the
+covenants for seisin, for right to convey, against incumbrances,
+for quiet enjoyment, of warranty, and for further assurance. But
+the principles on which an assign could have the benefit of these
+covenants were derived from those which governed warranty, as any
+one may see by looking at the earlier decisions.
+
+For instance, the question, what was a sufficient assignment to
+give an assign the benefit of a covenant for quiet enjoyment, was
+argued and decided on the authority of the old cases of warranty.
+/4/
+
+[379] The assign, as in warranty, came in under the old covenant
+with the first covenantee, not by any new right of his own. Thus,
+in an action by an assign on a covenant for further assurance,
+the defendant set up a release by the original covenantee after
+the commencement of the suit. The court held that the assignee
+should have the benefit of the covenant. "They held, that
+although the breach was in the time of the assignee, yet if the
+release had been by the covenantee (who is a party to the deed,
+and from whom the plaintiff derives) before any breach, or before
+the suit commenced, it had been a good bar to the assignee from
+bringing this writ of covenant. But the breach of the covenant
+being in the time of the assignee,... and the action brought by
+him, and so attached in his person, the covenantee cannot release
+this action wherein the assignee is interested." /1/ The
+covenantee even after assignment remains the legal party to the
+contract. The assign comes in under him, and does not put an end
+to his control over it, until by breach and action a new right
+attaches in the assign's person, distinct from the rights derived
+from the persona of his grantor. Later, the assign got a more
+independent standing, as the original foundation of his rights
+sunk gradually out of sight, and a release after assignment
+became ineffectual, at least in the case of a covenant to pay
+rent. /2/
+
+Only privies in estate with the original covenantee can have the
+benefit of covenants for title. It has been shown that a similar
+limitation of the benefits of the ancient [380] warranty was
+required by its earlier history before the assign was allowed to
+sue, and that the fiction by which he got that right could not
+extend it beyond that limit. This analogy also was followed. For
+instance, a tenant in tail male made a lease for years with
+covenants of right to let and for quiet enjoyment, and then died
+without issue male. The lessee assigned the lease to the
+plaintiff. The latter was soon turned out, and thereupon brought
+an action upon the covenant against the executor of the lessor.
+It was held that he could not recover, because he was not privy
+in estate with the original covenantee. For the lease, which was
+the original covenantee's estate, was ended by the death of the
+lessor and termination of the estate tail out of which the lease
+was granted, before the form of assignment to the plaintiff. /1/
+
+The only point remaining to make the analogy between covenants
+for title and warranty complete was to require assigns to be
+mentioned in order to enable them to sue. In modern times, of
+course, such a requirement, if it should exist, would be purely
+formal, and would be of no importance except as an ear-mark by
+which to trace the history of a doctrine. It would aid our
+studies if we could say that wherever assigns are to get the
+benefit of a covenant as privies in estate with the covenantee,
+they must be mentioned in the covenant. Whether such a
+requirement does exist or not would be hard to tell from the
+decisions alone. It is commonly supposed not to. But the popular
+opinion on this trifling point springs from a failure to
+understand one of the great antinomies of the law, which must now
+be explained.
+
+So far as we have gone, we have found that, wherever [381] one
+party steps into the rights or obligations of another, without in
+turn filling the situation of fact of which those rights or
+obligations are the legal consequences, the substitution is
+explained by a fictitious identification of the two individuals,
+which is derived from the analogy of the inheritance. This
+identification has been seen as it has been consciously worked
+out in the creation of the executor, whose entire status is
+governed by it. It has been seen still consciously applied in the
+narrower sphere of the heir. It has been found hidden at the root
+of the relation between buyer and seller in two cases at least,
+prescription and warranty, when the history of that relation is
+opened to a sufficient depth.
+
+But although it would be more symmetrical if this analysis
+exhausted the subject, there is another class of cases in which
+the transfer of rights takes place upon a wholly different plan.
+In explaining the succession which is worked out between buyer
+and seller for the purpose of creating a prescriptive right, such
+as a right of way over neighboring land to the land bought and
+sold, it was shown that one who, instead of purchasing the land,
+had wrongfully possessed himself of it by force, would not be
+treated as a successor, and would get no benefit from the
+previous use of the way by his disseisee. But when the former
+possessor has already gained a right of way before he is turned
+out, a new principle comes into operation. If the owner of the
+land over which the way ran stopped it up, and was sued by the
+wrongful possessor, a defence on the ground that the disseisor
+had not succeeded to the former owner's rights would not prevail.
+The disseisor would be protected in his possession of the land
+against all but the rightful owner, and he would equally be
+protected [382] in his use of the way. This rule of law does not
+stand on a succession between the wrongful possessor and the
+owner, which is out of the question. Neither can it be defended
+on the same ground as the protection to the occupation of the
+land itself. That ground is that the law defends possession
+against everything except a better title. But, as has been said
+before, the common law does not recognize possession of a way. A
+man who has used a way ten years without title cannot sue even a
+stranger for stopping it. He was a trespasser at the beginning,
+he is nothing but a trespasser still. There must exist a right
+against the servient owner before there is a right against
+anybody else. At the same time it is clear that a way is no more
+capable of possession because somebody else has a right to it,
+than if no one had.
+
+How comes it, then, that one who has neither title nor possession
+is so far favored? The answer is to be found, not in reasoning,
+but in a failure to reason. In the first Lecture of this course
+the thought with which we have to deal was shown in its
+theological stage, to borrow Comte's well-known phraseology, as
+where an axe was made the object of criminal process; and also in
+the metaphysical stage, where the language of personification
+alone survived, but survived to cause confusion of reasoning. The
+case put seems to be an illustration of the latter. The language
+of the law of easements was built up out of similes drawn from
+persons at a time when the noxoe deditio was still familiar; and
+then, as often happens, language reacted upon thought, so that
+conclusions were drawn as to the rights themselves from the terms
+in which they happened to be expressed. When one estate was said
+to be enslaved to another, or a right of way was said to be a
+quality or [383] incident of a neighboring piece of land, men's
+minds were not alert to see that these phrases were only so many
+personifying metaphors, which explained nothing unless the figure
+of speech was true.
+
+Rogron deduced the negative nature of servitudes from the rule
+that the land owes the services, not the person,--Proedium non
+persona servit. For, said Rogron, the land alone being bound, it
+can only be bound passively. Austin called this an "absurd
+remark." /1/ But the jurists from whom we have inherited our law
+of easements were contented with no better reasoning. Papinian
+himself wrote that servitudes cannot be partially extinguished,
+because they are due from lands, not persons. /2/ Celsus thus
+decides the case which I took for my illustration: Even if
+possession of a dominant estate is acquired by forcibly ejecting
+the owner, the way will be retained; since the estate is
+possessed in such quality and condition as it is when taken. /3/
+The commentator Godefroi tersely adds that there are two such
+conditions, slavery and freedom; and his antithesis is as old as
+Cicero. /4/ So, in another passage, Celsus asks, What else are
+the rights attaching to land but qualities of that land? /5/ So
+Justinian's Institutes speak of servitudes which inhere in
+buildings. /6/ So Paulus [384] speaks of such rights as being
+accessory to bodies. "And thus," adds Godefroi, "rights may
+belong to inanimate things." /1/ It easily followed from all this
+that a sale of the dominant estate carried existing easements,
+not because the buyer succeeded to the place of the seller, but
+because land is bound to land. /2/
+
+All these figures import that land is capable of having rights,
+as Austin recognizes. Indeed, he even says that the land "is
+erected into a legal or fictitious person, and is styled
+'praedium dominans.'" /3/ But if this means anything more than to
+explain what is implied by the Roman metaphors, it goes too far.
+The dominant estate was never "erected into a legal person,"
+either by conscious fiction or as a result of primitive beliefs.
+/4/ It could not sue or be sued, like a ship in the admiralty. It
+is not supposed that its possessor could maintain an action for
+an interference with an easement before his time, as an heir
+could for an injury to property of the hereditas jacens. If land
+had even been systematically treated as capable of acquiring
+rights, the time of a disseisee might have been added to that Of
+the wrongful occupant, on the ground that the land, and not this
+or that individual, was gaining the easement, and that long
+association between the enjoyment of the privilege and the land
+was sufficient, which has never been the law.
+
+All that can be said is, that the metaphors and similes employed
+naturally led to the rule which has prevailed, [385] and that, as
+this rule was just as good as any other, or at least was
+unobjectionable, it was drawn from the figures of speech without
+attracting attention, and before any one had seen that they were
+only figures, which proved nothing and justified no conclusion.
+
+As easements were said to belong to the dominant estate, it
+followed that whoever possessed the land had a right of the same
+degree over what was incidental to it. If the true meaning had
+been that a way or other easement admits of possession, and is
+taken possession of with the land to which it runs, and that its
+enjoyment is protected on the same grounds as possession in other
+cases, the thought could have been understood. But that was not
+the meaning of the Roman law, and, as has been shown, it is not
+the doctrine of ours. We must take it that easements have become
+an incident of land by an unconscious and unreasoned assumption
+that a piece of land can have rights. It need not be said that
+this is absurd, although the rules of law which are based upon it
+are not so.
+
+Absurd or not, the similes as well as the principles of the Roman
+law reappear in Bracton. He says, "The servitude by which land is
+subjected to [other] land, is made on the likeness of that by
+which man is made the slave of man." /1/ "For rights belong to a
+free tenement, as well as tangible things.... They may be called
+rights or liberties with regard to the tenements to which they
+are owed, but servitudes with regard to the tenements by which
+they are owed.... One estate is free, the other subjected to
+slavery." /2/ "[A servitude] may be called an arrangement by
+which house is subjected to house, farm to [386] farm, holding to
+holding." /1/ No passage has met my eye in which Bracton
+expressly decides that an easement goes with the dominant estate
+upon a disseisin, but what he says leaves little doubt that he
+followed the Roman law in this as in other things.
+
+The writ against a disseisor was for "so much land and its
+appurtenances," /2/ which must mean that he who had the land even
+wrongfully had the appurtenances. So Bracton says an action is in
+rem "whether it is for the principal thing, or for a right which
+adheres to the thing,... as when one sues for a right of way,
+... since rights of this sort are all incorporeal things, and are
+quasi possessed and reside in bodies, and cannot be got or kept
+without the bodies in which they inhere, nor in any way had
+without the bodies to which they belong." /3/ And again, "Since
+rights do not admit of delivery, but are transferred with the
+thing in which they are, that is, the bodily thing, he to whom
+they are transferred forthwith has a quasi possession of those
+rights as soon as he has the body in which they are." /4/
+
+There is no doubt about the later law, as has been said at the
+outset.
+
+We have thus traced two competing and mutually inconsistent
+principles into our law. On the one hand is the conception of
+succession or privity; on the other, that of rights inhering in a
+thing. Bracton seems to have vacillated a little from a feeling
+of the possibility of conflict between the two. The benefit of a
+warranty was confined to those who, by the act and consent of the
+[387] grantee, succeeded to his place. It did not pass to assigns
+unless assigns were mentioned. Bracton supposes grants of
+easements with or without mention of assigns, which looks as if
+he thought the difference might be material with regard to
+easements also. He further says, that if an easement be granted
+to A, his heirs and assigns, all such by the form of the grant
+are allowed the use in succession, and all others are wholly
+excluded. /1/ But he is not speaking of what the rights of a
+disseisor would be as against one not having a better title, and
+he immediately adds that they are rights over a corporeal object
+belonging to a corporeal object.
+
+Although it may be doubted whether the mention of assigns was
+ever necessary to attach an easement to land, and although it is
+very certain that it did not remain so long, the difficulty
+referred to grew greater as time went on. It would have been
+easily disposed of if the only rights which could be annexed to
+land were easements, such as a right of way. It then might have
+been said that these were certain limited interests in land, less
+than ownership in extent, but like it in kind, and therefore
+properly transferred by the same means that ownership was. A
+right of way, it might have been argued, is not to be approached
+from the point of view of contract. It does not presuppose any
+promise on the part of the servient owner. His obligation,
+although more troublesome to him than to others, is the same as
+that of every one else. It is the purely negative duty not to
+obstruct or interfere with a right of property. /2/
+
+[388] But although the test of rights going with the land may
+have been something of that nature, this will not help us to
+understand the cases without a good deal of explanation. For such
+rights might exist to active services which had to be performed
+by the person who held the servient estate. It strikes our ear
+strangely to hear a right to services from an individual called a
+right of property as distinguished from contract. Still this will
+be found to have been the way in which such rights were regarded.
+Bracton argues that it is no wrong to the lord for the tenant to
+alienate land held by free and perfect gift, on the ground that
+the land is bound and charged with the services into whose hands
+soever it may come. The lord is said to have a fee in the homage
+and services; and therefore no entry upon the land which does not
+disturb them injures him. /1/ It is the tenement which imposes
+the obligation of homage, /2/ and the same thing is true of
+villein and other feudal services. /3/
+
+The law remained unchanged when feudal services took the form of
+rent. /4/ Even in our modern terms for years rent is still
+treated as something issuing out of the leased premises, so that
+to this day, although, if you hire a whole house and it burns
+down, you have to pay without abatement, because you have the
+land out of which the rent issues, yet if you only hire a suite
+of rooms and they are burned, you pay rent no longer, because you
+no longer have the tenement out of which it comes. /5/
+
+[389] It is obvious that the foregoing reasoning leads to the
+conclusion that a disseisor of the tenant would be bound as much
+as the tenant himself, and this conclusion was adopted by the
+early law. The lord could require the services, /1/ or collect
+the rent /2/ of any one who had the land, because, as was said in
+language very like Bracton's, "the charge of the rent goes with
+the land." /3/
+
+Then as to the right to the rent. Rent was treated in early law
+as a real right, of which a disseisin was possible, and for which
+a possessory action could be brought. If, as was very frequently
+the case, the leased land lay within a manor, the rent was parcel
+of the manor, /4/ so that there was some ground for saying that
+one who was seised of the manor, that is, who possessed the lands
+occupied by the lord of the manor, and was recognized by the
+tenants as lord, had the rents as incident thereto. Thus Brian,
+Chief Justice of England under Henry VII., says, "If I am
+disseised of a manor, and the tenants pay their rent to the
+disseisor, and then I re-enter, I shall not have the back rent of
+my tenants which they have paid to my disseisor, but the
+disseisor shall pay for all in trespass or assize." /5/ This
+opinion was evidently founded on the notion that the rent was
+attached to the chief land like an easement. Sic fit ut debeantur
+rei a re. /6/
+
+Different principles might have applied when the rent was not
+parcel of a manor, and was only part of the reversion; that is,
+part of the landlord's fee or estate out of [390] which the lease
+was carved. If the lease and rent were merely internal divisions
+of that estate, the rent could not be claimed except by one who
+was privy to that estate. A disseisor would get a new and
+different fee, and would not have the estate of which the rent
+was part. And therefore it would seem that in such a case the
+tenant could refuse to pay him rent, and that payment to him
+would be no defence against the true owner. /1/ Nevertheless, if
+the tenant recognized him, the disseisor would be protected as
+against persons who could not show a better title. /2/
+Furthermore, the rent was so far annexed to the land that whoever
+came by the reversion lawfully could collect it, including the
+superior lord in case of escheat. /3/ Yet escheat meant the
+extinction of the fee of which the lease and rent were parts, and
+although Bracton regarded the lord as coming in under the
+tenant's title pro herede, in privity, it was soon correctly
+settled that he did not, but came in paramount. This instance,
+therefore, comes very near that of a disseisor.
+
+Services and rent, then, were, and to some extent are still,
+dealt with by the law from the point of view of property. They
+were things which could be owned and transferred like other
+property. They could be possessed even by wrong, and possessory
+remedies were given for them.
+
+No such notion was applied to warranties, or to any right which
+was regarded wholly from the point of view of contract. And when
+we turn to the history of those remedies for rent which sounded
+in contract, we find that they were so regarded. The actions of
+debt and covenant [391] could not be maintained without privity.
+In the ninth year of Henry VI. /1/ it was doubted whether an heir
+having the reversion by descent could have debt, and it was held
+that a grantee of the reversion, although he had the rent, could
+not have that remedy for it. A few years later, it was decided
+that the heir could maintain debt, /2/ and in Henry VII.'s reign
+the remedy was extended to the devisee, /3/ who, as has been
+remarked above, seemed more akin to the heir than a grantee, and
+was more easily likened to him. It was then logically necessary
+to give assigns the same action, and this followed. /4/ The
+privity of contract followed the estate, so that the assignee of
+the reversion could sue the person then holding the term. /5/ On
+like grounds he was afterwards allowed to maintain covenant. /6/
+But these actions have never lain for or against persons not
+privy in estate with the lessor and lessee respectively, because
+privity to the contract could never be worked out without
+succession to the title. /7/
+
+However, all these niceties had no application to the old
+freehold rents of the feudal period, because the contractual
+remedies did not apply to them until the time of Queen Anne. /8/
+The freehold rent was just as much real estate as an acre of
+land, and it was sued for by the similar remedy of an assize,
+asking to be put back into possession.
+
+[392] The allowance of contractual remedies shows that rent and
+feudal services of that nature, although dealt with as things
+capable of possession, and looked at generally from the point of
+view of property rather than of contract, yet approach much
+nearer to the nature of the latter than a mere duty not to
+interfere with a way. Other cases come nearer still. The sphere
+of prescription and custom in imposing active duties is large in
+early law. Sometimes the duty is incident to the ownership of
+certain land; sometimes the right is, and sometimes both are, as
+in the case of an easement. When the service was for the benefit
+of other land, the fact that the burden, in popular language,
+fell upon one parcel, was of itself a reason for the benefit
+attaching to the other.
+
+Instances of different kinds are these. A parson might be bound
+by custom to keep a bull and a boar for the use of his parish.
+/1/ A right could be attached to a manor by prescription to have
+a convent sing in the manor chapel. /2/ A right might be gained
+by like means to have certain land fenced by the owner of the
+neighboring lot. /3/ Now, it may readily be conceded that even
+rights like the last two, when attached to land, were looked at
+as property, and were spoken of as the subject of grant. /4/ It
+may be conceded that, in many cases where the statement sounds
+strange to modern ears, the obligation was regarded as failing on
+the land alone, and not on the person of the [393] tenant. And it
+may be conjectured that this view arose naturally and reasonably
+from there having been originally no remedy to compel performance
+of such services, except a distress executed on the servient
+land. /1/ But any conjectured distinction between obligations for
+which the primitive remedy was distress alone, and others, if it
+ever existed, must soon have faded from view; and the line
+between those rights which can be deemed rights of property, and
+those which are mere contracts, is hard to see, after the last
+examples. A covenant to repair is commonly supposed to be a pure
+matter of contract. What is the difference between a duty to
+repair, and a duty to fence? The difficulty remains almost as
+great as ever of finding the dividing line between the competing
+principles of transfer,--succession on the one side, and
+possession of dominant land on the other. If a right in the
+nature of an easement could be attached to land by prescription,
+it could equally be attached by grant. If it went with the land
+in one case, even into the hands of a disseisor, it must have
+gone with it in the other. No satisfactory distinction could be
+based on the mode of acquisition, /2/ nor was any attempted. As
+the right was not confined to assigns, there was no need of
+mentioning assigns. /3/ In modern times, at least, if not in
+early law, such rights can be created by covenant as well [394]
+as by grant. /1/ And, on the other hand, it is ancient law that
+an action of covenant may be maintained upon an instrument of
+grant. /2/ The result of all this was that not only a right
+created by covenant, but the action of covenant itself, might in
+such cases go to assigns, although not mentioned, at a time when
+such mention was essential to give them the benefit of a
+warranty. Logically, these premises led one step farther, and not
+only assigns not named, but disseisors, should have been allowed
+to maintain their action on the contract, as they had the right
+arising out of it. Indeed, if the plaintiff had a right which
+when obtained by grant would have entitled him to covenant, it
+was open to argument that he should be allowed the same action
+when he had the right by prescription, although, as has been seen
+in the case of rent, it did not follow in practice from a man's
+having a right that he had the contractual remedies for it. /3/
+Covenant required a specialty, but prescription was said to be a
+sufficiently good specialty. /4/ Where, then, was the line to be
+drawn between covenants that devolved only to successors, and
+those that went with the land?
+
+The difficulty becomes more striking upon further examination of
+the early law. For side by side with the personal warranty which
+has been discussed hitherto, there was another warranty which has
+not yet been mentioned [395] by which particular land alone was
+bound. /1/ The personal warranty bound only the warrantor and his
+heirs. As was said in a case of the time of Edward I., "no one
+can bind assigns to warranty, since warranty always extends to
+heirs who claim by succession and not by assignment." /2/ But
+when particular land was bound, the warranty went with it, even
+into the hands of the King, because, as Bracton says, the thing
+goes with its burden to every one. /3/ Fleta writes that every
+possessor will be held. /4/ There cannot be a doubt that a
+disseisor would have been bound equally with one whose possession
+was lawful.
+
+We are now ready for a case /5/ decided under Edward III., which
+has been discussed from the time of Fitzherbert and Coke down to
+Lord St. Leonards and Mr. Rawle, which is still law, and is said
+to remain still unexplained. /6/ It shows the judges hesitating
+between the two conceptions to which this Lecture has been
+devoted. If they are understood, I think the explanation will be
+clear.
