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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/2449-h.zip b/2449-h.zip Binary files differnew file mode 100644 index 0000000..c3436e6 --- /dev/null +++ b/2449-h.zip diff --git a/2449-h/2449-h.htm b/2449-h/2449-h.htm new file mode 100644 index 0000000..d3d9779 --- /dev/null +++ b/2449-h/2449-h.htm @@ -0,0 +1,17385 @@ +<?xml version="1.0" encoding="us-ascii"?> + +<!DOCTYPE html + PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd" > + +<html xmlns="http://www.w3.org/1999/xhtml" lang="en"> + <head> + <title> + The Common Law, by Oliver Wendell Holmes, Jr. + </title> + <style type="text/css" xml:space="preserve"> + + body { margin:5%; background:#faebd0; text-align:justify} + P { text-indent: 1em; margin-top: .25em; margin-bottom: .25em; } + H1,H2,H3,H4,H5,H6 { text-align: center; margin-left: 15%; margin-right: 15%; } + hr { width: 50%; text-align: center;} + .foot { margin-left: 20%; margin-right: 20%; text-align: justify; text-indent: -3em; font-size: 90%; } + blockquote {font-size: 97%; font-style: italic; margin-left: 10%; margin-right: 10%;} + .mynote {background-color: #DDE; color: #000; padding: .5em; margin-left: 10%; margin-right: 10%; font-family: sans-serif; font-size: 95%;} + .toc { margin-left: 10%; margin-bottom: .75em;} + .toc2 { margin-left: 20%;} + div.fig { display:block; margin:0 auto; text-align:center; } + div.middle { margin-left: 20%; margin-right: 20%; text-align: justify; } + .figleft {float: left; margin-left: 0%; margin-right: 1%;} + .figright {float: right; margin-right: 0%; margin-left: 1%;} + .pagenum {display:inline; font-size: 70%; font-style:normal; + margin: 0; padding: 0; position: absolute; right: 1%; + text-align: right;} + pre { font-style: italic; font-size: 90%; margin-left: 10%;} + +</style> + </head> + <body> +<pre xml:space="preserve"> + +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: February 4, 2013 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE COMMON LAW *** + + + + +Produced by Stuart E. Thiel and David Widger + + + + + +</pre> + <div style="height: 8em;"> + <br /><br /><br /><br /><br /><br /><br /><br /> + </div> + <h1> + THE COMMON LAW + </h1> + <h2> + By Oliver Wendell Holmes, Jr. + </h2> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <div class="mynote"> + <big><b>CONVENTIONS</b></big> + <p> + Numbers in square brackets [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. To find a footnote click on the page number + just above the footnote i.e. [245]. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + </div> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <p class="toc"> + <big><b>CONTENTS</b></big> + </p> + <p> + <br /> + </p> + <p class="toc"> + <a href="#link2H_4_0001"> LECTURE I. — EARLY FORMS OF LIABILITY. + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0002"> LECTURE II. — THE CRIMINAL LAW. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0003"> LECTURE III. — TORTS.—TRESPASS AND + NEGLIGENCE. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0004"> LECTURE IV. — FRAUD, MALICE, AND INTENT.—THE + THEORY OF TORTS. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0005"> LECTURE V. — THE BAILEE AT COMMON LAW. + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0006"> LECTURE VI. — POSSESSION. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0007"> LECTURE VII. — CONTRACT.—I. HISTORY. + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0008"> LECTURE VIII. — CONTRACT. II. ELEMENTS. + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0009"> LECTURE IX. — CONTRACT.—III. VOID + AND VOIDABLE. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0010"> LECTURE X. — SUCCESSIONS AFTER DEATH. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0011"> LECTURE X. — SUCCESSIONS INTER VIVOS </a> + </p> + <p class="toc"> + <a href="#link2H_4_0012"> LECTURE XI. — SUCCESSIONS.—II. INTER + VIVOS. </a> + </p> + <p class="toc"> + <a href="#link2H_FOOT"> FOOTNOTES </a> + </p> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> <a name="link2H_4_0001" id="link2H_4_0001"> + <!-- H2 anchor --> </a> + </p> + <h2> + LECTURE I. — EARLY FORMS OF LIABILITY. + </h2> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + It is commonly known that the early forms of legal procedure were grounded + in vengeance. Modern writers <a href="#linknote-3" name="linknoteref-3" + id="linknoteref-3">[3]</a> 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. + </p> + <p> + 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 <a href="#linknote-4" name="linknoteref-4" id="linknoteref-4">[4]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-7" name="linknoteref-7" id="linknoteref-7">[7]</a> he puts + at risk,—a principle similar to that on which corporations have been + so largely created in America during the last fifty years. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-8" + name="linknoteref-8" id="linknoteref-8">[8]</a> 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/ + </p> + <p> + 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. + </p> + <p> + The Roman lawyers, not looking beyond their own <a href="#linknote-9" + name="linknoteref-9" id="linknoteref-9">[9]</a> 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. + </p> + <p> + 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 <a + href="#linknote-10" name="linknoteref-10" id="linknoteref-10">[10]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + But it may be asked how inanimate objects came to be <a href="#linknote-11" + name="linknoteref-11" id="linknoteref-11">[11]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-12" name="linknoteref-12" id="linknoteref-12">[12]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-13" name="linknoteref-13" + id="linknoteref-13">[13]</a> 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/ + </p> + <p> + 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 <a href="#linknote-14" + name="linknoteref-14" id="linknoteref-14">[14]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. <a + href="#linknote-15" name="linknoteref-15" id="linknoteref-15">[15]</a> 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. + </p> + <p> + 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 <a href="#linknote-16" name="linknoteref-16" id="linknoteref-16">[16]</a> + 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. + </p> + <p> + 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 <a + href="#linknote-17" name="linknoteref-17" id="linknoteref-17">[17]</a> 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/ + </p> + <p> + 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 <a + href="#linknote-18" name="linknoteref-18" id="linknoteref-18">[18]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) <a + href="#linknote-19" name="linknoteref-19" id="linknoteref-19">[19]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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, <a href="#linknote-20" name="linknoteref-20" + id="linknoteref-20">[20]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + "Gif ane wylde or head-strang horse, carries ane man <a href="#linknote-21" + name="linknoteref-21" id="linknoteref-21">[21]</a> 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. + </p> + <p> + "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. + </p> + <p> + "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/ + </p> + <p> + "The Forme and Maner of Baron Courts" continues as follows:— + </p> + <p> + "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/ + </p> + <p> + 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 <a href="#linknote-22" name="linknoteref-22" + id="linknoteref-22">[22]</a> are not,—between living and dead + things; but he will also see that no difficulty was felt in treating + animals as guilty. + </p> + <p> + 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 <a href="#linknote-23" + name="linknoteref-23" id="linknoteref-23">[23]</a> right of property can + exist, I am bound to take care that it does not stray into the land of my + neighbor." /1/ + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-24" name="linknoteref-24" id="linknoteref-24">[24]</a> + 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. + </p> + <p> + We will now follow the history of that branch of the primitive notion + which was least likely to survive,—the liability of inanimate + things. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-25" name="linknoteref-25" + id="linknoteref-25">[25]</a> 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. + </p> + <p> + 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 <a href="#linknote-26" + name="linknoteref-26" id="linknoteref-26">[26]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-27" name="linknoteref-27" id="linknoteref-27">[27]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-28" name="linknoteref-28" + id="linknoteref-28">[28]</a>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. + </p> + <p> + 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. + </p> + <p> + If we should say to an uneducated man today, "She did it and she ought to + pay for it," it may be doubted <a href="#linknote-29" name="linknoteref-29" + id="linknoteref-29">[29]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-30" + name="linknoteref-30" id="linknoteref-30">[30]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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, <a href="#linknote-31" + name="linknoteref-31" id="linknoteref-31">[31]</a> 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. + </p> + <p> + 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 <a href="#linknote-32" name="linknoteref-32" + id="linknoteref-32">[32]</a> 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. + </p> + <p> + 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 <a href="#linknote-33" + name="linknoteref-33" id="linknoteref-33">[33]</a> 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. + </p> + <p> + 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 <a href="#linknote-34" name="linknoteref-34" + id="linknoteref-34">[34]</a> 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. + </p> + <p> + 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 <a href="#linknote-35" + name="linknoteref-35" id="linknoteref-35">[35]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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, <a + href="#linknote-36" name="linknoteref-36" id="linknoteref-36">[36]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + <a href="#linknote-39" name="linknoteref-39" id="linknoteref-39">[39]</a> + <a name="link2H_4_0002" id="link2H_4_0002"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE II. — THE CRIMINAL LAW. + </h2> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-40" name="linknoteref-40" id="linknoteref-40">[40]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-41" + name="linknoteref-41" id="linknoteref-41">[41]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + It is objected that the preventive theory is immoral, because it overlooks + the ill-desert of wrong-doing, and furnishes <a href="#linknote-43" + name="linknoteref-43" id="linknoteref-43">[43]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + If this is a true account of the law as it stands, the law does + undoubtedly treat the individual as a means to an <a href="#linknote-47" + name="linknoteref-47" id="linknoteref-47">[47]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. <a href="#linknote-51" + name="linknoteref-51" id="linknoteref-51">[51]</a> 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. + </p> + <p> + 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. + </p> + <p> + The next step is to take up some crimes in detail, and to discover what + analysis will teach with regard to them. + </p> + <p> + 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:— + </p> + <p> + [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." + </p> + <p> + 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 <a href="#linknote-53" + name="linknoteref-53" id="linknoteref-53">[53]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-56" name="linknoteref-56" id="linknoteref-56">[56]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-57" name="linknoteref-57" + id="linknoteref-57">[57]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-58" name="linknoteref-58" + id="linknoteref-58">[58]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-59" name="linknoteref-59" + id="linknoteref-59">[59]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-60" + name="linknoteref-60" id="linknoteref-60">[60]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-62" name="linknoteref-62" + id="linknoteref-62">[62]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-63" + name="linknoteref-63" id="linknoteref-63">[63]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-64" name="linknoteref-64" + id="linknoteref-64">[64]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + If an act is done of which the natural and probable <a