+
+Pakenham brought covenant as heir of the covenantee against a
+prior, for breach of a covenant made by the defendant's
+predecessor with the plaintiff's great-grandfather, that the
+prior and convent should sing every week in a chapel in his
+manor, for him and his servants. The defendant first pleaded that
+the plaintiff and his servants were not dwelling within the
+manor; but, not daring to [396] rest his case on that, he pleaded
+that the plaintiff was not heir, but that his elder brother was.
+The plaintiff replied that he was tenant of the manor, and that
+his great-grandfather enfeoffed a stranger, who enfeoffed the
+plaintiff and his wife; and that thus the plaintiff was tenant of
+the manor by purchase, and privy to the ancestor; and also that
+the services had been rendered for a time whereof the memory was
+not.
+
+It is evident from these pleadings that assigns were not
+mentioned in the covenant, and so it has always been taken. /1/
+It also appears that the plaintiff was trying to stand on two
+grounds; first, privity, as descendant and assign of the
+covenantee; second, that the service was attached to the manor by
+covenant or by prescription, and that he could maintain covenant
+as tenant of the manor, from whichever source the duty arose.
+
+Finchden, J. puts the case of parceners making partition, and one
+covenanting with the other to acquit of suit. A purchaser has the
+advantage of the covenant. Belknap, for the defendants, agrees,
+but distinguishes. In that case the acquittance falls on the
+land, and not on the person. /2/ (That is to say, such
+obligations follow the analogy of easements, and, as the burden
+falls on the quasi servient estate, the benefit goes with the
+dominant land to assigns, whether mentioned or not, and they are
+not considered from the point of view of contract at all.
+Warranty, on the other hand, is a contract pure and simple, and
+lies in the blood,--falls on the person, not on the land. /3/)
+
+Finchden: a fortiori in this case; for there the action [397] was
+maintained because the plaintiff was tenant of the land from
+which the suit was due, and here he is tenant of the manor where
+the chapel is.
+
+Wichingham, J.: If the king grants warren to another who is
+tenant of the manor, he shall have warren, &c.; but the warren
+will not pass by the grant [of the manor], because the warren is
+not appendant to the manor. No more does it seem the services are
+here appendant to the manor.
+
+Thorpe, C. J., to Belknap: "There are some covenants on which no
+one shall have an action, but the party to the covenant, or his
+heir, and some covenants have inheritance in the land, so that
+whoever has the land by alienation, or in other manner, shall
+have action of covenant; [or, as it is stated in Fitzherbert's
+Abridgment, /1/ the inhabitants of the land as well as every one
+who has the land, shall have the covenant;] and when you say he
+is not heir, he is privy of blood, and may be heir: /2/ and also
+he is tenant of the land, and it is a thing which is annexed to
+the chapel, which is in the manor, and so annexed to the manor,
+and so he has said that the services have been rendered for all
+time whereof there is memory, whence it is right this action
+should be maintained." Belknap denied that the plaintiff counted
+on such a prescription; but Thorpe said he did, and we bear
+record of it, and the case was adjourned. /3/
+
+It will be seen that the discussion followed the lines marked out
+by the pleading. One judge thought that [398] the plaintiff was
+entitled to recover as tenant of the manor. The other puisne
+doubted, but agreed that the case must be discussed on the
+analogy of easements. The Chief Justice, after suggesting the
+possibility of sufficient privity on the ground that the
+plaintiff was privy in blood and might be heir, turns to the
+other argument as more promising, and evidently founds his
+opinion upon it. /1/ It would almost seem that he considered a
+prescriptive right enough to support the action, and it is pretty
+clear that he thought that a disseisor would have had the same
+rights as the plaintiff.
+
+In the reign of Henry IV., another case /2/ arose upon a covenant
+very like the last. But this time the facts were reversed. The
+plaintiff counted as heir, but did not allege that he was tenant
+of the manor. The defendant, not denying the plaintiff's descent,
+pleaded in substance that he was not tenant of the manor in his
+own right. The question raised by the pleadings, therefore, was
+whether the heir of the covenantee could sue without being tenant
+of the manor. If the covenant was to be approached from the side
+of contract, the heir was party to it as representing the
+covenantee. If, on the other hand, it was treated as amounting to
+the grant of a service like an easement, it would naturally go
+with the manor if made to the lord of the manor. It seems to have
+been thought that such a covenant might go either way, according
+as it was made to the tenant of the manor or to a stranger.
+Markham, one of the judges, says: "In a writ of covenant one must
+be privy to the covenant if he would have a writ of covenant or
+aid by the covenant. But, peradventure, if the covenant [399] had
+been made with the lord of the manor, who had inheritance in the
+manor, ou issint come determination poit estre fait, it would be
+otherwise," which was admitted. /1/ It was assumed that the
+covenant was not so made as to attach to the manor, and the
+court, observing that the service was rather spiritual than
+temporal, were inclined to think that the heir could sue. /2/ The
+defendant accordingly over and set up a release. It will be seen
+how fully this agrees with the former case.
+
+The distinction taken by Markham is stated very clearly in a
+reported by Lord Coke. In the argument of Chudleigh's Case the
+line is drawn thus: "Always, the warranty as to voucher requires
+privity of estate to which it was annexed," (i.e. succession to
+the original covenantee,) "and the same law of a use.... But of
+things annexed to land, it is otherwise, as of commons,
+advowsons, and the like appendants or appurtenances.... So a
+disseisor, abator, intruder, or the lord by escheat, &c., shall
+have them as things annexed to the land. So note a diversity
+between a use or warranty, and the like things annexed to the
+estate of the land in privity, and commons, advowsons, and other
+hereditaments annexed to the possession of the land." /3/ And
+this, it seems to me, is the nearest approach which has ever been
+made to the truth.
+
+Coke, in his Commentary on Littleton (385 a), takes a distinction
+between a warranty, which binds the party to yield lands in
+recompense, and a covenant annexed to the land, which is to yield
+but damages. If Lord Coke had [400] meant to distinguish between
+warranties and all covenants which in our loose modern sense are
+said to run with the land, this statement would be less
+satisfactory than the preceding.
+
+A warranty was a covenant which sometimes yielded but damages,
+and a covenant in the old law sometimes yielded land. In looking
+at the early cases we are reminded of the still earlier German
+procedure, in which it did not matter whether the plaintiff's
+claim was founded on a right of property in a thing, or simply on
+a contract for it. /1/ Covenant was brought for a freehold under
+Edward I., /2/ and under Edward III. it seems that a mill could
+be abated by the same action, when maintained contrary to an
+easement created by covenant. /3/ But Lord Coke did not mean to
+lay down any sweeping doctrine, for his conclusion is, that "a
+covenant is in many cases extended further than the warrantie."
+Furthermore, this statement, as Lord Coke meant it, is perfectly
+consistent with the other and more important distinction between
+warranties and rights in the nature of easements or covenants
+creating such rights. For Lord Coke's examples are confined to
+covenants of the latter sort, being in fact only the cases just
+stated from the Year Books.
+
+Later writers, however, have wholly forgotten the distinction in
+question, and accordingly it has failed to settle the disputed
+line between conflicting principles. Covenants which started from
+the analogy of warranties, and others to which was applied the
+language and reasoning of easements, have been confounded
+together under the title of [401] covenants running with the
+land. The phrase "running with the land" is only appropriate to
+covenants which pass like easements. But we can easily see how it
+came to be used more loosely.
+
+It has already been shown that covenants for title, like
+warranties, went only to successors of the original covenantee.
+The technical expression for the rule was that they were annexed
+to the estate in privity. Nothing was easier than to overlook the
+technical use of the word "estate," and to say that such
+covenants went with the land. This was done, and forthwith all
+distinctions became doubtful. It probably had been necessary to
+mention assigns in covenants for title, as it certainly had been
+to give them the benefit of the ancient warranty; /1/ for this
+seems to have been the formal mark of those covenants which
+passed only to privies. But it was not necessary to mention
+assigns in order to attach easements and the like to land. Why
+should it be necessary for one covenant running with the land
+more than another? and if necessary for one, why not for all? /2/
+The necessity of such mention in modern times has been supposed
+to be governed by a fanciful rule of Lord Coke's. /3/ On the
+other hand, the question is raised whether covenants which should
+pass irrespective of privity are not governed by the same rule
+which governs warranties.
+
+These questions have not lost their importance. Covenants for
+title are in every deed, and other covenants are [402] only less
+common, which, it remains to show, belong to the other class.
+
+Chief among these is the covenant to repair. It has already been
+observed that an easement of fencing may be annexed to land, and
+it was then asked what was the difference in kind between a right
+to have another person build such structures, and a right to have
+him repair structures already built. Evidence is not wanting to
+show that the likeness was perceived. Only, as such covenants are
+rarely, if ever, made, except in leases, there is always privity
+to the original parties. For the lease could not, and the
+reversion would not be likely to, go by disseisin.
+
+The Dean of Windsor's Case decides that such a covenant binds an
+assignee of the term, although not named. It is reported in two
+books of the highest authority, one of the reporters being Lord
+Coke, the other Croke, who was also a judge. Croke gives the
+reason thus: "For a covenant which runs and rests with the land
+lies for or against the assignee at the common law, quia transit
+terra cum onere, although the assignees be not named in the
+covenant." /1/ This is the reason which governed easements, and
+the very phrase which was used to account for all possessors
+being bound by a covenant binding a parcel of land to warranty.
+Coke says, "For such covenant which extends to the support of the
+thing demised is quodammodo appurtenant to it, and goes with it."
+Again the language of easements. And to make this plainer, if
+need be, it is added, "If a man grants to one estovers to repair
+his house, it is appurtenant to his house." Estovers for [403]
+repair went with the land, like other rights of common, /1/
+which, as Lord Coke has told us, passed even to disseisors.
+
+In the next reign the converse proposition was decided, that an
+assignee of the reversion was entitled in like manner to the
+benefit of the covenant, because "it is a covenant which runs
+with the land." /2/ The same law was applied, with still clearer
+reason, to a covenant to leave fifteen acres unploughed for
+pasture, which was held to bind an assignee not named, /3/ and,
+it would seem, to a covenant to keep land properly manured. /4/
+
+If the analogy which led to this class of decisions were followed
+out, a disseisor could sue or be sued upon such covenants, if the
+other facts were of such a kind as to raise the question. There
+is nothing but the novelty of the proposition which need prevent
+its being accepted. It has been mentioned above, that words of
+covenant may annex an easement to land, and that words of grant
+may import a covenant. It would be rather narrow to give a
+disseisor one remedy, and deny him another, where the right was
+one, and the same words made both the grant and the covenant. /5/
+
+The language commonly used, however, throws doubt and darkness
+over this and every other question connected with the subject. It
+is a consequence, already referred to, of confounding covenants
+for title, and the class last discussed, [404] under the name of
+covenants running with the land. According to the general opinion
+there must be a privity of estate between the covenantor and
+covenantee in the latter class of cases in order to bind the
+assigns of the covenantor. Some have supposed this privity to be
+tenure; some, an interest of the covenantee in the land of the
+covenantor; and so on. /1/ The first notion is false, the second
+misleading, and the proposition to which they are applied is
+unfounded. Privity of estate, as used in connection with
+covenants at common law, does not mean tenure or easement; it
+means succession to a title. /2/ It is never necessary between
+covenantor and covenantee, or any other persons, except between
+the present owner and the original covenantee. And on principle
+it is only necessary between them in those cases--such as
+warranties, and probably covenants for title--where, the
+covenants being regarded wholly from the side of contract, the
+benefit goes by way of succession, and not with the land.
+
+If now it should be again asked, at the end of this long
+discussion, where the line is to be drawn between these two
+classes of covenants, the answer is necessarily vague in view of
+the authorities. The following propositions may be of some
+service.
+
+*A. With regard to covenants which go with the land:--
+
+*(1.) Where either by tradition or good sense the burden of the
+obligation would be said, elliptically, to fall on the land of
+the covenantor, the creation of such a burden is in theory a
+grant or transfer of a partial interest in [405] that land to the
+covenantee. As the right of property so created can be asserted
+against every possessor of the land, it would not be extravagant
+or absurd to allow it to be asserted by the action of covenant.
+
+*(2.) Where such a right is granted to the owner of a neighboring
+piece of land for the benefit of that land, the right will be
+attached to the land, and go with it into all hands. The action
+of covenant would be allowed to assigns not named, and it would
+not be absurd to give it to disseisors.
+
+*(3.) There is one case of a service, the burden of which does
+not fall upon land even in theory, but the benefit of which might
+go at common law with land which it benefited. This is the case
+of singing and the like by a convent. It will be observed that
+the service, although not falling on land, is to be performed by
+a corporation permanently seated in the neighborhood. Similar
+cases are not likely to arise now.
+
+*B. With regard to covenants which go only with the estate in the
+land:--
+
+In general the benefit of covenants which cannot be likened to
+grants, and the burden of which does not fall on land, is
+confined to the covenantee and those who sustain his persona,
+namely, his executor or heir. In certain cases, of which the
+original and type was the ancient warranty, and of which the
+modern covenants for title are present examples, the sphere of
+succession was enlarged by the mention of assigns, and assigns
+are still allowed to represent the original covenantee for the
+purposes of that contract. But it is only by way of succession
+that any other person than the party to the contract can sue upon
+it. Hence the plaintiff must always be privy in estate with the
+covenantee.
+
+[406] C. It is impossible, however, to tell by general reasoning
+what rights will be held in English law to belong to the former
+class, or where the line will be drawn between the two. The
+authorities must be consulted as an arbitrary fact. Although it
+might sometimes seem that the test of the first was whether the
+service was of a nature capable of grant, so that if it rested
+purely in covenant it would not follow the land, /1/ yet if this
+test were accepted, it has already been shown that, apart from
+tradition, some services which do follow the land could only be
+matter of covenant. The grant of light and air, a well-
+established easement, is called a covenant not to build on the
+servient land to the injury of the light, by Baron Parke. /2/ And
+although this might be doubted, /3/ it has been seen that at
+least one well-established easement, that of fencing, cannot be
+considered as a right granted out of the servient land with any
+more propriety than a hundred other services which would be only
+matter of contract if the law allowed them to be annexed to land
+in like manner. The duty to repair exists only by way of
+covenant, yet the reasoning of the leading cases is drawn from
+the law of easement. On the other hand, a covenant by a lessee to
+build a wall upon the leased premises was held, in Spencer's
+Case, not to bind assigns unless mentioned; /4/ but Lord Coke
+says that it would have bound them if it had purported to. The
+analogy of warranty makes its appearance, and throws a doubt on
+the fundamental principle of the case. We can only say that the
+application [407] of the law is limited by custom, and by the
+rule that new and unusual burdens cannot be imposed on land.
+
+The general object of this Lecture is to discover the theory on
+which a man is allowed to enjoy a special right when the facts
+out of which the right arises are not true of him. The transfer
+of easements presented itself as one case to be explained, and
+that has now been analyzed, and its influence on the law has been
+traced. But the principle of such transfers is clearly anomalous,
+and does not affect the general doctrine of the law. The general
+doctrine is that which has been seen exemplified in prescription,
+warranty, and such covenants as followed the analogy mentioned
+Another illustration which has not yet been is to be found in the
+law of uses.
+
+In old times a use was a chose in action,--that is, was
+considered very nearly from the point of view of contract, and it
+had a similar history to that which has been traced in other
+cases. At first it was doubted whether proof of such a secret
+trust ought to be allowed, even as against the heir. /1/ It was
+allowed, however, in the end, /2/ and then the principle of
+succession was extended to the assign. But it never went further.
+Only those who were privies in estate with the original feoffee
+to uses, were bound by the use. A disseisor was no more bound by
+the confidence reposed in his disseisee, than he was entitled to
+vouch his disseisee's warrantor. In the time of Henry VIII. it
+was said that "where a use shall be, it is requisite that there
+be two things, sc. confidence, and privity:... as I say, if
+there be not privity or confidence, [408] then there can be no
+use: and hence if the feoffees make a feoffment to one who has
+notice of the use, now the law will adjudge him seised to the
+first use, since there is sufficient privity between the first
+feoffor and him, for if he [i.e. the first feoflor] had warranted
+he [the last feoffee] should vouch as assign, which proves
+privity; and he is in in the per by the feoffees; but where one
+comes into the land in the post, as the lord by escheat or the
+disseisor, then the use is altered and changed, because privity
+is wanting." /1/
+
+To this day it is said that a trust is annexed in privity to the
+person and to the estate /2/ (which means to the persona). It is
+not regarded as issuing out of the land like a rent, so that
+while a rent binds every one who has the land, no matter how, a
+disseisor is not bound by the trust. /3/ The case of the lord
+taking by escheat has been doubted, /4/ and it will be remembered
+that there is a difference between Bracton and later authors as
+to whether he comes in as quasi heres or as a stranger.
+
+Then as to the benefit of the use. We are told that the right to
+sue the subpoena descended indeed to the heir, on the ground of
+heres eadem persona cum antecessore, but that it was not assets.
+/5/ The cestui que use was given power to sell by an early
+statute. /6/ But with regard to trusts, Lord Coke tells us that
+in the reign of Queen Elizabeth [409] all the judges in England
+held that a trust could not be assigned, "because it was a matter
+in privity between them, and was in the nature of a chose in
+action." /1/ Uses and trusts were both devisable, however, from
+an early day, /2/ and now trusts are as alienable as any form of
+property.
+
+The history of early law everywhere shows that the difficulty of
+transferring a mere right was greatly felt when the situation of
+fact from which it sprung could not also be transferred. Analysis
+shows that the difficulty is real. The fiction which made such a
+transfer conceivable has now been explained, and its history has
+been followed until it has been seen to become a general mode of
+thought. It is now a matter of course that the buyer stands in
+the shoes of the seller, or, in the language of an old law-book,
+/3/ that "the assign is in a manner quasi successor to his
+assignor." Whatever peculiarities of our law rest on that
+assumption may now be understood.
+
+
+
+
+
+FOOTNOTES
+
+3/1 E.g. Ine, c. 74; Alfred, c. 42; Ethelred, IV. 4, Section 1.
+
+3/2 Bract., fol. 144, 145; Fleta, I. c. 40, 41; Co. Lit. 126b;
+Hawkins, P.C., Bk. 2, ch. 23, Section 15.
+
+3/3 Lib. I. c. 2, ad fin.
+
+3 /4 Bract., fol. 144a, "assulto praemeditato."
+
+4/1 Fol. 155; cf. 103b.
+
+4/2 Y.B. 6 Ed. IV. 7, pl. 18.
+
+4/3 Ibid., and 21 H. VII. 27, pl. 5.
+
+4/4 D. 47. 9. 9.
+
+7/1 xxi. 28.
+
+7/2 [theta], ix. Jowett's Tr., Bk. IX. p. 437; Bohn's Tr., pp.
+378, 379.
+
+7/3 [theta], xv., Jowett, 449; Bohn, 397.
+
+8/1 [iota alpha], xiv., Jowett, 509; Bohn, 495.
+
+8/2 [theta], xii., Jowett, 443, 444; Bohn, 388.
+
+8/3 [Greek words]. 244, 245.
+
+8/4 l. 28 (11).
+
+8/5 Solon.
+
+8/6 "Si quadrupes pauperiem fecisse dicetur actio ex lege
+duodecim tabularum descendit; quae lex voluit, aut dari [id] quod
+nocuit, id ist, id animal, quod noxiam commisit; aut estimationem
+noxiae offerre." D. 9. 1. 1, pr.; Just. Inst. 4. 9; XII Tab.,
+VIII. 6.
+
+8/7 Gaii Inst. IV. Sections 75, 76; D. 9. 4. 2, Section 1. "Si
+servus furtum faxit noxiam ve noxit." XII Tab., XII.2. Cf.
+Just. Inst. 4.8, Section 7.
+
+9/1 D. 39. 2. 7, Sections 1, 2; Gaii Inst. IV. Section 75.
+
+9/2 "Noxa caput sequitur." D. 9. 1. 1, Section 12; Inst. 4.8,
+Section 5.
+
+9/3 "Quia desinit dominus esse ubi fera evasit." D. 9. 1. 1,
+Section 10; Inst. 4. 9, pr. Compare May v. Burdett, 9 Q.B.101, 113.
+
+10/1 D. 19. 5. 14, Section 3; Plin. Nat. Hist., XVIII. 3.
+
+10/2 "In lege antiqua si servus sciente domino furtum fecit,
+vel aliam noxiam commisit, servi nomine actio est noxalis,
+nec dominus suo nomine tenetur." D. 9. 4. 2.
+
+10/3 Gaius, Inst. IV. Section 77, says that a noxal action may change
+to a direct, and conversely, a direct action to a noxal. If a
+paterfamilias commits a tort, and then is adopted or becomes a
+slave, a noxal action now lies against his master in place of the
+direct one against himself as the wrong-doer. Just. Inst. 4. 8,
+Section
+5.
+
+11/1 LL. Alfred, c. 13; 1 Tylor, Primitive Culture, Am. ed., p.
+285 et seq.; Bain, Mental and Moral Science, Bk. III. ch. 8, p.
+261.
+
+11/2 Florus, Epitome, II. 18. Cf. Livy, IX 1, 8, VIII. 39;
+Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99.