href="#linknote-66" + name="linknoteref-66" id="linknoteref-66">[66]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-67" name="linknoteref-67" id="linknoteref-67">[67]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-68" + name="linknoteref-68" id="linknoteref-68">[68]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-69" + name="linknoteref-69" id="linknoteref-69">[69]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-71" name="linknoteref-71" + id="linknoteref-71">[71]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-73" name="linknoteref-73" + id="linknoteref-73">[73]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-74" + name="linknoteref-74" id="linknoteref-74">[74]</a> 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. + </p> + <p> + 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 <a + href="#linknote-75" name="linknoteref-75" id="linknoteref-75">[75]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + The test of criminality in such cases is the degree of danger shown by + experience to attend that act under those circumstances. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + [77] + </p> + <p> + <a name="link2H_4_0003" id="link2H_4_0003"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE III. — TORTS.—TRESPASS AND NEGLIGENCE. + </h2> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + It might be hastily assumed that the action on the case <a + href="#linknote-81" name="linknoteref-81" id="linknoteref-81">[81]</a> 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. + </p> + <p> + 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. + </p> + <p> + The first is that of Austin, which is essentially the theory of a + criminalist. According to him, the characteristic <a href="#linknote-82" + name="linknoteref-82" id="linknoteref-82">[82]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-84" + name="linknoteref-84" id="linknoteref-84">[84]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-85" name="linknoteref-85" id="linknoteref-85">[85]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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." + </p> + <p> + "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, <a href="#linknote-87" + name="linknoteref-87" id="linknoteref-87">[87]</a> 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." + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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, <a + href="#linknote-88" name="linknoteref-88" id="linknoteref-88">[88]</a> + "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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-90" name="linknoteref-90" + id="linknoteref-90">[90]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-91" name="linknoteref-91" id="linknoteref-91">[91]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-92" name="linknoteref-92" id="linknoteref-92">[92]</a> 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. + </p> + <p> + 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? + </p> + <p> + 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 <a + href="#linknote-93" name="linknoteref-93" id="linknoteref-93">[93]</a> + 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/ + </p> + <p> + 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; <a href="#linknote-94" + name="linknoteref-94" id="linknoteref-94">[94]</a> 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." + </p> + <p> + 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. + </p> + <p> + 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 + <a href="#linknote-95" name="linknoteref-95" id="linknoteref-95">[95]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-97" name="linknoteref-97" id="linknoteref-97">[97]</a> + 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 <a href="#linknote-98" + name="linknoteref-98" id="linknoteref-98">[98]</a> a consequence which + could not have been foreseen, must bear it. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-99" + name="linknoteref-99" id="linknoteref-99">[99]</a> 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. + </p> + <p> + 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." + </p> + <p> + 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 <a href="#linknote-100" name="linknoteref-100" + id="linknoteref-100">[100]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-101" name="linknoteref-101" + id="linknoteref-101">[101]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-102" name="linknoteref-102" + id="linknoteref-102">[102]</a> 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. + </p> + <p> + 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 <a href="#linknote-103" + name="linknoteref-103" id="linknoteref-103">[103]</a> founded on the + opinion of the tribunal that the defendant ought to have acted otherwise, + or, in other words, that he was to blame. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-104" name="linknoteref-104" id="linknoteref-104">[104]</a> + 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. + </p> + <p> + 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 <a href="#linknote-105" + name="linknoteref-105" id="linknoteref-105">[105]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-106" + name="linknoteref-106" id="linknoteref-106">[106]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-107" name="linknoteref-107" + id="linknoteref-107">[107]</a> quoted, and there is a case in Vermont + which tends in the same direction. /1/ + </p> + <p> + 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/ + </p> + <p> + Some middle point must be found between the horns of this dilemma. + </p> + <p> + [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. + </p> + <p> + 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 <a + href="#linknote-109" name="linknoteref-109" id="linknoteref-109">[109]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-113" name="linknoteref-113" id="linknoteref-113">[113]</a> + 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. + </p> + <p> + 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." + </p> + <p> + 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 <a href="#linknote-114" name="linknoteref-114" + id="linknoteref-114">[114]</a> 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. + </p> + <p> + 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 <a href="#linknote-115" + name="linknoteref-115" id="linknoteref-115">[115]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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, <a href="#linknote-116" + name="linknoteref-116" id="linknoteref-116">[116]</a> 