+
+12/1 Gaii Inst. IV. Section 81. I give the reading of Huschke: "Licere
+enim etiam, si fato is fuerit mortuus, mortuum dare; nam quamquam
+diximus, non etiam permissum reis esse, et mortuos homines
+dedere, tamen et si quis eum dederit, qui fato suo vita
+excesserit, aeque liberatur." Ulpian's statement, in D. 9. 1. 1,
+Section 13, that the action is gone if the animal dies ante litem
+contestatam, is directed only to the point that liability is
+founded on possession of the thing.
+
+12/2 "Bello contra foedus suscepto."
+
+12/3 Livy, VIII. 39: "Vir...haud dubie proximarum induciarum
+ruptor. De eo coacti referre praetores decretum fecerunt 'Ut
+Brutulus Papius Romanis dederetur."...Fetiales Romam, ut
+censuerunt, missi, et corpus Brutuli exanime: ipse morte
+voluntaria ignominiae se ac supplicio subtraxit. Placuit cum
+corpore bona quoque ejus dedi." Cf. Zonaras, VII. 26, ed.
+Niebuhr, vol. 43, p. 97: [Greek characters]. See further Livy, V.
+36, "postulatumque ut pro jure gentium violato Fabii dederentur,"
+and Ib. I. 32.
+
+13/1 Livy, IX. 5, 8, 9, 10. "Nam quod deditione nostra negant
+exsolvi religione populum, id istos magis ne dedantur, quam quia
+ita se res habeat, dicere, quis adeo juris fetialium expers est,
+qui ignoret?" The formula of surrender was as follows: "Quandoque
+hisce homines injussu populi Romani Quiritium foedus ictum iri
+spoponderunt, atque ob eam rem noxam nocuerunt; ob eam rem, quo
+populus Romanus scelere impio sit solutus, hosce homines vobis
+dedo." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99.
+
+13/2 De Orator. I. 40, and elsewhere. It is to be noticed that
+Florus, in his account, says deditione Mancini expiavit. Epitome,
+II. 18. It has already been observed that the cases mentioned by
+Livy seem to suggest that the object of the surrender was
+expiation, as much as they do that it was satisfaction of a
+contract. Zonaras says, Postumius and Calvinus [Greek
+characters]. (VII. 26, ed. Niebuhr, Vol. 43, pp. 98, 99.) Cf. ib.
+p. 97. Compare Serv. ad Virg. Eclog. IV. 43: "In legibus Numae
+cautum est, ut si quis imprudens occidisset hominem pro capite
+occisi et natis [agnatis? Huschke] ejus in concione offerret
+arietem." Id. Geor. III. 387, and Festus, Subici, Subigere. But
+cf. Wordsworth's Fragments and Specimens of Early Latin, note to
+XII Tab., XII. 2, p. 538.
+
+14/1 D. 9. 4. 2
+
+14/2 2 Tissot, Droit Penal, 615; 1 Ihering, Geist d. Roem. R.,
+Section
+14; 4 id. Section 63.
+
+14/3 Aul. Gell. Noctes Attici, 20. 1; Quintil. Inst. Orat. 3. 6.
+84; Tertull. Apol., c. 4.
+
+14/4 Cf. Varro, De Lingua Latina, VI.: "Liber, qui suas operas in
+servitute pro pecunia, quam debeat, dum solveret Nexus vocatur."
+
+15/1 D. 9. 1. 1, Section 9 But cf. 1 Hale, P.C. 420.
+
+15/2 D. 9. 4. 2, Section 1.
+
+15/3 D. 9. 1. 1, Sections 4, 5.
+
+16/1 D. 4. 9. 1, Section 1; ib. 7, Section 4.
+
+16/2 Gaius in D. 44. 7. 5, Section 6; Just. Inst. 4. 5, Section
+3.
+
+16/3 D. 4. 9. 7, pr.
+
+17/1 See Austin, Jurisp. (3d ed.) 513; Doctor and Student, Dial.
+2, ch. 42.
+
+17/2 Cf. L. Burgund. XVIII.; L. Rip. XLVI. (al. 48).
+
+17/3 See the word Lege, Merkel, Lex Salica, p. 103. Cf. Wilda,
+Strafrecht der Germanen, 660, n. 1. See further Lex Salica, XL.;
+Pactus pro tenore pacis Child. et Chloth., c. 5; Decretio
+Chlotharii, c. 5; Edictus Hilperichi, cc. 5, 7; and the
+observations of Sohm in his treatise on the Procedure of the
+Salic Law, Sections 20, 22, 27, French Tr. (Thevenin), pp. 83 n.,
+93, 94, 101-103, 130.
+
+17/4 Wilda, Strafrecht, 590.
+
+18/1 Cf. Wilda, Strafrecht, 660, n. 1; Merkel, Lex Salica, Gloss.
+Lege, p. 103. Lex Saxon. XI. Section 3: "Si servus perpetrato facinore
+fugerit, ita ut adomino ulterius inveniri non possit, nihil solvat."
+Cf. id. II. Section 5. Capp. Rip. c. 5: "Nemini liceat servum
+suum, propter damnum ab illo cuibet inlatum, dimittere; sed justa
+qualitatem damni dominus pro illo respondeat vel eum in
+compositione aut ad poenam petitori offeret. Si autem servus
+perpetrato scelere fugerit, ita ut a domino paenitus inveniri non
+possit, sacramento se dominus ejus excusare studeat, quod nec
+suae voluntatis nec conscientia fuisset, quod servus ejus tale
+facinus commisit."
+
+18/2 L. Saxon. XI. Section 1.
+
+18/3 Lex Angl. et Wer. XVI.: "Omne damnum quod servus fecerit
+dominus emendet."
+
+19/1 C. 3; 1 Thorpe, Anc. Laws, pp. 27, 29.
+
+19/2 C. 74; 1 Thorpe, p. 149; cf. p. 118, n. a. See LL. Hen. I.,
+LXX. Section 5.
+
+19/3 C. 24; 1 Thorpe, p. 79. Cf. Ine, c. 42; 1 Thorpe, p. 129.
+
+19/4 C. 13; 1 Thorpe, p. 71.
+
+19/5 1 Tylor, Primitive Culture, Am. ed., p. 286.
+
+20/1 Cf. Record in Molloy, Book 2, ch. 3, Section 16, 24 Ed. III.:
+"Visum fuit curiae, quod unusquisque magister navis tenetur
+respondere de quacunque transgressione per servientes suos in
+navi sua facta." The Laws of Oleron were relied on in this case.
+Cf. Stat. of the Staple, Ed. III., Stat. 2, c. 19. Later, the
+influence of the Roman law is clear.
+
+20/2 Quon. Attach., c. 48, pl. 10 et seq. Cf. The Forme and Maner
+of Baron Courts, c. 62 et seq.
+
+21/1 Forme and Maner of Baron Courts, c. 63.
+
+21/2 C. 64. This substantially follows the Quoniam Attachiamenta,
+c. 48, pl. 13, but is a little clearer. Contra, Fitzh. Abr.
+Corone, Pl. 389, 8 Ed. II.
+
+22/1 Fitzh. Abr. Barre, pl. 290.
+
+22/2 Mitchil v. Alestree, 1 Vent. 295; S.C. 2 Lev. 172; S.C. 3
+Keb. 650. Cf. May b. Burdett, 9 Q.B.101, 113.
+
+22/3 May v. Burdett, 9 Q.B.101.
+
+22/4 Mason v. Keeling, 12 Mod. 332, 335; S.C. 1 Ld. Raym. 606,
+608.
+
+23/1 Williams, J. in Cox v. Burbidge, 13 C.B. N.S. 430, 438. Cf.
+Willes, J. in Read v. Edwards, 17 C.B. N.S. 245, 261.
+
+23/2 Mason v. Keeling, 1 Ld. Raym. 606, 608.
+
+23/3 In the laws of Ine, c. 42 (1 Thorpe, Anc. Laws, 129),
+personal liability seems to be imposed where there is a failure
+to fence. But if an animal breaks hedges the only remedy
+mentioned is to kill it, the owner to have the skin and flesh,
+and forfeit the rest. The defendant was held "because it was
+found that this was for default of guarding them,...for default
+of good guard," in 27 Ass., pl. 56, fol. 141, A.D. 1353 or 1354.
+It is much later that the reason is stated in the absolute form,
+"because I am bound by law to keep my beasts without doing wrong
+to any one." Mich. 12 Henry VII., Keilway, 3b, pl. 7. See,
+further, the distinctions as to a horse killing a man in Regiam
+Majestatem, IV, c. 24.
+
+24/1 Fol. 128.
+
+24/2 Cf. 1 Britton (Nich.), 6a, b, 16 (top paging 15, 39);
+Bract., fol. 136b; LL. Alfred, c. 13 (1 Thorpe, Anc. Laws, p.
+71); Lex Saxon., Tit. XIII.; Leg Alamann., Tit. CIII. 24.
+
+25/1 Fleta, I. 26, Section 10; Fitzh. Abr. Corone, pl. 416. See
+generally Staundforde, P.C., I. c. 2, fol. 20 et seq.; 1 Hale,
+P.C. 410 et seq.
+
+25/2 Doctor and Student, Dial. 2, c. 51.
+
+25/3 Plowd. 260.
+
+25/4 Jacob, Law Dict. Deodand.
+
+25/5 Y.B. 30 & 31 Ed. I., pp. 524, 525; cf. Bract., fol. 136b.
+
+26/1 Fitzh. Abr. Corone, pl. 403.
+
+26/2 Bract. 122; 1 Britton (Nich.), top p. 16; Fleta, Ic. 25,
+Section 9, fol. 37.
+
+26/3 1 Hale, P.C. 423.
+
+26/4 1 Rot. Parl. 372; 2 Rot. Parl. 345, 372a, b; 3 Rot. Parl.
+94a, 120a, 121; 4 Rot. Parl. 12a, b, 492b, 493. But see 1 Hale,
+P.C. 423.
+
+26/5 1 Black Book of the Admiralty, 242.
+
+27/1 Cf. Ticonderoga, Swabey, 215, 217.
+
+27/2 China, 7 Wall. 53.
+
+28/1 Doctor and Student, Dial. 2, c. 51.
+
+28/2 1 Roll. Abr. 530 (C) 1.
+
+29/1 3 Black Book of Adm. 103.
+
+29/2 Malek Adhel, 2 How. 210, 234.
+
+30/1 3 Kent, 218; Customs of the Sea, cap. 27, 141, 182, in 3
+Black Book of the Admiralty, 103, 243, 245.
+
+31/1 3 Kent's Comm. 188.
+
+31/2 Clay v. Snelgrave, 1 Ld. Raym. 576, 577; S.C. 1 Salk. 33.
+Cf. Molloy, p. 355, Book II. ch. 3, Section 8.
+
+31/3 "Ans perdront lurs loers quant la nef est perdue." 2 Black
+Book, 213. This is from the Judgments of the Sea, which,
+according to the editor (II., pp. xliv., xlvii.), is the most
+ancient extant source of modern maritime law except the decisions
+of Trani. So Molloy, Book II. ch. 3, Section 7, p. 354: "If the
+ship perishes at sea they lose their wages." So 1 Siderfin,
+236, pl. 2.
+
+32/1 3 Black Book, pp. lix., lxxiv.
+
+32/2 3 Black Book, 263. It should be added, however, that it is
+laid down in the same book that, if the vessel is detained in
+port by the local authorities, the master is not bound to give
+the mariners wages, "for he has earned no freight."
+
+32/3 Lipson v. Harrison, 2 Weekly Rep. 10. Cf. Louisa Jane, 2
+Lowell, 295.
+
+32/4 3 Kent's Comm. (12th ed.), 218; ib. 138, n. 1.
+
+32/5 3 Kent, 218.
+
+32/6 Justin v. Ballam, 1 Salk. 34; S.C. 2 Ld. Raym. 805.
+
+33/1 D. 20. 4. 5 & 6; cf. Livy, XXX. 38.
+
+33/2 Pardessus, Droit. Comm., n. 961.
+
+33/3 3 Keb. 112, 114, citing 1 Roll. Abr. 530.
+
+34/1 Godbolt, 260.
+
+34/2 3 Colquhoun, Roman Civil Law, Section 2196.
+
+35/1 Lex Salica (Merkel), LXXVII.; Ed. Hilperich., Section 5.
+
+36/1 See Lecture III., ad fin.
+
+39/1 Cf. 2 Hawk. P.C. 303 et seq.; 27 Ass. 25.
+
+40/1 2 Palgrave, Commonwealth, cxxx., cxxxi.
+
+41/1 Butler, Sermons, VIII. Bentham, Theory of Legislation
+(Principles of Penal Code, Part 2, ch. 16), Hildreth's tr., p.
+309.
+
+41/2 General View of the Criminal Law of England, p. 99.
+
+43/1 Wharton, Crim. Law, (8th ed.) Section 8, n. 1.
+
+43/2 Ibid., Section 7.
+
+43/3 Even the law recognizes that this is a sacrifice.
+Commonwealth v. Sawin, 2 Pick. (Mass.) 547, 549.
+
+47/1 Cf. 1 East, P.C. 294; United States v. Holmes, 1 Wall. Jr.
+1; 1 Bishop, Crim. Law, Sections 347-349, 845 (6th ed.); 4 Bl.
+Comm.
+31.
+
+51/1 Art. 223.
+
+51/2 General View of the Criminal Law of England, p. 116.
+
+53/1 Harris, Criminal Law, p. 13.
+
+53/2 Steph. Dig. Crim. Law, Art. 223, Illustration (6), and n. 1.
+
+56/1 4 Bl. Comm. 192.
+
+57/1 Cf. 4 Bl. Comm. 197.
+
+58/1 Reg. v. Hibbert, L.R. 1 C.C. 184.
+
+59/1 Reg. v. Prince, L.R. 2 C.C. 154.
+
+59/2 Commonwealth v. Hallett, 103 Mass. 452.
+
+60/1 Stephen, Dig. Cr. Law, Art. 223, Illustr. (5); Foster, 294,
+295.
+
+60/2 Cf. Gray's case, cited 2 Strange, 774.
+
+60/3 Steph. Dig., Art. 223, Illustr. (1).
+
+60/4 Steph. Dig., Art. 223, Illustr. (8).
+
+60/5 Rex v. Mastin, 6 C.&P. 396. Cf. Reg. v. Swindall, 2 C. & K.
+230.
+
+60/6 4 Bl. Comm. 192.
+
+62/1 Steph. Dig. Cr. Law, Art. 225.
+
+62/2 Rex v. Shaw, 6 C.&P. 372.
+
+62/3 Rex v. Oneby, 2 Strange, 766, 773.
+
+62/4 Rex v. Hayward, 6 C.&P. 157.
+
+63/1 Commonwealth v. Walden, 3 Cush. (Mass.) 558. Cf. Steph. Gen.
+View of the Crim. Law, 84.
+
+64/1 2 Bishop Crim. Law, Section 14 (6th ed.).
+
+64/2 Glanv., Lib. XIV. c. 4.
+
+64/3 Bract., fol. 146b.
+
+64/4 Ibid.
+
+64/5 2 East, P.C., c. 21, Sections 7, 8, pp. 1027, 1031.
+
+66/1 1 Bishop, Crim. Law, Section 735 (6th ed.).
+
+66/2 Reg. v. Dilworth, 2 Moo. & Rob. 531; Reg. v. Jones, 9 C.&P.
+258. The statement that a man is presumed to intend the natural
+consequences of his acts is a mere fiction disguising the true
+theory. See Lecture IV.
+
+67/1 Reg. v. Taylor, 1 F. & F. 511.
+
+67/2 Reg. v. Roberts, 25 L. J. M. C. 17; S.C. Dearsly, C., C.
+539.
+
+68/1 Lewis v. The State, 35 Ala. 380.
+
+69/1 See M'Pherson's Case, Dearsly & Bell, 197, 201, Bramwell, B.
+
+69/2 Cf. 1 Bishop, Crim. Law, Sections 741-745 (6th ed.).
+
+71/1 2 Bishop, Crim. Law, Section 758 (6th ed.).
+
+73/1 Cf. Stephen, General View of Criminal Law of England, 49 et
+seq.
+
+73/2 Cf. Stephen, General View, 49-52; 2 East, P.C. 553.
+
+74/1 Rex v. Cabbage, Russ. & Ry. 292.
+
+74/2 Cf. 4 Bl. Comm. 224; Steph. Dig. Crim. Law, Arts. 316, 319.
+
+74/3 Cf. 4 Bl. Comm. 227, 228.
+
+75/1 1 Starkie, Cr. Pl. 177. This doctrine goes further than my
+argument requires. For if burglary were dealt with only on the
+footing of an attempt, the whole crime would have to be complete
+at the moment of breaking into the house. Cf. Rex v. Furnival,
+Russ. & Ry. 445.
+
+81/1 See Lecture VII.
+
+82/1 Austin, Jurisprudence (3d ed.), 440 et seq., 474, 484, Lect.
+XX., XXIV., XXV.
+
+84/1 Lib. I. c. 2, ad fin.
+
+85/1 Hist. English Law, I. 113 (bis), n.a; Id., ed. Finlason, I.
+178, n. 1. Fitzherbert (N.B. 85, F.) says that in the vicontiel
+writ of trespass, which is not returnable into the king's court,
+it shall not be said quare vi et armis. Cf. Ib. 86, H.
+
+85/2 Milman v. Dolwell, 2 Camp. 378; Knapp v. Salsbury, 2 Camp.
+500; Peafey v. Walter, 6 C.&P. 232; Hall v. Fearnley, 3 Q.B. 919.
+
+85/3 Y.B. 6 Ed. IV. 7, pl. 18, A.D. 1466; cf. Ames, Cases in
+Tort, 69, for a translation, which has been followed for the most
+part.
+
+87/1 Y.B. 21 Hen. VII. 27, pl. 5, A.D. 1506.
+
+87/2 Cf. Bract., fol. 136 b. But cf. Stat. of Gloucester, 6 Ed.
+I. c. 9; Y.B. 2 Hen. IV. 18, pl. 8, by Thirning; Essays in Ang.
+Sax. Law, 276.
+
+87/3 Hobart, 134, A.D. 1616.
+
+87/4 Sir T. Jones, 205, A.D. 1682.
+
+87/5 1 Strange, 596, A.D. 1723.
+
+87/6 2 Keyes, 169, A.D. 1865.
+
+88/1 Anonymous, Cro. Eliz. 10, A.D. 1582.
+
+88/2 Sir T. Raym. 467, A.D. 1682.
+
+88/3 Scott v. Shepherd, 2 Wm. B1. 892, A.D. 1773.
+
+88/4 3 East, 593. See, further, Coleridge's note to 3 Bl. Comm.
+123; Saunders, Negligence, ch. 1, Section I; argument in Fletcher
+v. Rylands, 3 H.&C. 774, 783; Lord Cranworth, in S.C., L.R. 3 H. L.
+330, 341.
+
+90/1 Ex. gr. Metropolitan Railway Co. v. Jackson, 3 App. Cas.
+193. See M'Manus v. Crickett, 1 East, 106, 108.
+
+91/1 1 Ld. Raym. 38; S.C. Salk. 637; 4 Mod. 404; A.D. 1695.
+
+92/1 2 Wm. Bl. 892. Cf. Clark v. Chambers, 3 Q.B.D. 327, 330,
+338.
+
+92/2 7 Vt, 62.
+
+93/1 Smith v. London & South-Western Railway Co., L.R. 6 C.P. 14,
+21. Cf. S.C., 5 id. 98, 103, 106.
+
+93/2 Sharp v. Powell, L.R. 7 C.P. 253. Cf. Clark v. Chambers, 3
+Q.B.D. 327, 336-338. Many American cases could be cited which
+carry the doctrine further. But it is desired to lay down no
+proposition which admits of controversy, and it is enough for the
+present purposes that Si home fait un loyal act, que apres devint
+illoyal, ceo est damnum sine injuria. Latch, 13. I purposely omit
+any discussion of the true rule of damages where it is once
+settled that a wrong has been done. The text regards only the
+tests by which it is decided whether a wrong has been done.
+
+94/1 Mitchil v. Alestree, 1 Ventris, 295; S.C., 3 Keb. 650; 2
+Lev. 172. Compare Hammack v. White, 11 C.B. N.S. 588; infra, p.
+158.
+
+95/1 Harvey v. Dunlop, Hill & Denio, (Lalor,) 193.
+
+95/2 See Lecture II. pp. 54, 55.
+
+97/1 cf. Hobart v. Hagget, 3 Fairf. (Me.) 67.
+
+98/1 See Bonomi v. Backhouse, El. Bl. & El. 622, Coleridge, J.,
+at p. 640.
+
+99/1 3 Levirtz, 87, A.D. 1681.
+
+99/2 Compare the rule as to cattle in Y.B. 22 Edw. IV. 8, pl. 24,
+stated below, p. 118.
+
+100/1 Disc. 123, pr.; 124, Sections 2, 3. As to the historical
+origin of the latter rule, compare Lecture V.
+
+101/1 Lecture I, pp. 3, 4.
+
+101/2 Lib. I. c. 2, ad. fin.
+
+101/3 Fol. 155.
+
+101/4 Bro. Trespass, pl. 119; Finch, 198; 3 Bl. Comm. 118, 119.
+
+101/5 See Brunner, Schwurgerichte, p. 171.
+
+101/6 An example of the year 1195 will be found in Mr. Bigelow's
+very interesting and valuable Placita Anglo-Normanica, p. 285,
+citing Rot. Cur. Regis, 38; S.C. ? Abbr. Plac., fol. 2, Ebor.
+rot. 5. The suit was by way of appeal; the cause of action, a
+felonious trespass. Cf. Bract., fol. 144 a.
+
+102/1 An example may be seen in the Year Book, 30 & 31 Edward I.
+(Horwood), p. 106.
+
+103/1 6 Ed. IV. 7, pl. 18.
+
+103/2 Popham, 151; Latch, 13, 119, A.D. 1605.
+
+104/1 Hobart, 134, A.D. 1616.
+
+104/2 3 East, 593.
+
+105/1 1 Bing. 213, A.D. 1823.
+
+105/2 6 Cush. 292.
+
+106/1 Morris v. Platt, 32 Conn. 75, 84 et seq., A.D. 1864.
+
+106/2 Nitro-glycerine Case (Parrot v. Wells), 15 Wall. 524, 538.
+
+106/3 Hill & Denio, (Lalor,) 193; Losee v. Buchanan, 51 N.Y. 476,
+489.
+
+107/1 Vincent v. Stinehour, 7 Vt. 62. See, further, Clayton, 22,
+pl. 38; Holt, C.J., in Cole v. Turner, 6 Mod. 149; Lord
+Hardwicke, in Williams v. Jones, Cas. temp. Hardw. 298; Hall v.
+Fearnley, 8 Q.B. 919; Martin, B., in Coward v. Baddeley, 4 H.&N.
+478; Holmes v. Mather, L.R. 10 Ex. 261; Bizzell v. Booker, 16
+Ark. 308; Brown v. Collins, 53 N.H. 442.
+
+107/2 Blyth v. Birmingham Waterworks Co., 11 Exch. 781, 784;
+Smith v. London & South-Western Ry. Co., L.R. 5 C.P. 98, 102.
+Compare Campbell, Negligence, Section 1 (2d ed.), for Austin's
+point of view.
+
+109/1 cf. Bro. Corone, pl. 6; Neal v. Gillett, 23 Conn. 437, 442;
+D. 9. 2. 5, Section 2; D. 48. 8. 12.
+
+113/1 I Thorpe, p. 85; cf. LL. Hen. I., c. 88, Section 3.
+
+113/2 Spofford v. Harlow, 3 Allen, 176.
+
+114/1 See 27 Ass., pl. 56, fol. 141; Y.B. 43 Edw. III. 33, pl.
+38. The plea in the latter case was that the defendant performed
+the cure as well as he knew how, without this that the horse died
+for default of his care. The inducement, at least, of this plea
+seems to deal with negligence as meaning the actual state of the
+party's mind.
+
+115/1 Hobart, 134.
+
+115/2 See Knight v. Jermin, Cro. Eliz. 134; Chambers v. Taylor,
+Cro. Eliz. 900.
+
+115/3 32 Conn. 75, 89, 90.
+
+116/1 Y.B. 12 Hen. VIII. 2 b, Pl. 2.
+
+116/2 Keilway, 46 b.
+
+116/3 L.R. 3 H.L. 330, 339; L.R. 1 Ex. 265, 279-282; 4 H.&C. 263;
+3 id. 774.
+
+117/1 See Card v. Case, 5 C.B. 622, 633, 634.
+
+117/2 See Lecture I. p. 23 and n. 3.
+
+117/3 Mitten v. Fandrye, Popham, 161; S.C., 1 Sir W. Jones, 136;
+S.C., nom. Millen v. Hawery, Latch, 13; id. 119. In the latter
+report, at p. 120, after reciting the opinion of the court in
+accordance with the text, it is said that judgment was given non
+obstant for the plaintiff; contrary to the earlier statement in
+the same book, and to Popham and Jones; but the principle was at
+all events admitted. For the limit, see Read v. Edwards, 17 C.B.
+N.S. 245.
+
+118/1 Y.B. 22 Edw. IV. 8, pl. 24.
+
+118/2 Popham, at p. 162; S.C., Latch, at p. 120; cf. Mason v.
+Keeling, 1 Ld. Raym. 606, 608. But cf. Y.B. 20 Edw. IV. 10, 11,
+pl. 10.
+
+118/3 Latch, at p. 120. This is a further illustration of the
+very practical grounds on which the law of trespass was settled.
+
+118/4 12 Mod. 332, 335; S.C., 1 Ld. Raym. 606, 608.
+
+118/5 12 Mod. 335; Dyer, 25 b, pl. 162, and cas. in marg.; 4 Co.
+Rep. 18 b; Buxendin v. Sharp, 2 Salk. 662; S.C., 3 Salk. 169;
+S.C., nom. Bayntine v. Sharp, 1 Lutw. 90; Smith v. Pelah, 2
+Strange, 264; May v. Burdett, 9 Q.B. 101; Card v. Case, 5 C.B.
+622.
+
+119/1 12 Mod. 335. See Andrew Baker's case, 1 Hale, P.C. 430.
+
+119/2 Besozzi v. Harris, 1 F.&F. 92.
+
+119/3 See Fletcher v. Rylands, L.R. I Ex. 265, 281, 282; Cox v.
+Burbridge, 13 C.B. N.S. 430, 441; Read v. Edwards, 17 C.B. N.S.
+245, 260; Lee v. Riley, 18 C.B. N.S. 722; Ellis v. Loftus Iron
+Co., L.R. 10 C.P. 10; 27 Ass., pl. 56, fol. 141; Y.B. 20 Ed. IV.
+11, pl. 10; 13 Hen. VII. 15, pl. 10; Keilway, 3 b, pl. 7. Cf. 4
+Kent (12th ed.), 110, n. 1, ad fin.
+
+120/1 2 Ld. Raym. 909; 13 Am. L.R. 609.
+
+120/2 See Grill v. General Iron Screw Collier Co., L.R. 1 C.P.
+600, 612, 614.
+
+120/3 Railroad Co. v. Lockwood, 17 Wall. 357, 383.
+
+121/1 L.R. 1 C.P. 300.
+
+121/2 See Gorham v. Gross, 125 Mass. 232, 239, bottom.
+
+121/3 Minor v. Sharon, 112 Mass. 477, 487.
+
+122/1 See Winsmore v. Greenbank, Willes, 577, 583; Rex v. Oneby,
+2 Strange, 766, 773; Lampleigh v. Brathwait, Hobart, 105, 107;
+Wigram, Disc., pl. 249; Evans on Pleading, 49, 138, 139, 143 et
+seq.; Id., Miller's ed., pp. 147, 149.
+
+123/1 See Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17
+Mich. 99, 120.
+
+123/2 In the small-pox case, Minor v. Sharon, 112 Mass. 477,
+while the court ruled with regard to the defendant's conduct as
+has been mentioned, it held that whether the plaintiff was guilty
+of contributory negligence in not having vaccinated his children
+was "a question of fact, and was properly left to the jury." p.
+488.
+
+124/1 Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193, 197.
+
+125/1 See Kearney v. London, Brighton & S. Coast Ry. Co., L.R. 5
+Q.B. 411, 414, 417; S.C., 6 id. 759.
+
+125/2 Byrne v. Boadle, 2 H. & C. 722.
+
+125/3 See Skinnier v. Lodon, Brighton, & S. Coast Ry. Co., 5
+Exch. 787. But cf. Hammack v. White, 11 C.B. N.S. 588, 594.
+
+127/1 7 American Law Review, 654 et seq., July, 1873.
+
+128/1 Callahan v. Bean, 9 Allen, 401.
+
+128/2 Carter v. Towne, 98 Mass. 567.
+
+128/3 Lovett v. Salem & South Danvers R. R. Co., 9 Allen, 557.
+
+128/4 Back v. Stacey, 2 C.&P. 465.
+
+128/5 Cf. Beadel v. Perry, L.R. 3 Eq. 465; City of London Brewery
+Co. v. Termant, L.R. 9 Ch. 212, 220; Hackett v. Baiss, L.R. 20
+Eq. 494; Theed v. Debenham, 2 Ch. D. 165.
+
+135/1 Williamson v. Allison, 2 East, 446.
+
+136/1 Leather v. Simpson, L.R. 11 Eq. 398, 406. On the other
+hand, the extreme moral view is stated in Weir v. Bell, 3 Ex. D.
+238, 243.
+
+138/1 As to actual knowledge and intent, see Lecture II. p. 57.
+
+141/1 Cf. Knight v. German, Cro. Eliz. 70; S.C., ib. 134.
+
+141/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 594; Turner v. Ambler,
+10 Q.B. 252, 257, 261.
+
+142/1 Redfield, C. J. in Barron v. Mason, 31 Vt. 189, 197.
+
+142/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 595.
+
+143/1 See Burton v. Fulton, 49 Penn. St. 151.
+
+144/1 Rolfe, B. in Fouldes v. Willoughby, 8 Meeson & Welsby, 540.
+
+145/1 Supra, pp. 115 et seq.
+
+147/1 See, e.g., Cooley, Torts, 164.
+
+147/2 Rex v. Dixon, 3 Maule & Selwyn, 11, 15; Reg. v. Hicklin,
+L.R. 3 Q.B. 360; 5 C.&P. 266, n.
+
+148/1 Aleyn, 35; Style, 72; A.D. 1648.
+
+149/1 1 Kent (12th ed.), 467, n. 1; 6 Am. Law Rev. 723-725; 7 id.
+652.
+
+149/2 2 Wm. Bl. 892, A.D. 1773; supra, p. 92; Addison on Torts
+(4th ed.), 264, citing Y.B. 37 Hen. VI. 37, pl. 26, which hardly
+sustains the broad language of the text.
+
+151/1 Compare Crouch v. London & N. W. R. Co., 14 C.B. 255, 283;
+Calye's Case, 8 Co. Rep. 32; Co. Lit. 89 a, n. 7; 1 Ch. Pl. (lst
+ed,), 219, (6th ed.), 216, 217; 7 Am. Law Rev. 656 et seq.
+
+151/2 But cf. The Pawashick, 2 Lowell, 142.
+
+151/3 Gibson v. Stevens, 8 How. 384, 398, 399; Barnett v.
+Brandao, 6 Man. & Gr. 630, 665; Hawkins v. Cardy, 1 Ld. Raym.
+360.
+
+151/4 Pickering v. Barkley, Style, 132; Wegerstoffe v. Keene, 1
+Strange, 214, 216, 223; Smith v. Kendall, 6 T. R. 123, 124.
+
+155/1 Card v. Case, 5 C.B. 622, 634. Cf. Austin (3d ed.), 513.
+
+156/1 Rylands v. Fletcher, L.R. 3 H.L. 330; supra, p. 116.
+
+156/2 See Marshall v. Welwood, 38 N.J. (9 Vroom), 339; 2
+Thompson, Negligence, 1234, n. 3.
+
+157/1 Gorham v. Gross, 125 Mass. 232; supra, p. 117.
+
+158/1 Mitchil v. Alestree, 1 Vent. 295; S.C., 3 Keb. 650; 2 Lev.
+172; supra, p. 94.
+
+158/2 Hammack v. White, 11 C.B. N.S. 588.
+
+166/1 Laband, Vermogensrechtlichen Klagen, Section 16, pp. 108
+et seq.; Heusler, Gewere, 487, 492. These authors correct the
+earlier opinion of Bruns, R. d. Besitzes, Section 37, pp. 313 et
+seq., adopted by Sohm in his Proc. d. Lex Salica, Section 9. Cf.
+the discussion of sua in writs of trespass, &c. in the English
+law, at the end of Lecture VI. Those who wish short accounts in
+English may consult North Amer. Rev., CX. 210, and see Id.,
+CXVIII. 416; Essays in Anglo-Saxon Law, pp. 212 et seq. Our
+knowledge as to the primitive form of action is somewhat meagre
+and dependent on inference. Some of the earliest texts are Ed.
+Liutpr. 131; Lex Baiw., XV. 4; L. Frision. Add. X.; L. Visig.,
+V.5. I; L. Burg., XLIX. I, 2. The edict of Liutprand, dealing
+with housebreaking followed by theft of property left in charge
+of the householder, lays down that the owner shall look to the
+bailee alone, and the bailee shall hold the thief both for the
+housebreaking and for the stolen goods. Because, as it says, we
+cannot raise two claims out of one causa; somewhat as our law was
+unable to divide the severing a thing from the realty, and the
+conversion of it, into two different wrongs. Compare, further,
+Jones, Bailm. 112; Exodus xxii. 10-12; LL. Alfred, 28; I Thorpe,
+Anc. L., p. 51; Gaii Inst., III. Sections 202-207.
+
+167/1 XXXI. 16.
+
+168/1 "Peterit enim rem suam petere [civiliter] ut adiratam per
+testimonium proborum hominum, et sic consequi rem suam quamvia
+furatam. . . Et non refert utrum res que ita subtracta fuit
+extiterit illius appellantis propria vel alterius, dum tamen de
+custodia sua." Bract., fol. 150 b, 151; Britton (Nich. ed.), I.
+59, 60 [23 b], De Larcyns; cf. ib. 67 [26 b]; Fleta, fol. 5i, L.
+I. c. 38, Section 1.
+
+169/1 Y.B. 21 & 22 Ed. I. 466-468, noticed in North Amer. Rev.,
+CXVIII. 421, n. (So Britton [26 b], "Si il puse averreer la
+perte.") This is not trover. The declaration in detinue per
+inventionem was called "un newfound Haliday" in Y.B. 33 Hen. VI.
+26, 27; cf. 7 Hen. VI. 22, pl. 3; Isack v. Clarke, I Rolle, R.
+126, 128.
+
+169/2 Y.B. 2 Ed. IV. 4, 5, pl. 9; 21 Hen. VII. 39, pl. 49; Bro.
+Trespass, pl. 216, 295.
+
+169/3 2 Wms. Saund. 47, n. 1. See above, p. 167.
+
+170/1 Notes to Saunders, Wilbraham v. Snow, note (h).
+
+170/2 Y.B. 11 Hen. IV. 23, 24. See, further, Y.B. 8 Ed. IV. 6,
+pl. 5; 9 Ed. IV. 34, pl. 9; 3 Hen. VII. 4, pl. 16; 20 Hen. VII.
+1, pl. 1; 21 Hen. VII. 14 b, pl. 23; 13 Co. Rep. 69; 1 Roll. Abr.
+4(I), pl. I; F. N. B. 86, n. a; supra, p. 167.
+
+170/3 Fitz. Abr. Barre, pl. 130; Y.B. 9 Ed. IV. 34, pl. 9; 12 Am.
+Law Rev. 694.
+
+171/1 2 Steph. Comm. (6th ed.), 83, cited Dicey, Parties, 353; 2
+Bl. Comm. 453; 2 Kent, 585. As the bailee recovered the whole
+value of the goods, the old reason, that he was answerable over,
+has in some cases become a new rule, (seemingly based on a
+misunderstanding,) that the bailee is a trustee for the bailor as
+to the excess over his own damage. Cf. Lyle v. Barker, 5 Binn.
+457, 460; 7 Cowen, 68l, n.; White v. Webb, 15 Conn. 302, 305; in
+the order cited. (Thence the new rule has been extended to
+insurance recovered by a bailee. 1 Hall, N. Y. 84, 91; 3 Kent's
+Comm. (12th ed.), 371, 376, n. 1 (a).) In this form it ceases to
+be a reason for allowing the action.
+
+171/2 Y.B. 48 Ed. III. 20, pl. 8; Bro. Trespass, pl. 67. Cf. 1
+Britton (Nich. ed.), 67 [26 b]; Y.B. 6 Hen. VI1. 12, pl. 9; 12
+Ed. IV. 13, pl. 9; 12 Am. Law Rev. 694.
+
+172/1 Y.B. 22 Ed. IV. 5, pl. 16.
+
+172/2 2 Rolle, Abr. 569, Trespass, 5. Cf. Y.B. 20 Hen. VII. 5,
+pl. 15; 21 Hen. VII. 39, pl. 49; Clayton, 135, pl. 243; 2 Wms.
+Saund. 47 e (3d ed.).
+
+172/3 Bro. Trespass, pl, 67 in marg.; cf. Ed. Liutpr. 131, cited
+supra, p. 166, n.
+
+172/4 In one instance, where, against the opinion of Brian, the
+bailor was allowed to sue for damage to the chattel by a
+stranger, the action seems to have been case. Y.B. 12 Ed. IV. 13,
+pl. 9; cf. the margin of the report.
+
+173/1 Gordon v. Harper, 7 T. R. 9; Lord v. Price, L. IL 9 Ex. 54;
+Muggridge v. Eveleth, 9 Met. 233. Cf. Clayton, 135, pl. 243.
+
+173/2 Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v.
+Williams, 4 Exch. 339, 343, 344; Morgan v. Ide, 8 Cush. 420;
+Strong v. Adams, 30 Vt. 221, 223; Little v. Fosseft, 34 Me. 545.
+
+173/3 2 Camp. 464; cf. Mears v. London & South-Western Railway
+Co., 11 C.B. N.S. 849, 854.
+
+173/4 Addison, Torts (4th ed.), 364.
+
+174/1 Wms. Pers. Prop., 26 (5th ed.), 27 (7th ed.).
+
+174/2 Booth v. Wilson, I B. & Ald. 59; Y.B. 48 Ed. III. 20, pl.
+8; 11 Hen. IV. 17, pl. 39; 11 Hen. IV. 23, 24, pl. 46 (Tre. "ou
+d'apprompter"); 21 Hen. VII. 14b, pl. 23; Godbolt, 173, pl. 239;
+Sutton v. Buck, 2 Taunt. 302, 309; Burton v. Hughes, 2 Bing. 173;
+Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v. Williams, 4
+Exch. 339, 343, 344; 2 Wms. Saund., note to Wilbraham v. Snow; 2
+Kent, 585, 568, 574; Moran v. Portland S. P. Co., 35 Me. 55. See,
+further, Lecture VI. ad fin.
+
+175/1 Cf. Lord v. Price, L.R. 9 Ex. 54, 56, supra, p. 172.
+
+175/2 Supra, p. 167.
+
+175/3 Lib. X. c. 13; cf. I., c. 8.
+
+175/4 "Is qui rem commodatam accepit, ad ipsam restituendam
+tenetur, vel ejus precium, si forte incendio, ruins, naufragio,
+ant latronum, vel hostium incursu, consumpta fuerit vel
+deperdita, substracts, vel ablata." Fol. 99 a, b. This has been
+thought a corrupt text (Guterbock, Bracton, by Coxe, p. 175; 2
+Twiss, Bract. Int. xxviii.), but agrees with Glanvill, supra, and
+with Fleta, L. II. c. 56, Section 5.
+
+175/5 Bract., fol. 62 b, c. 28, Section 2; Fleta, L. II. e. 59,
+Section 4, fol. 128. Cf. Just. Inst. 3. 24, Section 5; ib. 15,
+Section 2.
+
+176/1 Y.B. 8 Ed. II. 275; Fitz. Detinue, pl. 59.
+
+176/2 2 Ld. Raym. 909.
+
+176/3 Y.B. 13 Ed. IV. 9, pl. 5. See Lecture VI.
+
+176/4 29 Ass. 163, pl. 28.
+
+176/5 Cf. Ratcliff v. Davis, Yelv. 178; Cro. Jac. 244; Noy, 137;
+1 Bulstr. 29.
+
+176/6 Y.B. 33 Hen. VI. 1, pl. 3. This case is cited and largely
+relied on in Woodlife's Case, infra; Southcote v. Bennett, infra;
+Pickering v. Barkley, Style, 132 (24 Car. I., covenant on a
+charter-party); and Morse v. Slue, infra; in short, in all the
+leading cases on bailment.
+
+177/1 Cf. Abbreviatio Plaeitorum, p. 343, col. 2, rot. 87, 17 Ed.
+II.
+
+178/1 Y.B. 9 Ed. IV. 34, pl. 9; 2 Ed. IV. 15, pl. 7. It is proper
+to add, that in the latter case Littleton does not seem to
+distinguish between servants and bailees.
+
+178/2 Y.B. 9 Ed. IV, 40, pl. 22. So Brian, in 20 Ed. IV. 11, pl.
+10, ad fin.
+
+178/3 Y.B. 10 Hen. VII. 25, 26, pl. 3.
+
+178/4 Cf. L. Baiw., XV. 5; Y.B. 33 Hen. VI. 1, pl. 3.
+
+178/5 Y.B. 6 Hen. VII. 12, pl. 9; Bro. Detinue, pl. 37; 10 Hen.
+VI. 21, pl. 69.
+
+178/6 Y.B. 3 Hen. VII. 4, pl. 16. Cf. 10 Hen. VI. 21, pl. 69.
+
+178/7 Y.B. 11 Hen. IV. 23, 24; 6 Hen. VII. 12, pl. 9.
+
+178/8 Cro. Eliz. 815; 4 Co. Rep. 83 b; Co. Lit. 89; 2 BI. Comm.
+452.
+
+180/1 Savile, 133, 134. Cf. Bro. Accion sur le Case, pl. 103;
+Dyer, 161 a, b.
+
+180/2 Nugent v. Smith, 1 C.P. D. 19, Brett, J., at p. 28.
+
+180/3 Nugent v. Smith, 1 C.P. D. 423, Cockburn, C. J., at p. 428.
+
+181/1 Moore, 462; Owen, 57.
+
+181/2 Dial. 2, ch. 38, A.D. 1530.
+
+182/1 Keilway, 160, pl. 2 (2 Hen. VIII.); cf. ib. 77b (21 Hen.
+VII.).
+
+182/2 Y.B. 33 Hen. VI. 1, pl. 3.
+
+182/3 4 Co. Rep. 83 b; Cro. Eliz. 815.
+
+183/1 Keilway, 160, pl. 2.
+
+183/2 Y.B. 19 Hen. VI. 49, ad fin. Cf. Mulgrave v. Ogden, Cro.
+Eliz. 219; S.C., Owen, 141, 1 Leon. 224; with Isaack v. Clark, 2
+Bulstr. 306, at p. 312, Coke, J.
+
+183/3 See Lecture VII.
+
+184/1 Paston, J., in Y.B. 19 Hen. VI. 49. See, also, Rogers v.
+Head, Cro. Jac. 262; Rich v. Kneeland, Cro. Jac. 330, which will
+be mentioned again. An innkeeper must be a common innkeeper, Y.B.
+11 Hen. IV. 45. See further, 3 Bl. Comm. 165, where "the
+transition from status to contract" will be found to have taken
+place.
+
+184/2 F. N. B. 94 D; infra, p. 203.
+
+184/3 Y.B. 7 Hen. IV. 14; 12 Ed. IV. 13, pl. 9, 10; Dyer, 22 b.
+
+184/4 The process may be traced by reading, in the following
+order, Y.B. 2 Hen. VII. 11; Keilway, 77 b, ad fin. (21 Hen.
+VII.); ib. 160, pl. 2 (2 Hen. VIII.); Drake v. Royman, Savile,
+133, 134 (36 Eliz.); Mosley v. Fosset, Moore, 543 (40 Eliz.); 1
+Roll. Abr. 4, F, pl. 5; Rich v. Kneeland, Cro. Jac. 330 (11 Jac.
+I.).
+
+185/1 Cro. Jac. 262 (8 Jac. I.). Compare Maynard's argument in
+Williams v. Hide, Palmer, 548; Symons v. Darknoll, ib. 523, and
+other cases below; 1 Roll. Abr. 4, F, pl. 3. Mosley v, Fosset,
+Moore, 543 (40 Eliz.); an obscurely reported case, seems to have
+been assumpsit against an agistor, for a horse stolen while in
+his charge, and asserts obiter that "without such special
+assumpsit the action does not lie." This must have reference to
+the form of the action, as the judges who decided Southcote's
+Case took part in the decision. See, further, Evans v. Yeoman,
+Clayton, 33.
+
+186/1 See Symons v. Darknoll, and the second count in Morse v.
+Slue infra. (The latter case shows the averment of negligence to
+have been mere form.) Cf. I Salk. 18, top.
+
+187/1 Supra, p. 179.
+
+187/2 Boson v. Sandford, Shower, 101; Coggs v. Bernard, infra.
+
+187/3 Symons v. Darknoll, infra.
+
+188/1 Reg. Brev. 92b, 95a, 98a, 100b, 104a; cf. Y.B. 19 Ed. II.
+624; 30 Ed. III. 25, 26; 2 Hen. IV. 18, pl. 6; 22 Hen. VI. 21,
+pl. 38; 32 & 33 Ed. I., Int., xxxiii.; Brunner, Schwurgerichte,
+177; id. Franzosische, Inhaberpapier, 9, n. 1.
+
+188/2 12 Co. Rep. 64.
+
+188/3 See, besides the following cases, the declaration in
+Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.), and note
+especially the variations of statement in Morse v. Slue, set
+forth below, in the text.
+
+189/1 Hobart, 17; Cro. Jac. 330. See also George v. Wiburn, 1
+Roll. Abr. 6, pl. 4 (A.D. 1638).
+
+190/1 The use which has been made of this case in later times
+shows the extreme difficulty in distinguishing between principles
+of substantive law and rules relating only to procedure, in the
+older books.
+
+190/2 Y.B. 22 Hen. VI. 21, pl. 38; supra, p. 188, n. 1.
+
+191/1 Palmer, 523.
+
+191/2 Palmer, 548.
+
+191/3 Aleyn, 93.
+
+191/4 1 Sid. 36.
+
+192/1 1 Sid. 244. Cf. Dalston v. Janson, 1 Ld. Raym. 58.
+
+192/2 2 Keb. 866; 3 id. 72, 112, 135; 2 Lev. 69; I Vent. 190,
+238; 1 Mod. 85; Sir T. Raym. 220.
+
+193/1 2 Keb. 866. See 3 Keb. 74; 1 Mod. 85; Sir T. Raym. 220.
+
+193/2 2 Keb. 72.
+
+193/3 Y.B. 33 Hen. VI. 1; supra, p. 177.
+
+193/4 3 Keble, 73. This is the main point mentioned by Sir T.
+Raymond and Levinz.
+
+193/5 Cf. 1 Mod. 85.
+
+194/1 1 Ventris, 238, citing Southcote's Case in the margin. Cf.
+3 Keble, 135.
+
+194/2 Aleyn, 93; supra, p. 191.
+
+194/3 See also 1 Hale, P.C. 512, 513.
+
+195/1 King v. Viscount Hertford, 2 Shower, 172, pl. 164; cf.
+Woodlife's Case, supra.
+
+195/2 Boson v. Sandford, 1 Shower, 101 (2 W. & M.). See above,
+pp. 183,185; below, p. 197. Modern illustrations of the doctrine
+will be found in Fleming v. Manchester, Sheffield, &
+Lincolnshire Railway Co., 4 Q.B.D. 81, and cases cited. In
+Boorman v. Brown, 3 Q.B.511, 526, the reader the primitive
+assumpsit, which was the inducement to a declaration in tort,
+interpreted as meaning contract in the modern sense. It will be
+seen directly that Lord Holt took a different view. Note the mode
+of dealing with the Marshal's case, 33 Hen; VI. 1, in Aleyn, 27.
+
+196/1 See Lovett v. Hobbs, 2 Shower, 127 (32 Car. II.);
+Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.); Boson v.
+Sandford, 1 Shower, 101, citing Southcote's Case (2 W. & M.);
+Upshare v. Aidee, 1 Comyns, 25 (8 W. III.); Middleton v. Fowler,
+I Salk. 288 (10 W. III.).
+
+196/2 12 Mod. 472.
+
+196/3 2 Ld. Raym. 909.
+
+197/1 Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5 (39 Eliz.). Cf.
+Keilway, 160.
+
+197/2 2 Ld. Raym. 919. See Lecture VII. How little Lord Holt
+meant to adopt the modern view, that delivery, being a detriment
+to the owner, was a consideration, may be further seen by
+examining the cases put and agreed to by him from the Year Books.
+
+199/1 2 Kent, 598; 1 C.P. D. 429.
+
+199/2 Palmer, 523. See too Keilway, 77 b, and 160, pl. 2, where
+the encroachment of case on detinue, and the corresponding
+confusion in principle, may be pretty clearly seen taking place.
+But see p. 175, supra.
+
+200/1 2 Kent, 597; Forward v. _Pittard, 1 T. R. 27.
+
+200/2 Cf. Y.B. 7 Hen. IV. 14; 2 Hen. VII. 11; Keilway, 77 b, 160,
+pl. 2, and other cases already cited.
+
+200/3 Y.B. 41 Ed. III. 3, pl. 8.
+
+200/4 Y.B. 33 Hen. YI. 1, pl. 3.
+
+200/5 Reg. Brev. 107 a, 108 a, 110 a, b; entries cited 1 T. R.
+29.
+
+200/6 See above, pp. 167, 175 et seq.; 12 Am. Law Rev. 692, 693;
+Y.B. 42 Ed. III. 11, pl. 13; 42 Ass., pl. 17.
+
+201/1 1 Wilson, 282; cf. 2 Kent (12th ed.), 596, n. 1, b.
+
+201/2 Y.B. 33 Hen. VI. 1, pl. 3.
+
+202/1 Mouse's Case, 12 Co. Rep. 63.
+
+202/2 Bird v. Astcock, 2 Bulstr. 280; cf. Dyer, 33 a, pl. 10;
+Keighley's Case, 10 Co. Rep. 139 b, 140.
+
+202/3 Y.B. 40 Ed. III. 5, 6, pl. 11; see also Willams v. Hide,
+Palmer, 548; Shep. Touchst. 173.
+
+203/1 See Safe Delcosit Company of Pittsburgh v. Pollock, 85
+Penn. 391.
+
+203/2 Paston, J., in Y.B. 21 Hen. VI. 55; Keilway, 50 a, pl. 4;
+Hardres, 163.
+
+203/3 Lane v. Cotton, 1 Ld. Raym. 646, 654; 1 Salk. 18; 12 Mod.
+484.
+
+204/1 Forward v. Pittard, 1 T. R. 27, 83.
+
+205/1 Printing and Numerical Registering Co. v. Sampson, L.R. 19
+Eq. 462, 465.
+
+207/1 Possession, Section 6, Eng. tr., pp. 27, 28.
+
+207/2 R. d. Besitzes, 487.
+
+208/1 R. d. Besitzes, 490, 491.
+
+208/2 Bruns, R. d. Besitzes, 415; Windscheid, Pand. Section 148,
+n. 6. Further Hegelian discourse may be found in Dr. J. Hutchison
+Sterling's Lectures on the Philosophy of Law.
+
+208/3 Institutionen, Sections 224, 226; Windscheid, Pand. Section
+148, n. 6.
+
+208/4 Windscheid, Pand. Section 148, n. 6.
+
+208/5 Besitzklagen, 276, 279.
+
+209/1 Bruns, R. d. Besitzes, 499.
+
+209/2 Bruns, R. d. Besitzes, Section 2, pp. 5 et seq.; Puchta,
+Besitz, in Weiske, Rechtslex.; Windscheid, Pand. Section 154,
+pp. 461 et seq. (4th ed.).
+
+209/3 D. 41.2.3, Section 20; 13.6.8 & 9. Cf. D. 41.1.9, Section 5.
+
+210/1 But see Ihering, Geist d. Rom. R., Section 62, French tr.,
+IV. p. 51.
+
+210/2 Heusler thinks this merely a result of the English
+formalism and narrowness in their interpretation of the word suo
+in the writ (disseisivit de teuemento suo). Gewere, 429-432. But
+there was no such narrowness in dealing with catalla sua in
+trespass. See below, p. 242.
+
+210/3 See, further, Bracton, fol. 413; Y.B. 6 Hen. VII. 9, pl. 4.
+
+211/1 Infra, p. 243.
+
+211/2 R. d. Besitzes, 494.
+
+212/1 Rogers v. Spence, 13 M. & W. 579, 581.
+
+212/2 Webb v. Fox, 7 T. R. 391, 397.
+
+212/3 Fennings v. Lord Grenville, 1 Taunt. 241; Littledale v.
+Scaith, ib. 243, n. (a); cf. Hogarth v. Jackson, M. & M. 58;
+Skinner v. Chapman, ib. 59, n.
+
+212/4 Swift v. Gifford, 2 Lowell, 110.
+
+212/5 1 Taunt. 248.
+
+213/1 Cf. Wake, Evolution of Morality, Part I. ch. 4, pp. 296 et
+seq.
+
+215/1 Asher v. Whitlock, L.R. 1 Q.B.1.
+
+215/2 People v. Shearer, 30 Cal. 645.
+
+217/1 2 Kent's Comm. 349, citing Pierson v. Post, 3 Caines, (N.
+Y.) 175; Buster v. Newkirk, 20 Johnson, (N. Y.) 75.
+
+217/2 Young v. Hichens, 6 Q.B.606.
+
+217/3 2 Kent's Comm. 349, n. (d).
+
+218/1 Inst. 2. 1, Section 13.
+
+218/2 Swift v. Gifford, 2 Lowell, 110.
+
+218/3 Savigny, R. d. Besitzes, Section 21.
+
+218/4 II. 9, Section 4; III. 29, Section 2. Animus domini will be
+used here as shortly indicating the general nature of the intent
+required even by those who deny the fitness of the expression, and
+especially because Savigny's opinion is that which has been
+adopted by English writers.
+
+219/1 Cf. Bruns, R. d. Besitzes, 413, and ib. 469, 474, 493, 494,
+505; Windscheid, Pand. Section 149, n. 5 (p. 447, 4th ed.);
+Puchta, Inst. Section 226.
+
+219/2 Supra, p. 207; 2 Puchta, Inst. Section 226 (5th ed.), pp.
+545, 546.
+
+221/1 15 Jur. 1079; 21 L. J. Q.B.75; 7 Eng. L. & Eq. 424.
+
+222/1 11 Allen, 548.
+
+223/1 Kincaid v. Eaton, 98 Mass. 139.
+
+223/2 Barker v. Bates, 13 Pick. 255, 257, 261; Proctor v. Adams,
+113 Mass. 376, 377; 1 Bl. Comm. 297, Sharsw. ed., n. 14. Cf.
+Blades v. Hiqgs, 13 C.B. N.S. 844, 847, 848, 850, 851; 11 H. L.
+C. 621; Smith v. Smith, Strange, 955.
+
+223/3 Reg. v. Rowe, Bell, C.C. 93.
+
+224/1 See, as to treasure hidden in another's land, D. 41. 2. 44,
+pr.; D. 10. 4. 15. Note the different opinions in D. 41.2. 3,
+Section 3.
+
+224/2 3 Inst. 107; 1 Hale, P.C. 504, 505; 2 Bishop, Crim. Law,
+Sections 834, 860 (6th ed.).
+
+224/3 Reg. v. Middleton, L.R. 2 C.C. 38, 55. Cf. Halliday v.
+Holgate, L.R. 3 Ex. 299, 302.
+
+224/4 Cf. Y.B. 8 Ed. II. 275; Fitzh. Abr. Detinue, ph 59; Y.B. 13
+Ed. IV. 9, pl. 5; Keilway, 160, pl. 2; Merry v. Green, 7 M. & W.
+623, 630. It may not be necessary to go quite so far, however,
+and these cases are not relied on as establishing the theory. For
+wrong explanations, see 2 East, P.C. 696.
+
+225/1 Durfee v. Jones, 11 R. I. 588.
+
+225/2 Reg. v. Rowe, Bell, C.C. 93, stated above.
+
+225/3 8 Ves. 405; 7 M. & W. 623; Stephen, Crim. Law, Art. 281,
+Ill. (4), p. 197. He says, "because [the owner of the safe]
+cannot be presumed to intend to act as the owner of it when he
+discovers it,"--a reason drawn from Savigny, but not fitted to
+the English law, as has been shown.
+
+226/1 Y.B. 13 Ed. IV. 9, 10, pl. 5; 21 Hen. VII. 14, pl. 21. Cf.
+3 Hen. VII. 12, pl. 9; Steph. Crim. Law, Art. 297, and App., note
+xvii.
+
+226/2 Steph. Crtre. Law, Art. 297, and App., note xvii. p. 882.
+It may be doubted whether the old law would have sanctioned the
+rule in this form. F. N. B. 91 E; Y.B. 2 Ed. IV. 15, pl. 7.
+
+226/3 Y.B. 21 Hen. VII. 14, pl. 21; 13 Co. Rep. 69.
+
+227/1 They have been said to be a part of the family pro hac
+vice. Southcote v. Stanley, 1 H. & N. 247, 250. Cf. Y.B. 2 Hen.
+IV. 18, pl. 6.
+
+227/2 Moore, 248, pl. 392; S.C., Owen, 52; F. N. B. 91 E; 2 B1.
+Comm. 396; 1 H. Bl. 81, 84; 1 Chitty, Pl. 170 (1st ed.); Dicey,
+Parties, 358; 9 Mass. 104; 7 Cowen, 294; 3 S. & R. 20; 13
+Iredell, 18; 6 Barb. 362, and cases cited. Some of the American
+cases have been denied, on the ground that the custodian was not
+a servant. Cf. Holiday v. Hicks, Cro. Eliz. 638, 661, 746; Drope
+v. Theyar, Popham, 178, 179.
+
+228/1 Bracton, fol. 6 a, Section 3, 12 a, 17 a, Cap. V. ad fin.,
+25 a, b, etc.; Pucbra, Inst. Section 228.
+
+228/2 See also 7 Am. Law Rev. 62 et seq.; 10 Am. Law Rev. 431; 2
+Kent, Comm. (12th ed.), 260, n. 1.
+
+228/3 1 Comm. 427. Cf. Preface to Paley on Agency. Factors are
+always called servants in the old books, see, e. g., Woodlife's
+Case, Owen, 57; Holiday v. Hicks, Cro. Eliz. 638; Southcote's
+Case, 4 Co. Rep. 83 b, 84 a; Southern v. How, Cro. Jac. 468; St.
+21 Jac. I., c. 16, Section 3; Morse v. Slue, 3 Keble, 72. As to
+bailiffs, see Bract. 26 b, "Reestituat domino, vel servienti,"
+etc.; Y.B. 7 Hen. IV. 14, pl. 18.
+
+229/1 Paley, Agency, c. 4, Section 1, citing Godbolt, 360. See,
+further, F. N. B. 120, G; Fitzh. Abr. Dette, pl. 3; Y.B. 8 Ed.
+IV. 11, pl. 9. These rules seem to be somewhat modern even as to
+servants. The liability of a master for debts contracted by his
+servant is very narrowly limited in the earlier Year Books.
+
+230/1 I am inclined to think that this extension has been largely
+due to the influence of the Roman law. See Lecture I. p. 20, n.
+1, and observe the part which the precedents as to fire (e. g.,
+Y.B. 2 Hen. IV. 18, pl. 6) have played in shaping the modern
+doctrine of master and servant. Tuberville v. Stampe, I Ld. Raym.
+264 (where Lord Holt's examples are from the Roman law); Brucker
+v. Fromont, 6 T. R. 659; M'Manus v. Crickett, 1 East, 106; Patten
+v. Rea, 2 C.B. N.S. 606. In Southern v. How, Popham, 143, Doctor
+and Student is referred to for the general principles of
+liability. Doctor and Student states Roman law. See, further,
+Boson v. Sandford, 1 Shower, 101, 102.
+
+230/2 Bac. Ahr. Master and Servant, K; Smith, Master and Servant
+(3d ed.), 260, n. (t).
+
+230/3 Clapp v. Kemp, 122 Mass. 481; Murray v. Currie, L.R. 6 C.P.
+24, 28; Hill v. Morey, 26 Vt. 178.
+
+230/4 See, e.g., Patten v. Rea, 2 C.B. N.S. 606; Bolingbroke v.
+Swindon Local Board, L.R. 9 C.P. 575.
+
+230/5 Freeman v. Rosher, 13 Q.B.780, 785; Gauntlett v. King, 3 C.
+B. N.S. 59; Haseler v. Lemoyne, 28 L. J. C.P. 103; Collett v.
+Foster, 2 H. & N. 356; Barwick v. English Joint Stock Bank, L.R.
+2 Ex. 259, 265, 266; Lucas v. Mason, L.R. 10 Ex. 251, 253, last
+paragraph; Mackay v. Commercial Bank of New Brunswick, L.R. 5
+P.C. 394, 411, 412. So as to partners, 3 Kent's Comm. (12th ed.),
+46, notes (d) & 1.
+
+231/1 Bush v. Steinman, 1 B. & P. 404, 409.
+
+231/2 6 M. & W. 358. Cf. Udell v. Atherton, 7 H. & N. 172, 184,
+for a comment like that in the text. Other grounds for the
+decision are immaterial here.
+
+231/3 Mackay v. Commercial Bank of New Brunswick, L.R. 5 P.C.
+394; Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259; Western
+Bank of Scotland v. Addie, L.R. 1 H. L. Sc. 145; 2 Kent (12th
+ed.), 616, n. 1; Swift v. Jewsbury, L.R. 9 Q.B.301, overruling
+S.C. sub nom. Swift v. Winterbotham, L.R. 8 Q.B.244; Weir v.
+Bell, 3 Ex. D. 238, 244. The objections which Baron Bramwell
+mentions (L.R. 9 Q.B.815) to holding one man liable for the
+frauds of another, are objections to the peculiar consequences
+attaching to the relation of master and servant in general, and
+have been urged in that more general form by the same learned
+judge. 12 Am. Law Rev. 197, 200; 2 H. & N. 856, 361. See 7 Am.
+Law Rev. 61, 62.
+
+231/3 7 Am. Law Rev. 63 (Oct. 1872).
+
+232/1 D. 44. 2. 4, note 17, Elzevir ed.
+
+232/2 Hunter's Roman Law, 431.
+
+232/3 Ancient Hist. of Inst. 235.
+
+232/4 Cf. Gillett v. Ball, 9 Penn. St. 13; Craig v. Gilbreth, 47
+Me. 416; Nickolson v. Knowles, 5 Maddock, 47; Williams v. Port,
+L.R. 12 Eq. 149; Adams v. Jones, 12 Ad. & El. 455; Bracton, fol.
+28 b, 42 b, 43. And compare with the passage cited above from
+Blackstone: "Possider, cujus riomine possidetur, procurator
+alienae possessioni praestat ministerium." D. 41. 2. 18, pr.
+
+233/1 Ward v. Macaulay, 4 T. R. 489, 490. Cf. as to factors
+supra, p. 228.
+
+233/2 Berndtson v. Strang, L.R. 3 Ch. 588, 590.
+
+233/3 Blackburn, Sale, 33; Marvin v. Wallis, 6 El. & Bl. 726.
+
+233/4 D. 41. 2. 18, pr. "Quod meo nomine possideo, possum alieno
+nomine possidere: nec enim muto mihi causam possessionis, sed
+desino possidere et alium possessorem ministerio meo facio. Nec
+idem est possidere et alieno nomine possidere: nam possidet,
+cujus nomine possidetur, procurator alienae possessioni praestat
+ministerium." Thus showing that the vendor changed possession by
+holding in the name of the purchaser, as his agent to possess.
+Cf. Bracton, fol. 28 b.
+
+233/4 Windscheid, Pand. Section 155, n. 8 a; 2 Kent (12th ed.),
+492, n. 1 (a). It should be kept in mind also that the Roman
+law denied possession to bailees.
+
+234/1 See, e. g., Farina v. Home, 16 M. & W. 119, 123.
+
+235/1 McGahey v. Moore, 3 Ired. (N. C.) 35.
+
+235/2 Reader v. Moody, 3 Jones, (N. C.) 372. Cf. Basset v.
+Maynard, Cro. Eliz. 819, 820.
+
+235/3 Browne v. Dawson, 12 A. & E. 624. Cf. D. 43. 16. 17; ib. 3,
+Section 9; D. 41. 2. 18, Section 3; Clayton, 147, pl. 268.
+
+236/1 Cf. Bruns, R. d. Besitzes, 503.
+
+237/1 Clark v. Maloney, 3 Harrington (Del.), 68. Bruns (R. d.
+Besitzes, 503, 507) comes to the same conclusion on practical
+grounds of convenience, although he utterly repudiates it on
+theory. I must refer to what I said above touching these
+conflicts between theory and convenience.
+
+238/1 Bruns, R. d. Besitzes, Section 57, p. 486. A learned writer
+of more ancient date asks why a doctor has not a possessory action
+if you cease to employ him, and answers: "Sentio actionem non
+tenere, sed sentio tantum, nec si vel morte mineris, possum
+dicere quare. Tu lector, si sapis, rationes decidendi suggere."
+Hommel, Rhaps., qu. 489, cited, Bruns, 407.
+
+239/1 Gardiner v. Thibodeau, 14 La. An. 732.
+
+239/2 Bruns, 483.
+
+240/1 2 Kent (12th ed.), 205, n. 1. Cf. Y.B. 21 Hen. VI. 8, 9,
+pl. 19; American note to Scott v. Shepherd, in 1 Sm. L. C. (Am.
+ed.).
+
+240/2 Britton (Nich. ed.), I. 277 (cf. Bract., fol. 164 b; Fleta,
+fol. 214; Glanv., Lib. XIII. c. 37); Littleton, Sections 237-240,
+588, 589; 3 Bl. Comm. 170; 3 Cruise, Dig., tit. xxviii.,
+Rents, ch. 2, Section 34.
+
+241/1 See Lecture XI.
+
+241/2 Cf. Stockport Water Works v. Potter, 3 H. & C. 300, 318.
+The language in the seventh English edition of 1 Sm. L. C., 300,
+is rather too broad. If the law should protect a possessor of
+land in the enjoyment of water coming to it, it would do so
+because the use of the water was regarded as a part of the
+enjoyment of that land, and would by no means imply that it would
+do the same in the case just put of a way over land of another.
+
+242/1 Jefferies v. Great Western Railway Co., 5 El. & B1. 802.
+Cf. Armory v. Delamirie, 1 Strange, 505, 1 Sm. L. C.
+
+242/2 Co. Lit. 145 b.
+
+242/3 2 Wms. Saund. 47 b, note 1, to Wilbraham v. Snow.
+
+242/4 Bract., fol. 150 b, 151; supra, p. 168; Y.B. 22 Ed. I.
+466-468.
+
+242/5 Y.B. 48 Ed. III. 20; 11 Hen. IV. 17; 11 Hen. IV. 23, 24; 21
+Hen. VII. 14. The meaning of sua is discussed in Y.B. 10 Ed. IV.
+1, B, by Catesby. Compare Laband, Vermogensrechtlichen Klagen,
+111; Heusler, Gewere, 492 et seq., correcting Bruns, R. d.
+Besitzes, 300 et seq.; Sohm, Proc. d. L. Sal., Section 6.
+
+243/1 Y.B. 11 Hen. IV. 17, pl. 39.
+
+243/2 Y.B. 21 Hen. VII. 14 b, pl. 23.
+
+243/3 Godbolt, 173, pl. 239. Cf. 11 Hen. IV. 17, pl. 39.
+
+243/4 Bro. Abr. Trespass, pl. 433, cit. Y.B. 13 Hen. VII. 10.
+
+243/5 Kelyng, 89. See, further, Buller, N. P. 33.
+
+243/6 Lecture V.; Y.B. 20 Hen. VII. 1, pl. 11.
+
+243/7 Y.B. 21 lien. VII. 14 b, pl. 23.
+
+243/8 1 Roll. Abr. 4, 5 (I), pl. 1. Cf. Arnold v. Jefferson, 1
+Ld. Raym. 275.
+
+244/1 29 Ass., fol. 163, pl. 28.
+
+244/2 Southcote's Case, 4 Co. Rep. 83 b.
+
+244/3 Mores v. Conham, Owen, 123. Cf. Ratcliff v. Davis, I
+Bulstr. 29.
+
+244/4 Doe v. Dyball, Mood. & M. 346 and note; 2 Wms. Saund. 111,
+and later notes; I Ad. & El. 119; Asher v. Whitlock, L.R. 1
+Q.B.1.
+
+244/5 Graham v. Peat, 1 East, 244.
+
+245/1 As to this period see Heusler, Gewere. Cf. Laveleye,
+Propriete, 166.
+
+248/1 2 Hist. du Droit Franc., pp. 146 et seq, 152.
+
+248/2 Anciens Poetes de la France, (Guessard,) p. 71.
+
+248/3 Page 283; cf. 284, cxviii, et seq., 44, lxix.
+
+249/1 Sohm, Proc. d. Lex. Sal., Sections 15, 23-25, tr. Thevenin,
+pp. 80, 105, 122.
+
+249/2 Essays in A. S. Law, p. 292.
+
+249/3 Cap. VIII., Merkel, p. 48.
+
+249/4 Cap. LXXXIX. Section 3, Essays in A. S. Law, p. 291.
+
+249/5 Chap. IV. Section 16.
+
+250/1 Fitzh. Abr. Mainprise, pl. 12 (H. 33 Ed. III.);
+Staundforde, P.C. 65.
+
+250/2 Abbr. Plac., p. 343, col 2, rot. 37, 17 Ed. II.
+
+250/3 Jacob, L. D., "Bail." Cf. I Bulstr. 45; .Hawkins, P.C., II.
+ch. 15, Section 83; Abbr. Plac., p. 343, col. 2, rot. 37, 17 Ed.
+II.
+
+250/4 Highmore, Bail, p. 199; Jacob, L. D., "Bail." Cf. 2
+Laferriere, Hist. du Droit Franc., p. 148.
+
+250/5 Highmore, p. 195.
+
+250/6 Ibid., p. 200.
+
+252/1 Vermoegensrechtlichen Klagen.
+
+253/1 II. c. 60, Section 25. Glanvill's "justa debendi causa"
+(Lib. X.
+c. 4) seems remote from consideration.
+
+254/1 Y.B. 3 Hen. VI. 36.
+
+254/2 Y.B. 37 Hen. VI. 13, pl. 3.
+
+254/3 Y.B. 37 Hen. VI. 8, pl. 33.
+
+254/4 Glanv., Lib. X. c. 12; Bract, fol. 400b, Section 10; 22
+Ass., pl. 70, fol. 101.
+
+255/1 Essays in A. S. Law, 187.
+
+256/1 I. 45; III. 10.
+
+256/2 Lib. X. e. 17. Suit, secta, was the term applied to the
+persons whose oath the party tendered.
+
+257/1 Lib. X. c. 12 (Beames, p. 262); c. 8 & c. 5 (Beames, pp.
+256, 251); cf. IV. c. 6, where witnesses are tendered de visu et
+auditu. Cf. Bract., 315 b, Section 6 Fleta, II. c. 63, Section10,
+p. 137. It was no doubt true, as Glanvill says, Lib. X. c. 17,
+that the usual mode of proof was by a writing or by duel, and
+that the King's Court did not generally give protection to private
+agreements made anywhere except in the Court of the King (Lib. X.
+c. 8). But it can hardly be that debts were never established by
+witness in his time, in view of the continuous evidence from
+Bracton onwards.
+
+257/2 But cf. Brunner, Schwurgerichte, 399. I do not go so far as
+to say that they were still a living institution. However that
+may be, tradition must at least have modelled itself on what had
+been the function of the former official body.
+
+257/3 Bract., fol. 315 b, Section 6; Britt. (Nich.) I. p. 162;
+Magna Charta, c. 38; Y.B. 21 Ed. I. 456; 7 Ed. II. 242;
+18 Ed. II. 582; 3 Bl. Comm. 295, 344. Cf. 17 Ed. III. 48 b.
+
+257/4 Cf. Glanv., Lib. IV. c. 6.
+
+258/1 Lib. X. c. 18. It is possible that this means no more than
+Glanvill's often repeated statement, that the King's Court did
+not, generally speaking, take cognizance of private agreements.
+The substantive law was, perhaps, still limited by traditions
+from the infancy of contract. See pp. 248, 251, 259, 260. The
+proposition in its broadest form may have been based on the
+inability to try such agreements in any way but those which have
+been specified. Cf. the requirement of aliam diracionationem and
+aliis probationibus, in Lib. X. c. 12. But cf. Ibid. with Essays
+in A. S. Law, pp. 189, 190.
+
+259/1 Sharington v. Strotton, Plowden, 298, at p. 302, M. 7 & 8
+Eliz.
+
+259/2 Pillans v. Van Mierop, 3 Burrow, 1663, 1669.
+
+260/1 1 Thorpe, Anc. Laws, 181, Oaths, 7, 8.
+
+260/2 Glanv., Lib. X. c. 5 (Beames, p. 251); Y.B. 7 Ed. II. 242;
+Novae Narr. Dette-Vers plege, Rastell's Law Tracts, p. 253, D, 2
+Finl. Reeves, 376.
+
+261/1 Glanv., Lib. X. c. 22 (Beames, p. 263); Bract., fol. 398 b,
+Section 1. The favorite proof by duel was also allowed, but this
+disappeared. When the inquest became general, the execution of
+the deed was tried, like any other fact, by that means.
+
+261/2 Bract., fol. 315 b, Section 6, 400 b; Coke, 2d Inst., 44,
+45.
+
+262/1 Glanv., Lib. X. c. 12 (Beames, p. 263); Bract., fol. 100 b,
+Section 9.
+
+262/2 Glanv., Lib. X. c. 17 (Beames, p. 272).
+
+262/3 Bract., fol. 400 b, Section 9.
+
+262/4 Cf. Y.B. 20 Ed. I. 304, and 34 Ed. II., 150, 152; ib. 330,
+332; 35 Ed. I. 546.
+
+263/1 Bract., fol. 400 b, Section 8.
+
+263/2 Cf. Y.B. 20 Ed. I. 304.
+
+263/3 Cap. 28; 32 & 33 Ed. I. 516; 18 Ed. II. 582; Fleta, II. c,
+63, Section 9; Coke, 2d Inst., 44; 3 Bl. Comm. 344.
+
+263/4 Y.B. 18 Ed. II. 582; 17 Ed. III. 48 b, pl. 14.
+
+264/1 Y.B. 29 Ed. III. 25, 26; cf. 48 Ed. III. 6, pl. 11; Fleta,
+II. c. 60, Section 25; Glanvill, Lib. X. c. 12.
+
+264/2 Cf. Bro..Acc. sur le Case, pl. 5; S.C., 27 Hen. VIII. 24,
+25, pl. 3.
+
+264/3 Y.B. 18 Ed. III. 13, pl. 7.
+
+264/4 Y.B. 44 Ed. III. 21, pl. 23.
+
+264/5 F. N. B. 122, I, in margin. Cf. F. N. B. 122 K; Y.B. 43 Ed.
+III. 11, pl. 1; S.C., Bro. Pledges, pl. 3; 9 Hen. V. 14, pl. 23.
+
+265/1 Y.B. 17 Ed. III. 48 b, pl. 14. Cf. Fortescue (Amos), 67,
+n.; 3 Bl. Comm. 295.
+
+265/2 For limit, see Constit. of Clarendon, c. 15; Glanv., Lib.
+X. c. 8, 12; Y.B. 22 Ass., pl. 70, fol. 101; 45 Ed. III. 24, pl.
+30; 19 R. II., Fitzh. Abr. Dett, pl. 166; 37 Hen. VI. 8, pl. 18;
+14 Ed. IV. 6, pl. 3; 15 Ed. IV. 32, pl. 14; 19 Ed. IV. 10, pl.
+18; 20 Ed. IV. 3, pl. 17.
+
+266/1 See for an illustration 2 Kent's Comm. (12th ed.), 451, n.
+1 (b).
+
+266/2 Repromittatur, but cf. pro servitio tuo vel pro homagio,
+Fleta, II. c. 60, Section 25.
+
+267/1 Y.B. 29 Ed. III. 25, 26. But cf. 48 Ed. III. 3, pl. 6.
+
+267/2 19 R. II., Fitzh. Abr. Dett, pl. 166.
+
+267/3 Y.B. 12 Hen. IV. 17, pl. 13, ad fin.
+
+267/4 Y.B. 9 Hen. V. 14, pl. 23.
+
+267/5 (Cf. 13 Ed. II. 403; 17 Ed. IIL 48, pl. 14; 29 Ed. III. 25,
+26.) 41 Ed. III. 7, pl. 15; 46 Ed. III. 6, pl. 16; Fitzh. Abr.
+Dett, pl. 166.
+
+267/6 Y.B. 3 Hen, VI. 36, pl. 33.
+
+268/1 Y.B. 37 Hen. VI. 8, pl. 18.
+
+268/2 E. g., Rolfe in Y.B. 3 Hen. VI. 36, pl. 23.
+
+269/1 Y.B. 37 Hen. VI. 8, pl. 18. Cf. Bro. Feoffements al Uses,
+pl. 54; Plowden, 301.
+
+269/2 Y.B. 15 Ed. IV. 32, pl. 14; (S.C., 14 Ed. IV. 6, pl. 3;) 17
+Ed. 4, pl. 4.
+
+269/3 Cf. Y.B. 37 Hen. VI. 8, pl. 18; 17 Ed. IV. 4, 5; Plowden,
+305, 306.
+
+269/4 Y.B. 3 Hen. VI. 36, pl. 33.
+
+269/5 Y.B. 37 Hen. VI. 13.
+
+269/6 As to requirement of certain sum, cf. Y.B. 12 Ed. II. 375;
+Fleta, II. c. 60, Section 24.
+
+270/1 Y.B. 29 Ed. III. 25, 26; 40 Ed. III. 24, pl. 27; 43 Ed.
+II1. 2, pl. 5.
+
+270/2 Y.B. 43 Ed. III. 2, pl. 5; 46 Ed. III. 25, pl. 10; 50 Ed.
+III. 5, pl. 11.
+
+270/3 Cf. Glanv., Lib. X. c. 8; Fleta, II. c. 60, Section 25.
+
+270/4 Y.B. 35 Ed. I. 454; 12 Ed. II. 375.
+
+272/1 Ducange, "Sigilium"; Ingulph. 901.
+
+272/2 Big. Pl. Ang. Norm. 177.
+
+272/3 Big. Pl. Ant. Norm. 177; Bract., fol. 100 b, Section 9,
+"scriptura." But cf. Y.B. 30 Ed. I. 158; Fleta, II. c. 60,
+Section 25.
+
+272/4 Y.B. 33 Ed. I. 354, 356; 35 Ed. I. 455, top; 41 Ed. III. 7,
+pl. 15; 44 Ed. III. 21, pl. 23. Cf. 39 Hen. VI. 34, pl. 46.
+
+272/5 Y.B. 7 Ed. I. 242. Cf. 35 Ed. I. 452.
+
+272/6 Cf. Bract., fol. 100 b, Section 9.
+
+272/7 Cf. Glanv., Lib. X. c. 12; Dugdale, Antiq. Warwic. 673,
+cited Ducange, "Sigillum"; Bract., fol. 396 b, Section 3; I Britt.
+(Nich.)163, Section 17; Abbrev. Plac. 8 Joh., Berk. rot. 4, pp.
+55, 56; ib. 19 Ed. I., Norf. & Surf. rot. 7, p. 284; ib. Index
+"Sigillum."
+
+272/8 Y.B. 30 Ed. I. 158; Fleta, II. c. 60, Section 25, p. 130.
+
+273/1 45 Ed. III. 24, pl. 30.
+
+273/2 Bract., fol. 100 b, Section 9.
+
+275/1 Cf. 5 Co. Rep. 13 b, 14 a, with 1 Roll. Rep. 126, 128; Y.B.
+43 Ed. III 30, pl. 15.
+
+275/2 Y.B. 46 Ed. III. 19, pl. 19; S.C. Bro. Acc. sur le Case,
+pl. 22.
+
+275/3 Y.B. 22 Ass., pl. 4i, fol. 94.
+
+276/1 Y.B. 43 Ed. III. 33, pl. 38.
+
+277/1 Y.B. 11 Hen. IV. 33, pl. 60.
+
+277/2 Y.B. 3 Hen. VI. 36, pl. 33.
+
+277/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60. Cf. 3
+Hen. VI. 36, 83.
+
+279/1 Cf. 19 Hen. VI. 49, pl. 5 ad fin., Newton, C. J.
+
+280/1 Cf. Y.B. 48 Ed. III. 6, pl. 11.
+
+280/2 Cases supra; Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33. Cf.
+3 Hen. VI. 36, pl. 33; 20 Hen. VI. 34, pl. 4; 2 Hen. VII. 11, pl.
+9.
+
+281/1 Y.B. 48 Ed. III. 6, pl. 11. Cf. Fitzh. Abr. Acc. sur le
+case, pl. 37, 11 R. II; 14 Hen. VI. 18. But cf. 43 Ed. III. 33,
+pl. 38.
+
+282/1 Cf. Candish's reasons for allowing wager of law with Y.B.
+32 & 33 Ed. I., Preface, p. xxxvi., citing the old rules of
+pleading printed at the end of the tract entitled, Modus tenendi
+unum Hundredum sire Curiam de Recordo, in Rastell's Law Tracts,
+p. 410, E, F, G.
+
+282/2 Y.B. 3 Hen. VI. 36, pl. 33.
+
+282/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60; 3 Hen.
+VI. 36, pl. 33.
+
+282/4 3 Hen. VI. 36, pl. 33.
+
+283/1 Y.B. 14 Hen. VI. 18, pl. 58.
+
+283/2 Ibid. Cf. 48 Ed. III 6, pl. 11.
+
+283/3 Y.B. 19 Hen. VI. 49, pl. 5. See, further, Y.B. 20 Hen. VI.
+25, pl. 11.
+
+284/1 Cf. Y.B. 3 Hen. VI. 36, pl. 33.
+
+284/2 Y.B. 2 Hen. VII. 11, pl. 9. Cf. 20 Hen. VI. 34, pl. 4.
+
+284/3 Cf. Y.B. 14 Hen. VI. 18, pl. 58; 21 Hen. VII. 41, pl. 66,
+Fineux, C. J.
+
+284/4 Keilway, 160, pl. 2 (2 Hen. VIII.); Powtuary v. Walton, 1
+Roll. Abr. 10, pl. 5 (39 Eliz.); Coggs v. Bernard, 2 Ld. Raym.
+909 (2 Anne, A.D. 1703). Supra, p. 195.
+
+285/1 Sands v. Trevilian, Cro. Car. 193, 194 (Mich. 4 Car. I.,
+A.D. 1629).
+
+285/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24,
+25, pl. 3; Sidenham v. Worlington, 2 Leon. 224, A.D. 1585.
+
+285/3 Y.B. 21 Hen. VII. 30, pl. 5; ib. 41, pl. 66.
+
+285/4 Y.B. 3 Hen. VI. 36, pl. 33.
+
+286/1 Sharington v. Strotton, Plowden, 298 (Mich. 7 & 8 Eliz.);
+ib. 309, note on "the civil law."
+
+286/2 Hunt v. Bate, 3 Dyer, 272 a (10 Eliz., A.D. 1568).
+
+286/3 See Lecture VIII. Mr. Langdell, Contracts, Sections 92, 94,
+suggests the ingenious explanation for this doctrine, that it was
+then held that no promise could be implied in fact from the
+request. There may be evidence which I do not know, but the case
+cited (Bosden v. Thinne, Yelv. 40) for this statement was not
+decided until A.D. 1603, while the implication of Hunt v. Bate,
+supra, which was the authority followed by the cases to be
+explained, is all the other way.
+
+286/4 Sidenham v. Worlington, 2 Leon. 224, A.D. 1585.
+
+287/1 Read v. Baxter, 3 Dyer, 272 b, n. (26 & 27 Eliz.). Cf.
+Richards and Bartlet's Case, 1 Leon. 19 (26 Eliz.).
+
+287/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24,
+25, pl. 3; 3 Dyer, 272, n.
+
+287/3 Marsh v. Rainsford, 3 Dyer, 272 b, n.; S.C., 2 Leon. 111,
+and Cro. Eliz. 59, sub. nom. Marsh v. Kavenford.
+
+287/4 Smith and Smith's Case, 3 Leon. 88, A.D. 1583; Riches and
+Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, Yelv. 128, A.D.
+1608.
+
+288/1 Supra, p. 195. Lord Coke's caution not to rely on the
+abridgments is very necessary to the proper study of the history
+of consideration. The abridgments apply the doctrine to cases
+which make no mention of it, and which were decided before it was
+ever heard of.
+
+290/1 Y.B. 46 Ed. III. 19, pl. 19; 19 Hen. VI. 49, pl. 5;
+Keilway, 160, pl. 2; Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5;
+Coggs v. Bernaard, 2 Ld. Raym. 909.
+
+290/2 Riches and Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile,
+Yelv. 128.
+
+291/1 Bainbridge v. Firmstone, 8 Ad. & El. 743, A.D. 1838.
+
+291/2 Wilkinson v. Oliveira, 1 Bing. N. C. 490, A.D. 1835; Haigh
+v. Brooks, 10 Ad. & El. 309; lb. 323; Hart v. Miles, 4 C.B. N.S.
+371, A.D. 1858.
+
+291/3 Wheatley v. Low, Cro. Jac. 668, A.D. 1623. Cf. Byne and
+Playne's Case, 1 Leon. 220, 221 (32 & 33 Eliz.).
+
+291/4 Wilkinson v. Oliveira, 1 Bing. N. C. 490; Haigh v. Brooks,
+10 Ad. & El. 309; Hart v. Miles, 4 C.B. N.S. 371; 6 Am. Law Rev.
+47, Oct. 1871.
+
+292/1 Supra, pp. 196, 197. See also Lecture VII.
+
+292/2 Byles, J., in Shadwell v. Shadwell, 30 L. J. C.P. 145, 149.
+
+292/3 Shadwell v. Shadwell, ubi supra; Burr v. Wilcox, 13 Allen,
+269, 272, 273.
+
+292/4 Thomas v. Thomas, 2 Q.B.851.
+
+293/1 Price v. Jenkins, 5 Ch. D. 619. Cf. Grabbe v. Moxey, 1 W.
+R. 226; Thomas v. Thomas, 2 Q.B.851; Monahan, Method of Law, 141
+et seq.
+
+294/1 Ellis v. Clark, 110 Mass. 389.
+
+294/2 Fitch v. Snedaker, 38 N. Y. 248, criticising Williaws v.
+Carwardine, 4 Barn. & Ad. 621, where, however, it does not appear
+that the plaintiff did not know of the offer of a reward, but
+merely that the jury found that she was in fact actuated by other
+motives, a finding wholly beside the mark.
+
+296/1 Y.B. 29 Ed. III. 25, 26.
+
+296/2 19 R. II., Fitzh. Abr. Dett, pl. 166.
+
+296/3 Hunt v. Bate, Dyer, 272, A.D. 1568.
+
+297/1 See Barker v. Halifax, Cro. Eliz. 741; S.C. 3 Dyer, 272 a,
+n. 32.
+
+297/2 Sidenham v. Worlington, 2 Leonard, 224; Bosden v. Thinne,
+Yelv. 40; Lampleigh v. Brathwait, Hobart, 105; Langdell, Cas. on
+Contr. (2d ed.), ch. 2, Section 11, Summary, Sections 90 et seq.
+See above, Lecture VII. p. 286.
+
+297/3 Pollock, Contr. (lst ed.), p. 6.
+
+298/1 Canham v. Barry, 15 C.B. 597, 619; Jones v. How, 9 C.B. 1,
+9; Com. Dig. Condition, D. 2; I Roll. Abr. 420 (D), pl. 1; Y.B.
+22 Ed. IV. 26, pl. 6.
+
+301/1 Gee v. Lancashire & Yorkshire Railway Co., 6 H. & N. 211,
+218, Bramwell, B. Cf. Hydraulic Engineering Co. v. McHaffie, 4
+Q.B.D. 670, 674, 676.
+
+301/2 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P.
+499, 509, Willes, J.; Horne v. Midland Railway Co., L.R. 7 C.P.
+583, 591; S.C., L.R. 8 C.P. 131.
+
+302/1 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P.
+499, 509.
+
+304/1 Cheale v. Kenward, 3 DeG. & J. 27.
+
+304/2 Langdell, Contr., Sections 89, 28.
+
+305/1 Langdell, Contr., Section 57.
+
+305/2 Ibid., Sections 14, 15.
+
+306/1 But see Langdell, Contr., Sections 14, 15.
+
+309/1 Raffles v. Wichelhaus, 2 H. & C. 906. Cf. Kyle v. Kavanagh,
+103 Mass. 356, 357.
+
+309/2 Cf. Cocker v. Crompton, 1 B. & C. 489.
+
+310/1 Smith v. Hughes, L.R. 6 Q.B.597.
+
+310/2 See Gardner v. Lane, 12 Allen, 39; S.C. 9 Allen, 492, 98
+Mass. 517.
+
+311/1 Goddard v. Monitor Ins. Co., 108 Mass. 56.
+
+313/1 See Cundy v. Lindsay, 3 App. Cas. 459, 469. Cf. Reg. v.
+Middleton, L.R. 2 C.C. 38, 55 et seq., 62 et seq.; Reg. v.
+Davies, Dearsly, C.C. 640; Rex v. Mucklow, 1 Moody, O.C. 160;
+Reg. v. Jacobs, 12 Cox, 151.
+
+313/2 "Praesentia corporis tollit errorem nominis." Cf. Byles,
+J., in Way v. Hearne, 32 L. J. N.S.C.P. 34, 40. But cf. the
+conflicting opinions in Reg. v. Middleton, L.R. 2 C.C. 38, 45,
+57. It would seem that a proper name or other identification of
+an object or person as specific may have the same effect as an
+actual identification by the senses, because it refers to such an
+identification, although in a less direct way.
+
+316/1 Brown v. Foster, 113 Mass. 136.
+
+316/2 Leake, Dig. Contr. 13, 14, 637; Hunt v. Livermore, 5 Pick.
+395, 397; Langd. Contr. (2d ed.), Section 36.
+
+316/3 Leake, Dig. Contr. 638; Braunstein v. Accidental Death Ins.
+Co., 1 B. & S. 782.
+
+316/4 But cf. Langd. Contr. (2d ed.), Section 29.
+
+318/1 Langd. Contr. (2d ed.), Section 29.
+
+318/2 Bullen & Leake, Prec. of Plead. (3d ed.), 147, "Conditions
+Precedent."
+
+319/1 Cf. Cort v. Ambergate, Nottingham & Boston & Eastern
+Junction Railway Co., 17 Q.B.127.
+
+320/1 Goodman v. Pocock, 15 Q.B.576 (1850).
+
+325/1 Fisher v. Mellen, 103 Mass. 503.
+
+325/2 Supra, p. 136.
+
+327/1 Langd. Contr. (2d ed.), Section 33.
+
+328/1 See the explanation of Dimech v. Corlett, 12 Moo. P.C. 199,
+in Behn v. Burness, 3 B. & S. 751, 760.
+
+329/1 Behn v. Burness, 3 B. & S. 751.
+
+329/2 Langd. Contr. (2d ed.), Section 28, p. 1000.
+
+329/3 See Lecture VIII.
+
+330/1 Kennedy v. Panama, &c. Mail Co., L.R. 2 Q.B.580, 588; Lyon
+v. Bertram, 20 How. 149, 153. Cf. Windscheid, Pand., Section 76,
+nn. 6, 9.
+
+330/2 Windscheid, Pand., Section 76(4). See, generally, Ibid.,
+nn. 6,
+7; Section 78, pp. 206, 207; Section 82, pp. 216 et seq.
+
+331/1 Cr. Ihering, Geist d. Roem. Rechts, Section 48, III. p. 116
+(Fr. transl.).
+
+331/2 See, however, the language of Crompton, J. in S.C., I B. &
+S. 877. Cf. Kent, Comm. (12th ed.), 479, n. 1, A (c).
+
+331/3 Behn v. Burness, 3 B. & S. 751, 755, 756.
+
+334/1 Cf. Anglo-Egyptian Navigation Co. v. Rennie, L.R. 10 C.P.
+271.
+
+334/2 Ellen v. Topp, 6 Exch. 424.
+
+335/1 Contracts (2d Ed.), Section 106, and passim.
+
+336/1 Chanter v. Hopkins, 4 M. & W. 399, 404. Possibly Behn v.
+Burness, stated above, might have been dealt with in this way.
+The ship tendered was not a ship which had been in the port of
+Amsterdam at the date of the contract. It was therefore not such
+a ship as the contract called for.
+
+336/2 Heyworth v. Hutchinson, L.R. 2 Q.B.447, criticised in Benj.
+Sales (2d ed.), pp. 742 et seq.
+
+336/3 See Thomas v. Cadwallader, Willes, 496; Langd. Contr. (2d
+ed.), Sections 116, 140. This is put as a case of equivalence by
+Mr. Langdell (Contr., Section 116); but the above explanation is
+believed to be the true one. It will be noticed that this is hardly
+a true case of condition, but merely a limitation of the scope of
+the tenant's promise. So a covenant to serve as apprentice in a
+trade, which the other party covenants to teach, can only be
+performed if the other will teach, and must therefore be limited
+to that event. Cf. Ellen v. Topp, 6 Exch. 424.
+
+337/1 Langdell, Contracts (2d ed.), Section 127. Cf. Roberts v.
+Brett, 11 H. L. C. 337.
+
+339/1 Graves v. Legg, 9 Exch. 709. Cf. Lang. Contr. (2d ed.), Section
+33, p. 1004. Mr. Langdell says that a bought note, though part of
+a bilateral contract, is to be treated as unilateral, and that it
+may be presumed that the language of the contract relied on was
+that of a bought note, and thus a condition in favor of the
+defendant, who made it. I do not quite understand how this can be
+assumed when the declaration states a bilateral contract, and the
+question arose on demurrer to a plea, which also states that the
+plaintiff "was by the agreement bound to declare" the names. How
+remote the explanation is from the actual ground of decision will
+be seen.
+
+341/1 Recht des Besitzes, Section 11, p. 184, n. 1 (7th ed.),
+Eng. tr. 124, n. t.
+
+342/1 Inst. II. Section 157.
+
+342/2 "In suis heredibus evidentius apparet continuationem
+dominii eo rem perdueere, ut nulla videatur hereditas fuisse,
+quasi olim hi domini essent, qui etiam vivo patre quodammodo
+domini existimantur, unde etiam filius familias appellatur sicut
+pater familias, sola nota hae adiecta, per quam distinguitur
+genitor ab eo qui genitus sit. itaque post mortem patris non
+hereditatem percipere videntur, sed magis liberam bonorum
+administrationem consequuntur hac ex causa licet non sint heredes
+instituti, domini sunt: nec obstat, quod licet eos exheredare,
+quod et occidere licebat." D. 28.2. 11. Cf. Plato, Laws, [Greek
+characters]
+
+343/1 Laveleye, Propriety, 24, 202, 205, 211, n. 1, 232; Norton,
+L.C. Hindu Law of Inheritance, p. 193.
+
+343/2 D. 50. 16. 208.
+
+343/3 D. 41. 1. 34. Cf. D. 41. 3. 40; Bract., fol. 8 a, 44 a.
+
+343/4 D. 43. 24. 13, Section 5.
+
+344/1 Germania, c. 20.
+
+345/1 Littleton, Section 337; Co. Lit. 209, a, b; Y.B. 8 Ed. IV.
+5, 6,
+pl. 1; Keilway, 44 a (17 Hen. VII.); Lord North v. Butts, Dyer,
+139 b, 140 a, top; Overton v. Sydall, Popham, 120, 121; Boyer v.
+Rivet, 3 Bulstr. 317, 321; Bain v. Cooper, 1 Dowl. Pr. Cas. N. s.
+11, 14.
+
+345/2 Y.B. 48 Ed. III. 2, pl. 4.
+
+346/1 Vermoegensrechtlichen Klagen, 88, 89.
+
+346/2 Proc. de la Lex Salica, tr. Thevenin, p. 72 and n. 1.
+
+347/1 Ethelred, II. 9; Cnut, II. 73; Essays in Ang. Sax. Law, pp.
+221 et seq.
+
+347/2 1 Spence, Eq. 189, note, citing Hickes, Dissert. Epist., p.
+57.
+
+347/3 Glanv., Lib. VII. c. 2 (Beames, p. 150).
+
+347/4 Ibid., c. 8 (Beames, p. 168).
+
+347/5 Reg. Maj., Lib. II. c. 39.
+
+348/1 Fol. 61 a.
+
+348/2 Sachsensp., II. 60, Section 2, cited in Essays in Ang. Sax.
+Law, p. 221; Grand Cust. de Norm., c. 88.
+
+348/3 Britt., fol. 64 b (Nich. ed. 163); Fleta, Lib. II. c. 62,
+Section 10. Cf. Bract., fol. 37 b, Section 10.
+
+348/4 Bracton, fol. 61 a, b. "Item quaero an testator legare
+possit actiones suas? Et verum est quod non, de debitis quae in
+vita testatoris convicta non fuerunt nec recognita, sed hujusmodi
+actiones competunt haeredibus. Cum antera convicta sint et
+recognita, tune sunt quasi in bonis testatoris, et competunt
+executoribus in foro ecclesiastico. Si autem competant
+haeredibus, ut praedictum est, in foro seculari debent terminari,
+quia antequam communicantur et in foro debito, non pertinet ad
+executores, ut in foro ecclesiastico convincantur."
+
+349/1 Bracton, fol. 62a.
+
+349/2 Y.B. 20 & 21 Ed. I. 232; cf. ib. 312.
+
+349/3 Oates v. Frith, Hob. 130. Cf. Y.B. 5 Hen. VII. 18, pl. 12;
+Popham, J., in Overton v. Sydall, Poph. 120, 121 (E. 39 El.);
+Boyer v. Rivet, 3 Bulstr. 317, 319-322; Brooker's Case, Godb.
+376, 380 (P. 3 Car. I.).
+
+349/4 Bain v. Cooper, 1 Dowl. Pract. Cas. N. s. 11, 14. Cf. Y.B.
+14 Hen. VIII. pl. 5, at fol. 10.
+
+350/1 Bract., fol. 66 b, 76 b, and passim; Y.B. 20 Ed. I. 226,
+200; Littleton, Section 241. The same thing was said where there
+were several executors: "They are only in the place of one person."
+Y.B. 8 Ed. IV. 5,pl. 1.
+
+350/2 Comm. 385.
+
+350/3 Cf. Glanv., Lib. VII. c. 3; F. N. B. 21 L; Dyer, 4 b, 5 a.
+
+351/1 Cf. Bract., fol. 80 b.
+
+351/2 Charta Divis. Reg. Franc., Art. IX. & VIII. Cf. 3
+Laferriere, Hist. du Droit Francais, 408, 409.
+
+351/3 Glanv., Lib. IX. c. 1 (Beames, pp. 218, 220); Bract., fol.
+79 b.
+
+352/1 Brooker's Case, Godbolt, 376, 377, pl. 465.
+
+352/2 Dyer, 1 b. Cf. Bain v. Cooper, 1 Dowl. Pr. C. N. s. 11, 12.
+
+354/1 In the American Law Review for October, 1872, VII. 49, 50,
+I mentioned one or two indications of this fact. But I have since
+had the satisfaction of finding it worked out with such detail
+and learning in Ihering's Geist des Roemischen Rechts, Sections 10, 48,
+that I cannot do better than refer to that work, only adding that
+for my purposes it is not necessary to go so far as Ihering, and
+that he does not seem to have been led to the conclusions which
+it is my object to establish. See, further, Clark, Early Roman
+Law, 109, 110; Laferriere, Hist. du Droit Frang., I. 114 et seq.;
+D. 1.5. 4, Section 3; Gaii Inst. IV. Section 16; ib. II. Section
+69.
+
+356/1 Erbvertraege, I. 15 et seq.
+
+356/2 Hist. du Droit Franc., IV. 500.
+
+357/3 "Quantum dare voluerit aut totam furtunam eui voluerit dare
+. . . nec minus nec majus nisi quantum ei creditum est." Lex Sal.
+(Merkel), XLVI.
+
+357/4 Lex Sal. (Merkel), Cap. XLVI., De adfathamire; Sohm, Frank.
+Reichs- u. Gerichtsverfassung, 69.
+
+357/6 Beseler, Erbvertraege, I. 101, 102, 105.
+
+358/1 "Omnem facultatem suam. . . seu cuicunque libet de proximis
+vel extraneis, adoptare in hereditatem vel in adfatimi vel per
+scripturarum seriem seu per traditionem." L. Rib. Cap. L. (al.
+XLVIII.); cf. L. Thuring. XIII. So Capp. Rib. Section 7: "Qui
+filios non habuerit et aliurn quemlibet heredem facere sibi
+voluerit coram rege . . . traditionem faclat."
+
+357/2 Ed. Roth., cap. 174, 157; cf. lb. 369, 388; Liutpr. III. 16
+(al. 2), VI. 155 (al. 102). Cf. Beseler, Erbvertraege, I. 108 et
+seq., esp. 116-118. Compare the charter of A.D. 713, "Offero . . .
+S. P. ecclesia quam mihi heredem constitui." (Mem. di Lucca V.
+b. No. 4.) Troya III. No. 394, cited Heusler, Gewere, 45, 46. Cf.
+ib. 484. This, no doubt, was due to Roman influence, but it
+recalls what Sir Henry Maine quotes from Elphinstone's History of
+India (I. 126), as to sale by a member of one of the village
+communities: "The purchaser steps exactly into his place, and
+takes up all his obligations." Ancient Law, ch. 8, pp. 263, 264.
+
+357/3 (Merkel) Cap. LVIII., De chrenecruda. Sohm, Frank. R. u. G.
+Verf., 117.
+
+358/1 A.D. 679: "Sicuti tibi donata est ira tene et posteri tui."
+Kemble, Cod. Dip., I. 21, No. xvi. Uhtred, A.D. 767: "Quam is
+semper possideat et post se cui voluerit heredum relinquat." Ib.
+I. 144, cxvxi. ("Cuilibet heredi voluerit relinquat" is very
+common in the later charters; ib. V. 155, MLXXXIL; lb. VI. 1,
+MCCXVIIL; it). 31, MCCXXX.; lb. 38, MCCXXXIV.; and passim. This
+may be broader than cui voluerit herealum.) Offa, A.D. 779: "Ut
+se viverite habe . . . deat. et post se suoe propinquitatis
+homini cui ipse vo . . . possidendum libera utens potestate
+relinquat." Ib. I. 164, 165, CXXXVII. Aethilbald, A.D. 736: "Ita
+ut quamdiu vixerit potestatem habeat tenendi ac possidendi
+cuicumque voluerit vel eo vivo vel certe post obitum suum
+relinquendi." Ib. I. 96, LXXX.; cf. ib. V. 53, MXIV. Cuthred of
+Kent, A.D. 805: "Cuicumque hominum voluerit in aeternam
+libertatem derelinquat." Ib. I. 232, CXC. "Ut habeat libertatem
+commutandi vel donandi in vita sua et post ejus obiturn teneat
+facultatem relinquendi cuicumque volueris." Ib. I. 233, 234,
+CXCI.; cf. ib. V. 70, MXXXI. Wiglaf of Mercia, Aug. 28, A.D. 831:
+"Seu vendendum ant commutandum i cuicumque ei herede placuerit
+dereliaquendum." Ib. I. 294, CCXXVII.
+
+359/1 "W. et heredibus suis, videlicet quos heredes
+constituerit." Memorials of Hexham, Surtees Soc. Pub., 1864, II.
+88.
+
+359/2 Cf. Y.B. 27 Ass., fol. 135, pl. 25. Under the Welsh laws
+the champion in a cause decided by combat acquired the rights of
+the next of kin, the next of kin being the proper champion. Lea,
+Superstition and Force (3d Ed.), 165. Cf. ib. 161, n. 1; ib. 17.
+
+361/1 D. 38. 8. 1, pr.
+
+361/2 "Cum is, qui ex edicto bonorum possessionem petiit, ficto
+se herede agit." Gaii Inst. IV. Section 34. Cf. Ulp. Fragm.
+XXVIII. Section
+12; D. 37. 1. 2. So the fidei commissarius, who was a praetorian
+successor (D. 41. 4. 2, Section 19; 10. 2. 24), "in similitudinem
+heredis consistit." Nov. 1. 1, Section 1. Cf. Just. Inst. 2. 24,
+pr.,  and then Gaius, II. Sections 251, 252.
+
+361/3 Gaii Inst. II. Sections 102 et seq. Cf. ib. Sections 252,
+35.
+
+361/4 Gaii Inst. IV Section 35: "Similiter et bonorum emptor
+ficto se herede agit." Cf. ib. Sections 144, 145. Keller, Roemische
+Civilprocess, Section 85, III. But cf. Scheurl, Lehrb. der Inst.,
+Section 218, p. 407 (6th ed.).
+
+361/5 Paulus in D. 50. 17. 128.
+
+362/1 "In re legata in accessione temporis quo testator possedit,
+legatarius quodammodo quasi heres est." D. 41. 3. 14, Section 1.
+
+362/2 D. 41.1.62; 43. 3. 1, Section 6; Gaii Inst. II. Section 97;
+Just. Inst. 2. 10, Section 11.
+
+363/1 "[Accessiones possessionum] plane tribuuntur his qui in
+locum aliorum succedunt sive ex contractu sive voluntate:
+heredibus enum et his, qui successorum loco habentur, datur
+accessio testatoris. Itaque si mihi vendideris servum utar
+accesssione tua." D. 44.3.14, Sections 1, 2.
+
+363/2 "Ab eo . . . in cujus locum hereditate vel emptione aliove
+quo iure successi." D. 43. 19. 3, Section 2.
+
+363/3 D. 50. 4. 1, Section 4. Cf. Cic. de Off. 3. 19. 76; Gaii
+Inst. IV. Section 34.
+
+363/4 C. 2. 3. 21; C. 6. 16. 2; cf. D. 38. 8. 1, pr.
+
+364/1 "In locum successisse accipimus sive per universitatem sive
+in rem sit successum." D. 43. 3. 1, Section 13. Cf. D. 21.3.3,
+Section 1; D. 12.2.7&8;D. 39. 2. 24, Section 1.
+
+364/2 D. 41.2. 13, Sections 1, 11. Other cases put by Ulpian may
+stand on a different fiction. After the termination of a precarium,
+for instance, fingitur fundus nunquam fuisse possessus ab ipso
+detentore. Gothofred, note 14 (Elz. ed.). But cf. Puchta, in
+Weiske, R. L., art. Besitz, p. 50, and D. 41.2.13, Section7.
+
+364/3 Inst. 2. 6, Sections 12, 13. Cf. D. 44. 3. 9. See, for a
+fuller statement, 11 Am. Law Rev. 644, 645.
+
+365/1 Recht des Besitzes, Section11 (7th ed.), p. 184, n. 1, Eng.
+tr. 124, n. t.
+
+365/2 Paulus, D. 8. 6. 18, Section 1. This seems to be written of
+a rural servitude (aqua) which was lost by mere disuse, without
+adverse user by the servient owner.
+
+365/3 Hermogenianus, D. 21. 3. 3; Exe. rei jud., D. 44. 2. 9,
+Section 2; ib. 28; ib. 11, Sections 3, 9; D. 10. 2. 25, Section 8;
+D. 46. 8. 16, Section I; Keller, Roem. Civilproc., Section 73.
+Cf. Bracton, fol. 24 b, Section 1 ad fin.
+
+365/4 "Recte a me via uti prohibetur et interdictum ei inutile
+est, quia a me videtur vi vel clam vel precario possidere, qui ab
+auctore meo vitiose possidet. nam et Pedius scribit, si vi aut
+clam aut precario ab co sit usus, in cuius locum hereditate vel
+emptione aliove quo lure suceessi, idem esse dicendum: cum enim
+successerit quis in locum eorum, aequum non est nos noceri hoc,
+quod adversus eum non nocuit, in cuius locum successimus." D. 43.
+19. 3, Section 2. The variation actore, argued for by Savigny, is
+condemned by Mommsen, in his edition of the Digest, --it seems
+rightly.
+
+365/5 D. 12. 2. 7 & 8.
+
+366/1 Ulpian, D. 39. 2. 24, Section1. Cf. D. 8. 5.7; D. 39. 2.
+17, Section 3,
+n. 79 (Elzevir ed.); Paulus, D. 2. 14. 17, Section 5.
+
+366/2 "Cum quis in alii locum successerit non est aequum ei
+nocere hoc, quod adversus eum non nocuit, in cujus locum
+successit. Plerumque emptoris eadem causa esse debet circa
+petendum ac defendendum, quae fuit auctoris." Ulp. D. 50. 17.
+156, Sections 2, 3. "Qui in ius dominiumve alterius succedit,
+iure ejus uti debet." Paulus, D. 50. 17. 177. "Non debeo melioris
+condieionis esse, quam auctor meus, a quo ius in me transit."
+Paulus, D. 50. 17. 175, Section 1. "Quod ipsis qui contraxerunt
+obstat, et successoribus eoturn obstabit." Ulp. D. 50. 17. 143.
+"Nemo plus iuris ad alium transferre potest, quam ipse haberet."
+Ulp. D. 50. 17. 54; Bract., fol. 31 b. Cf. Decret. Greg. Lib. II.
+Tit. XIII. c. 18, De rest. spoliat.: "Cum spoliatori quasi succedat
+in vitium." Bruns, R. d. Besitzes, p. 179. Windscheid, Pand.,
+Section 162 a, n. 10.
+
+366/3 "Ne vitiosae quidam possessioni ulla potest accedere: sed
+nec vitiosa ei, quse vitiosa non est." D. 41. 2. 13, Section 13.
+
+367/1 Hill v. Ellard, 3 Salk. 279. Cf. Withers v. Iseham, Dyer,
+70 a, 70 b, 71 a; Gateward's Case, 6 Co. Rep. 59b, 60b; Y.B. 20 &
+21 Ed. I 426; 205; 12 Hen. IV. 7.
+
+368/1 Doe v. Barnard, 13 Q.B.945, 952, 953, per Cur., Patteson,
+J. Cf. Asher v. Whitlock, L.R. 1 Q.B.1, 3, 6, 7.
+
+368/2 See, further, Sawyer v. Kendall, 10 Cush. 241; 2 Bl. Comm.
+263 et seq.; 3 Ch. Pl. 1119 (6th Am. ed.); 3 Kent, 444, 445;
+Angell, Limitations, ch. 31, Section 413. Of course if a right
+had already been acquired before the disseisin different
+considerations would apply. If the right claimed is one of those
+which are regarded as incident to land, as explained in the
+following Lecture, the disseisor will have it. Jenk. Cent. 12,
+First Cent. Case 21.
+
+370/1 Ared v. Watkin, Cro. Eliz. 637; S.C., ib. 651. Cf. Y.B. 5
+Hen. VII. 18, pl. 12; Dyer, 4 b, n. (4).
+
+370/2 Roe v. Hayley, 12 East, 464, 470 (1810).
+
+371/1 Boyer v. Rivet, 3 Bulstr. 317, 321.
+
+372/1 Essays in A. S. Law, 219.
+
+372/2 "Per medium," Bracton, fol. 37b, Section10 ad fin.
+
+374/1 Bract., fol. 17 b. Cf. Fleta, III. c. 14, Section 6.
+
+374/2 See, further, Middlemore v. Goodale, Cro. Car. 503, stated
+infra, p. 379.
+
+374/3 See also Bract., fol. 380 b, 381. "Et quod de haeredibus
+dicitur, idem dici poterit de assignatis .... Et quod assignatis
+fieri debet warrantia per modum donationis: probatur in itinere
+W. de Ralegh in Com. Warr. circa finem rotuli, et hoc maxime, si
+primus dominus capitalis, et primus feoffator, ceperit homagium
+et servitium assignati." Cf. Fleta, VI. Section 6; Moore, 93, pl.
+230; Sheph. Touchst. 199, 200. As to the reason which led to the
+mention of assigns, cf. Bract., fol. 20 b, Section 1; 1 Britt.
+(Nich.), 223, 312.
+
+375/1 I do not stop to inquire whether this was due to the
+statute of Quia Emptores, by which the assign was made to hold
+directly of the first grantor, or whether some other explanation
+must be found. Cf. Bract., fol. 37 b; c. 14, Sections 6, 11; VI.
+c. 28, Section 4; 1 Britton (Nich.), 256, [100 b].
+
+375/2 Fleta, III. c. 14, Section 6, fol. 197; 1 Britton (Nich.),
+223, 233, 244, 255, 312; Co. Lit. 384 b; Y.B. 20 Ed. I. 232; Abbr.
+Placit., fol. 308, 2d col., Dunelm, rot. 43; Y.B. 14 Hen. IV. 5, 6.
+
+377/1 Fol. 67 a; cf. 54 a.
+
+377/2 Fol. 381; supra, p. 874, n. 3.
+
+378/1 Cf. Pincombe v. Rudge, Hobart, 3; Bro. Warrantia Carte, pl.
+8; S.C., Y.B. 2 Hen. IV. 14, pl. 5.
+
+378/2 Y.B. 50 Ed. III. 12b & 13.
+
+378/3 Y.B. 42 Ed. III. 3, pl. 14, per Belknap, arguendo.
+
+378/4 Noke v. Awder, Cro. Eliz. 373; S.C., ib. 436. Cf. Lewis v.
+Campbell, 8 Taunt. 715; S.C., 3 J. B. Moore, 35.
+
+379/1 Middlemore v. Goodale, Cro. Car. 503; S.C., ib. 505, Sir
+William Jones, 406.
+
+379/2 Harper v. Bird, T. Jones, 102 (Pasch. 30 Car. II.). These
+cases show an order of development parallel to the history of the
+assignment of other contracts not negotiable.
+
+380/1 Andrew v. Pearce, 4 Bos. & Pul. 158 (1805).
+
+383/1 Austin, Jurisprudence, II. p. 842 (3d ed.).
+
+383/2 "Quoniam non personae, sed praedia deberent, neque adquiri
+libertas neque remitti servitus per partem poterit." D. 8. 3. 34,
+pr.
+
+383/3 "Qui fundum alienum bona fide emit, itinere quod ei fundo
+debetur usus est: retinetur id ius itineris: atque etiam, si
+precario aut vi deiecto domino possidet: fundus enim qualiter se
+habens ita, cum in suo habitu possessus est, ius non deperit,
+neque refert, iuste nec ne possideat qui talem eum possidet." D.
+8. 6. 12.
+
+383/4 Elzevir ed., n. 51, ad loc. cit.; Cicero de L. Agr. 3. 2. 9.
+
+383/5 D. 50. 16, 86. Cf. Ulpian, D. 41. 1. 20, Section 1; D. 8.
+3. 23, Section 2.
+
+383/6 Inst. 2. 3, Section 1.
+
+384/1 D. 8. 1. 14, pr. Cf. Elzevir ed., n. 58, "Et sic jura . . .
+accessiones ease possunt corporum."
+
+384/2 "Cum fundus fundo servit." D. 8. 4. 12. Cf. D. 8. 5. 20,
+Section 1; D. 41. 1. 2O, Section 1.
+
+384/3 Jurisprudence, II. p. 847 (3d ed.).
+
+384/4 Cf. Windscheid, Pand., Section 57, n. 10 (4th ed.), p. 150.
+
+385/1 Fol. 10b, Section 3.
+
+385/2 Fol. 220b, Section 1.
+
+386/1 Fol. 221.
+
+386/2 Fol. 219a, b.
+
+386/3 Fol. 102a, b.
+
+386/4 Fol. 226 b, Section 13. All these passages assume that a
+right has been acquired and inheres in the land.
+
+387/1 Fol. 53 a; cf. 59 b, ad fin., 242 b.
+
+387/2 "Nihil praescribitur nisi quod possidetur," cited from Hale
+de Jur. Maris, p. 32, in Blundell v. Catterall, 5 B. & Ald. 268,
+277.
+
+388/1 Bract., fol. 46b; cf. 17b, 18, 47 b, 48.
+
+388/2 Fol. 81, 81 b, 79 b, 80 b.
+
+388/3 Fol. 24 b, 26, 35 b, 86, 208 b, &c. Cf. F. N. B. 123, E;
+Laveleye, Propriete, 67, 68, 116.
+
+388/4 Abbr. Plac. 110; rot. 22, Devon. (Hen. III.}.
+
+388/5 Stockwell v. Hunter, 11 Met. (Mass.) 448.
+
+389/1 Keilway, 130 b, pl. 104.
+
+389/2 Keilway, 113 a, pl. 45; Dyer, 2b.
+
+389/3 Keilway, 113a, pl. 45. Cf. Y.B. 33-35 Ed. I. 70; 45 Ed.
+III. 11, 12.
+
+389/4 Litt. Section 589.
+
+389/5 Keilway, 2 a, pl. 2 ad fin. (12 Hen. VII.). But cf. Y.B. 6
+Hen. VII. 14, pl. 2 ad fin.
+
+389/6 4 Laferriere, Hist. du Droit. Franc. 442; Bracton, fol. 53a.
+
+390/1 Cf. Co. Lit. 322 b, et seq.; Y.B. 6 Hen. VII. 14, pl. 2 ad
+fin.
+
+390/2 Daintry v. Brocklehurst, 3 Exch. 207.
+
+390/3 Y.B. 5 Hen. VII. 18, pl. 12.
+
+391/1 Y.B. 9 Hen. VI. 16, pl. 7.
+
+391/2 Y.B. 14 Hen. VI. 26, pl. 77.
+
+391/3 Y.B. 5 Hen. VII. 18, pl. 12.
+
+391/4 Cf. Theloall, Dig. I. c. 21, pl. 9.
+
+391/5 Buskin v. Edmunds, Cro. Eliz. 636.
+
+391/6 Harper v. Bird, T. Jones, 102 (30 Car. II.).
+
+391/7 Bolles v. Nyseham, Dyer, 254 b; Porter v. Swetnam, Style,
+406; S.C., ib. 431.
+
+391/8 3 Bl. Comm. 231, 232.
+
+392/1 Yielding v. Fay, Cro. Eliz. 569.
+
+392/2 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Prior of
+Woburn's Case, 22 Hen. VI. 46, pl. 36; Williams's Case, 5 Co.
+Rep. 72 b, 73 a; Slipper v. Mason, Nelson's Lutwyche, 43, 45
+(top).
+
+392/3 F. N. B. 127; Nowel v. Smith, Cro. Eliz. 709; Star v.
+Rookesby, 1 Salk. 335, 336; Lawrence v. Jenkins, L.R. 8 Q.B.274.
+
+392/4 Dyer, 24 a, pl. 149; F. N. B. 180 N.
+
+393/1 F. N. B. 128 D, E; Co. Lit. 96 b. It is assumed that, when
+an obligation is spoken of as falling upon the land, it is
+understood to be only a figure of speech. Of course rights and
+obligations are confined to human beings.
+
+393/2 Keilway, 145 b, 146, pl. 15; Sir Henry Nevil's Case, Plowd.
+377, 381; Chudleigh's Case, 1 Co. Rep. 119 b, 122 b.
+
+393/3 F. N. B. 180 N.; Co. Lit. 385 a; Spencer's Case, 5 Co. Rep.
+16 a, 17 b; Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Keilway,
+145 b, 146, pl. 15; Comyns's Digest, Covenant (B, 3).
+
+394/1 Holms v. Seller, 3 Lev. 305; Rowbotham v. Wilson, 8 H. L.
+C. 348; Bronson v. Coffin, 108 Mass. 175, 180. Cf. Bro. Covenant,
+pl. 2.
+
+394/2 Y.B. 21 Ed. III. 2, pl. 5; F. N. B. 180 N.
+
+394/3 The action is case in the Prior of Woburn's Case, Y.B. 22
+Hen. VI. 46, pl. 36. In F. N. B. 128 E, n. (a), it is said that a
+curia claudenda only lay upon a prescriptive right, and that if
+the duty to fence was by indenture the plaintiff was put to his
+writ of covenant. But see below, pp. 396, 400.
+
+394/4 Y.B. 32 & 33 Ed. I. 430.
+
+395/1 Y.B. 20 Ed. I. 360.
+
+395/2 Y.B. 32 & 33 Ed. I. 516.
+
+395/3 "Quia res cum homine [obviously a misprint for onere]
+transit ad  quemcunque." Fol. 382, 382 b.
+
+395/4 Lib. VI. c. 23, Section 17.
+
+395/5 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14.
+
+395/6 Sugd. V. & P. (14th ed.), 587; Rawle, Covenants for Title
+(4th ed.), p. 314. Cf. Vyvyan v. Arthur, 1 B. & C. 410; Sharp v.
+Waterhouse, 7 El. & Bl. 816, 823.
+
+396/1 Co. Lit. 385 a.
+
+396/2 Cf. Finchden as to rent in Y. B, 45 Ed. III. 11, 12.
+
+396/3 Cf. Y.B. 50 Ed. III. 12, 13, pl. 2.
+
+397/1 Covenant, pl. 17.
+
+397/2 There is a colon here in both editions of the Year Books,
+marking the beginning of a new argument.
+
+397/3 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14.
+
+398/1 Bro. Covenant, pl. 5. Cf. Spencer's Case, 5 Co. Rep. 16 a,
+17 b, 18 a.
+
+398/2 Horne's Case, Y.B. 2 Hen. IV. 6, pl. 25.
+
+399/1 "Quod conceditur." Cf. Spencer's Case, 5 Co. Rep. 16 a, 18
+a.
+
+399/2 It was quite possible that two liabilities should exist
+side by side. Bro. Covenant, pl. 32; Brett v. Cumberland, Cro.
+Jac. 521, 523.
+
+399/3 1 Co. Rep. 122 b; S.C., sub nom. Dillon v. Fraine, Popham,
+70, 71.
+
+400/1 Essays in Ang. Sax. Law, 248.
+
+400/2 Y.B. 22 Ed. I. 494, 496.
+
+400/3 Y.B. 4 Ed. III. 57, pl. 71; S.C., 7 Ed. III. 65, pl. 67.
+
+401/1 Bract., fol. 17 b, 37 b; Fleta, III. c. 14, Section 6;
+1 Britton (Nich.), 223, 233, 244, 255, 312; Abbrev. Plac.
+p. 308, col 2, Dunelm, rot. 43 (33 I.); Y. B, 20 Ed. I. 232;
+Co. Lit. 384 b.
+
+401/2 Hyde v. Dean of Windsor, Cro. Eliz. 552.
+
+401/3 Spencer's Case, 5 Co. Rep. 16 a. Cf. Minshill v. Oakes, 2
+H. & N. 793, 807.
+
+402/1 Hyde v. Dean of Windsor, Cro. Eliz. 552, 553; S.C., ib.
+457. Cf. Bally v. Wells, 3 Wilson, 25, 29.
+
+402/2 Dean of Windsor's Case, 5 Co. Rep. 24 a; S.C., Moore, 399.
+Cf. Bro. Covenant, pl. 32. Cf. further, Conan v. Kemise, W.
+Jones, 245 (7 Car. I.).
+
+403/1 F. N. B. 181 N; Sir Henry Nevil's Case, Plowden, 377, 381.
+
+403/2 Ewre v. Strickland, Cro. Jac. 240. Cf. Brett v. Cumberland,
+1 Roll R. 359, 360 "al comen ley"; S.C., Cro. Jac. 399, 521.
+
+403/3 Cockson v. Cock, Cro. Jac. 125.
+
+403/4 Sale v. Kitchingham, 10 Hod. 158 (E. 12 Anne).
+
+403/5 Supra, pp. 396, 398, 400. Cf., however, Lord Wensleydale,
+in Rowbotham v. Wilson, 8 H. L. C. 348, 362, and see above, p.
+391, as to rents.
+
+404/1 4 Kent (12th ed.), 480, n. 1.
+
+404/2 It is used in a somewhat different sense is describing the
+relation between a tenant for life or years and a reversioner.
+Privity between them follows as an accidental consequence of
+their being as one tenant, and sustaining a single persona
+between them.
+
+406/1 Rowbotham v. Wilson, 8 H. L. C. 348, 362 (Lord
+Wensleydale).
+
+406/2 Harbidge v. Warwick, 3 Exch. 552, 556.
+
+406/3 Rowbotham v. Wilson, 8 El. & Bl. 123, 143, 144.
+
+404/4 5 Co. Rep. 16, a.
+
+407/1 Y.B. 8 Ed. IV. 5, 6, pl. 1; 22 Ed. IV. 6, pl. 18. Cf. 5 Ed.
+IV. 7, pl. 16.
+
+407/2 Cf. Keilway, 42 b, 46 b; 2 Bl. Comm. 329.
+
+408/1 Y.B. 14 Hen. VIII. 6, pl. 5. Cf. Chudleigh's Case, 1 Co.
+Rep. 120a, 122 b; S.C., nom. Dillon v. Fraine, Popham, 70-72.
+
+408/2 Lewin, Trusts, Ch. I. (7th ed.), pp. 16, 15.
+
+408/3 4 Inst. 85; Gilb. Uses (Sugd.), 429, n. (6); Lewin, Trusts
+(7th ed.), pp. 15, 228.
+
+408/4 Burgess v. Wheate, 1 Eden, 177, 203, 246.
+
+408/5 Lewin, Trusts, Introd. (7th ed.), p. 3.
+
+408/6 1 Rich. III. c. 1. Cf. Rex v. Holland, Aleyn, 14, Maynard's
+arg.; Bro. Feoffements al Uses, pl. 44; Gilb. Uses, 26* (Sugd.
+ed., 50).
+
+409/1 4th Inst. 85; S.C., Dyer, 869, pl. 50; Jenk. Cent. 6, c.
+30. Cf. Gilb. Uses, 198* (Sugd. ed. 399).
+
+409/2 Gilb. Uses, 35* (Sugd. ed. 70).
+
+409/3 Theloall's Dig., I. 16, pl. 1.
+
+
+
+
+
+
+
+End of Project Gutenberg's The Common Law, by Oliver Wendell Holmes, Jr.
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