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/ + </p> + <p> + 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 <a href="#linknote-117" name="linknoteref-117" + id="linknoteref-117">[117]</a> 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-118" name="linknoteref-118" id="linknoteref-118">[118]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-119" name="linknoteref-119" + id="linknoteref-119">[119]</a> 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. + </p> + <p> + 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." + </p> + <p> + <a href="#linknote-120" name="linknoteref-120" id="linknoteref-120">[120]</a> + 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. + </p> + <p> + 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 <a href="#linknote-121" + name="linknoteref-121" id="linknoteref-121">[121]</a> 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. + </p> + <p> + 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 <a href="#linknote-122" name="linknoteref-122" + id="linknoteref-122">[122]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-123" name="linknoteref-123" + id="linknoteref-123">[123]</a> to explain the relative functions of court + and jury with regard to the latter. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-124" name="linknoteref-124" id="linknoteref-124">[124]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-125" + name="linknoteref-125" id="linknoteref-125">[125]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-127" + name="linknoteref-127" id="linknoteref-127">[127]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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, <a href="#linknote-128" + name="linknoteref-128" id="linknoteref-128">[128]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + I reserve the relation between negligent and other torts for the next + Lecture. + </p> + <p> + <a name="link2H_4_0004" id="link2H_4_0004"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE IV. — FRAUD, MALICE, AND INTENT.—THE THEORY OF TORTS. + </h2> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-135" + name="linknoteref-135" id="linknoteref-135">[135]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-136" + name="linknoteref-136" id="linknoteref-136">[136]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-138" name="linknoteref-138" + id="linknoteref-138">[138]</a> 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/) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-141" + name="linknoteref-141" id="linknoteref-141">[141]</a> facts to constitute + probable cause, but whether the court thinks they did. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-142" name="linknoteref-142" + id="linknoteref-142">[142]</a> 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. + </p> + <p> + 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. + </p> + <p> + The only other cause of action in which the moral condition <a + href="#linknote-143" name="linknoteref-143" id="linknoteref-143">[143]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-144" name="linknoteref-144" + id="linknoteref-144">[144]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-145" + name="linknoteref-145" id="linknoteref-145">[145]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-147" name="linknoteref-147" + id="linknoteref-147">[147]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-148" name="linknoteref-148" + id="linknoteref-148">[148]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-149" name="linknoteref-149" id="linknoteref-149">[149]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-151" name="linknoteref-151" + id="linknoteref-151">[151]</a> 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-155" name="linknoteref-155" id="linknoteref-155">[155]</a> + the venture on the person who introduces the peril into the community. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-156" name="linknoteref-156" id="linknoteref-156">[156]</a> + rest of what an average member of the community would know, at his peril. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-157" name="linknoteref-157" + id="linknoteref-157">[157]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-158" name="linknoteref-158" + id="linknoteref-158">[158]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [164] + </p> + <p> + <a name="link2H_4_0005" id="link2H_4_0005"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE V. — THE BAILEE AT COMMON LAW. + </h2> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 + <a href="#linknote-166" name="linknoteref-166" id="linknoteref-166">[166]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-167" name="linknoteref-167" id="linknoteref-167">[167]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 + <a href="#linknote-168" name="linknoteref-168" id="linknoteref-168">[168]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. <a href="#linknote-169" name="linknoteref-169" + id="linknoteref-169">[169]</a> (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/ + </p> + <p> + 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 <a + href="#linknote-170" name="linknoteref-170" id="linknoteref-170">[170]</a> + 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. + </p> + <p> + 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, <a href="#linknote-171" + name="linknoteref-171" id="linknoteref-171">[171]</a> "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. + </p> + <p> + 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 <a + href="#linknote-172" name="linknoteref-172" id="linknoteref-172">[172]</a> + 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." + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-173" name="linknoteref-173" id="linknoteref-173">[173]</a> + 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. + </p> + <p> + 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 <a + href="#linknote-174" name="linknoteref-174" id="linknoteref-174">[174]</a> + 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. + </p> + <p> + 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 <a href="#linknote-175" name="linknoteref-175" + id="linknoteref-175">[175]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-176" name="linknoteref-176" id="linknoteref-176">[176]</a> + 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. + </p> + <p> + Next I take a case of the time of Henry VI., A.D. 1455. /6/ <a + href="#linknote-177" name="linknoteref-177" id="linknoteref-177">[177]</a> + 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. + </p> + <p> + A few years later the law is stated the same way by the famous Littleton. + He says that, if goods are delivered to <a href="#linknote-178" + name="linknoteref-178" id="linknoteref-178">[178]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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, <a href="#linknote-180" + name="linknoteref-180" id="linknoteref-180">[180]</a> C. B., in Drake v. + Royman, /1/ and Southcote's Case was followed as a leading precedent + without question for a hundred years. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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; <a href="#linknote-181" name="linknoteref-181" + id="linknoteref-181">[181]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-182" name="linknoteref-182" id="linknoteref-182">[182]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-183" name="linknoteref-183" id="linknoteref-183">[183]</a> + 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. + </p> + <p> + But there was another way besides this by which the defendant could be + charged with a duty and made liable <a href="#linknote-184" + name="linknoteref-184" id="linknoteref-184">[184]</a> 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/ + </p> + <p> + 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 <a + href="#linknote-185" name="linknoteref-185" id="linknoteref-185">[185]</a> + 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. + </p> + <p> + 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, <a + href="#linknote-186" name="linknoteref-186" id="linknoteref-186">[186]</a> + 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. + </p> + <p> + 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 <a + href="#linknote-187" name="linknoteref-187" id="linknoteref-187">[187]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-188" name="linknoteref-188" + id="linknoteref-188">[188]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-189" name="linknoteref-189" id="linknoteref-189">[189]</a> + 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 <a href="#linknote-190" name="linknoteref-190" id="linknoteref-190">[190]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-191" name="linknoteref-191" id="linknoteref-191">[191]</a> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-192" name="linknoteref-192" + id="linknoteref-192">[192]</a> 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." + </p> + <p> + 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." + </p> + <p> + 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 + <a href="#linknote-193" name="linknoteref-193" id="linknoteref-193">[193]</a> + 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/ + </p> + <p> + The case was twice argued, and all the reports agree, as far as they go, + in their statements of the points insisted on. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-194" name="linknoteref-194" id="linknoteref-194">[194]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-195" name="linknoteref-195" id="linknoteref-195">[195]</a> + 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." + </p> + <p> + 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). + </p> + <p> + 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 <a + href="#linknote-196" name="linknoteref-196" id="linknoteref-196">[196]</a> + 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. + </p> + <p> + 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 <a + href="#linknote-197" name="linknoteref-197" id="linknoteref-197">[197]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-199" name="linknoteref-199" + id="linknoteref-199">[199]</a> than that imposed by the Roman law, as + others have observed. /1/ + </p> + <p> + And, finally, the exemption from liability for acts of God or the public + enemy is characteristically English, as will be proved further on. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-200" name="linknoteref-200" id="linknoteref-200">[200]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + It is true that the Marshal's case speaks of his negligent <a + href="#linknote-201" name="linknoteref-201" id="linknoteref-201">[201]</a> + 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. + </p> + <p> + 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. + </p> + <p> + With regard to the act of God, it was a general principle, not peculiar to + carriers nor to bailees, that a duty was <a href="#linknote-202" + name="linknoteref-202" id="linknoteref-202">[202]</a> 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. + </p> + <p> + 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 <a href="#linknote-203" name="linknoteref-203" + id="linknoteref-203">[203]</a> 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/ + </p> + <p> + 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. + </p> + <p> + Lord Mansfield stated his views of public policy in terms <a + href="#linknote-204" name="linknoteref-204" id="linknoteref-204">[204]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-205" name="linknoteref-205" + id="linknoteref-205">[205]</a> reasoning extends to a general ship or a + public cab by calling all three common carriers. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [206] + </p> + <p> + <a name="link2H_4_0006" id="link2H_4_0006"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE VI. — POSSESSION. + </h2> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-207" name="linknoteref-207" id="linknoteref-207">[207]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-208" + name="linknoteref-208" id="linknoteref-208">[208]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-209" name="linknoteref-209" + id="linknoteref-209">[209]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-210" name="linknoteref-210" id="linknoteref-210">[210]</a> + 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. + </p> + <p> + 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 <a href="#linknote-211" + name="linknoteref-211" id="linknoteref-211">[211]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-212" name="linknoteref-212" id="linknoteref-212">[212]</a> + 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 <a + href="#linknote-213" name="linknoteref-213" id="linknoteref-213">[213]</a> + several cases, it tends, so far as it goes, to shake an a priori theory of + the matter. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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, <a href="#linknote-215" name="linknoteref-215" + id="linknoteref-215">[215]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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, <a href="#linknote-217" + name="linknoteref-217" id="linknoteref-217">[217]</a> 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 <a href="#linknote-218" + name="linknoteref-218" id="linknoteref-218">[218]</a> 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/ + </p> + <p> + 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 <a href="#linknote-219" name="linknoteref-219" id="linknoteref-219">[219]</a> + German theories must, most bailees and termors from the list of + possessors. /1/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-221" + name="linknoteref-221" id="linknoteref-221">[221]</a> 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. + </p> + <p> + 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, <a + href="#linknote-222" name="linknoteref-222" id="linknoteref-222">[222]</a> + 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. + </p> + <p> + 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 <a href="#linknote-223" name="linknoteref-223" + id="linknoteref-223">[223]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-224" name="linknoteref-224" id="linknoteref-224">[224]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-225" name="linknoteref-225" id="linknoteref-225">[225]</a> + 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. + </p> + <p> + It will be understood, however, that Durfee v. Jones is perfectly + consistent with the view here maintained of the <a href="#linknote-226" + name="linknoteref-226" id="linknoteref-226">[226]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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, <a + href="#linknote-227" name="linknoteref-227" id="linknoteref-227">[227]</a> + for guests in general are likened to servants in their legal position. /1/ + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-228" name="linknoteref-228" id="linknoteref-228">[228]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-229" name="linknoteref-229" id="linknoteref-229">[229]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-230" + name="linknoteref-230" id="linknoteref-230">[230]</a> servant. I allow + myself a few words, because I shall not be able to return to the subject. + </p> + <p> + 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 <a href="#linknote-231" name="linknoteref-231" + id="linknoteref-231">[231]</a> 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. + </p> + <p> + 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. + </p> + <p> + In an article in the American Law Review /4/ I referred <a + href="#linknote-232" name="linknoteref-232" id="linknoteref-232">[232]</a> + 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. + </p> + <p> + 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 <a href="#linknote-233" name="linknoteref-233" id="linknoteref-233">[233]</a> + 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. + </p> + <p> + 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 <a href="#linknote-234" + name="linknoteref-234" id="linknoteref-234">[234]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. <a href="#linknote-235" + name="linknoteref-235" id="linknoteref-235">[235]</a> 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/ + </p> + <p> + 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 <a href="#linknote-236" name="linknoteref-236" + id="linknoteref-236">[236]</a> 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/ + </p> + <p> + 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, <a href="#linknote-237" + name="linknoteref-237" id="linknoteref-237">[237]</a> 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/ + </p> + <p> + 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 <a href="#linknote-238" name="linknoteref-238" + id="linknoteref-238">[238]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-239" name="linknoteref-239" id="linknoteref-239">[239]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-240" name="linknoteref-240" + id="linknoteref-240">[240]</a> 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/ + </p> + <p> + 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 <a href="#linknote-241" name="linknoteref-241" + id="linknoteref-241">[241]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-242" name="linknoteref-242" id="linknoteref-242">[242]</a> + chattel may have full damages for its conversion by a stranger to the + title, or a return of the specific thing. /1/ + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-243" name="linknoteref-243" id="linknoteref-243">[243]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 + <a href="#linknote-244" name="linknoteref-244" id="linknoteref-244">[244]</a> + 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. + </p> + <p> + 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. + </p> + <p> + Before closing I must say a word concerning ownership and kindred + conceptions. Following the order of analysis <a href="#linknote-245" + name="linknoteref-245" id="linknoteref-245">[245]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + [247] + </p> + <p> + <a name="link2H_4_0007" id="link2H_4_0007"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE VII. — CONTRACT.—I. HISTORY. + </h2> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + But there is another contract which plays a more important part. It may, + perhaps, sound paradoxical to mention <a href="#linknote-248" + name="linknoteref-248" id="linknoteref-248">[248]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-249" name="linknoteref-249" + id="linknoteref-249">[249]</a> no way of securing the indemnity to which + the plaintiff was entitled unless the defendant chose to give such + security. /1/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-250" name="linknoteref-250" id="linknoteref-250">[250]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + It has been thought that the action was adopted from the then more + civilized procedure of the Roman law. A <a href="#linknote-252" + name="linknoteref-252" id="linknoteref-252">[252]</a> 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/ + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-253" name="linknoteref-253" id="linknoteref-253">[253]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-254" name="linknoteref-254" id="linknoteref-254">[254]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-255" + name="linknoteref-255" id="linknoteref-255">[255]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-256" name="linknoteref-256" + id="linknoteref-256">[256]</a> 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-257" name="linknoteref-257" id="linknoteref-257">[257]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-258" + name="linknoteref-258" id="linknoteref-258">[258]</a> 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. + </p> + <p> + 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, <a href="#linknote-259" + name="linknoteref-259" id="linknoteref-259">[259]</a> goes far to show + that the connection with procedure was not accidental. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-260" + name="linknoteref-260" id="linknoteref-260">[260]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + The result so far is, that the only action of contract in Glanvill's time + was debt, that the only debts recovered <a href="#linknote-261" + name="linknoteref-261" id="linknoteref-261">[261]</a> 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. + </p> + <p> + 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? + </p> + <p> + 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. <a + href="#linknote-262" name="linknoteref-262" id="linknoteref-262">[262]</a> + /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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-263" name="linknoteref-263" + id="linknoteref-263">[263]</a> 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. + </p> + <p> + 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. + </p> + <p> + To establish a debt which arose merely by way of promise or + acknowledgment, and for which there had formerly <a href="#linknote-264" + name="linknoteref-264" id="linknoteref-264">[264]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-265" name="linknoteref-265" id="linknoteref-265">[265]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-266" name="linknoteref-266" id="linknoteref-266">[266]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-267" name="linknoteref-267" id="linknoteref-267">[267]</a> + 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. + </p> + <p> + 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 <a href="#linknote-268" + name="linknoteref-268" id="linknoteref-268">[268]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-269" name="linknoteref-269" + id="linknoteref-269">[269]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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, <a href="#linknote-270" + name="linknoteref-270" id="linknoteref-270">[270]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-272" name="linknoteref-272" id="linknoteref-272">[272]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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. <a href="#linknote-273" name="linknoteref-273" + id="linknoteref-273">[273]</a> /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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + Thus writs of trespass on the case began to make their appearance; that + is, writs stating a ground of complaint <a href="#linknote-275" + name="linknoteref-275" id="linknoteref-275">[275]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-276" name="linknoteref-276" + id="linknoteref-276">[276]</a> 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-277" name="linknoteref-277" id="linknoteref-277">[277]</a> + 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? + </p> + <p> + 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/ + </p> + <p> + [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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-279" name="linknoteref-279" id="linknoteref-279">[279]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-280" name="linknoteref-280" id="linknoteref-280">[280]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 + <a href="#linknote-281" name="linknoteref-281" id="linknoteref-281">[281]</a> + 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. + </p> + <p> + 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 <a + href="#linknote-282" name="linknoteref-282" id="linknoteref-282">[282]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-283" name="linknoteref-283" id="linknoteref-283">[283]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-284" name="linknoteref-284" + id="linknoteref-284">[284]</a> 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/ + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-285" name="linknoteref-285" id="linknoteref-285">[285]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + Another circumstance may not have been without its influence. It would + seem that, in the period when assumpsit <a href="#linknote-286" + name="linknoteref-286" id="linknoteref-286">[286]</a> 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/ + </p> + <p> + Thus, where the defendant retained the plaintiff to be <a + href="#linknote-287" name="linknoteref-287" id="linknoteref-287">[287]</a> + 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. + </p> + <p> + 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. + </p> + <p> + The later fortunes of assumpsit can be briefly told. It introduced + bilateral contracts, because a promise was a <a href="#linknote-288" + name="linknoteref-288" id="linknoteref-288">[288]</a> 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. + </p> + <p> + [289] + </p> + <p> + <a name="link2H_4_0008" id="link2H_4_0008"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE VIII. — CONTRACT. II. ELEMENTS. + </h2> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + It is said that any benefit conferred by the promisee on the promisor, or + any detriment incurred by the promisee, <a href="#linknote-290" + name="linknoteref-290" id="linknoteref-290">[290]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-291" name="linknoteref-291" + id="linknoteref-291">[291]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-292" name="linknoteref-292" id="linknoteref-292">[292]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-293" + name="linknoteref-293" id="linknoteref-293">[293]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-294" name="linknoteref-294" + id="linknoteref-294">[294]</a> conventional inducement, each for the + other, between consideration and promise. + </p> + <p> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-296" name="linknoteref-296" id="linknoteref-296">[296]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-297" name="linknoteref-297" + id="linknoteref-297">[297]</a> 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/ + </p> +<pre xml:space="preserve"> +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 <a + href="#linknote-298" name="linknoteref-298" id="linknoteref-298">[298]</a> +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." +</pre> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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 <a href="#linknote-301" + name="linknoteref-301" id="linknoteref-301">[301]</a> 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. + </p> + <p> + 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 <a href="#linknote-302" name="linknoteref-302" + id="linknoteref-302">[302]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-304" name="linknoteref-304" id="linknoteref-304">[304]</a> + until then unless it has expired or has been revoked, the question of + acceptance is rarely of practical importance. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-305" name="linknoteref-305" id="linknoteref-305">[305]</a> + 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. + </p> + <p> + 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. <a href="#linknote-306" name="linknoteref-306" + id="linknoteref-306">[306]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [308] + </p> + <p> + <a name="link2H_4_0009" id="link2H_4_0009"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE IX. — CONTRACT.—III. VOID AND VOIDABLE. + </h2> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-309" + name="linknoteref-309" id="linknoteref-309">[309]</a> doctrine need be + resorted to, because the primary elements of a contract explained in the + last Lecture are not yet present. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-310" + name="linknoteref-310" id="linknoteref-310">[310]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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; <a + href="#linknote-311" name="linknoteref-311" id="linknoteref-311">[311]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-313" name="linknoteref-313" + id="linknoteref-313">[313]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-316" name="linknoteref-316" id="linknoteref-316">[316]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-318" + name="linknoteref-318" id="linknoteref-318">[318]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-319" name="linknoteref-319" + id="linknoteref-319">[319]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-320" + name="linknoteref-320" id="linknoteref-320">[320]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. <a href="#linknote-325" name="linknoteref-325" + id="linknoteref-325">[325]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. <a href="#linknote-327" name="linknoteref-327" + id="linknoteref-327">[327]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-328" name="linknoteref-328" id="linknoteref-328">[328]</a> + 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/ + </p> + <p> + 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 <a + href="#linknote-329" name="linknoteref-329" id="linknoteref-329">[329]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-330" name="linknoteref-330" + id="linknoteref-330">[330]</a> 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 <a href="#linknote-331" name="linknoteref-331" + id="linknoteref-331">[331]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + [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. + </p> + <p> + 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 <a href="#linknote-334" name="linknoteref-334" + id="linknoteref-334">[334]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-335" name="linknoteref-335" + id="linknoteref-335">[335]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-336" + name="linknoteref-336" id="linknoteref-336">[336]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-337" name="linknoteref-337" id="linknoteref-337">[337]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-339" + name="linknoteref-339" id="linknoteref-339">[339]</a> 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/ + </p> + <p> + [340] + </p> + <p> + <a name="link2H_4_0010" id="link2H_4_0010"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE X. — SUCCESSIONS AFTER DEATH. + </h2> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-341" + name="linknoteref-341" id="linknoteref-341">[341]</a> 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? + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-342" name="linknoteref-342" + id="linknoteref-342">[342]</a> people, and shall consider whether any + relation can be established between the two. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + Starting from this point it is easy to understand the <a + href="#linknote-343" name="linknoteref-343" id="linknoteref-343">[343]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-344" name="linknoteref-344" id="linknoteref-344">[344]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + Again, the appointment of an executor relates back to the date of the + testator's death. The continuity of person <a href="#linknote-345" + name="linknoteref-345" id="linknoteref-345">[345]</a> is preserved by this + fiction, as in Rome it was by personifying the inheritance ad interim. + </p> + <p> + 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. + </p> + <p> + Executors and administrators afford the chief, if not the only, example of + universal succession in the English <a href="#linknote-346" + name="linknoteref-346" id="linknoteref-346">[346]</a> 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. + </p> + <p> + 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 <a href="#linknote-347" + name="linknoteref-347" id="linknoteref-347">[347]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-348" name="linknoteref-348" id="linknoteref-348">[348]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-349" name="linknoteref-349" + id="linknoteref-349">[349]</a> 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. + </p> + <p> + 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/ + </p> + <p> + But this is not all. The identity of person was carried <a + href="#linknote-350" name="linknoteref-350" id="linknoteref-350">[350]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-351" name="linknoteref-351" + id="linknoteref-351">[351]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-352" name="linknoteref-352" + id="linknoteref-352">[352]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0011" id="link2H_4_0011"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE X. — SUCCESSIONS INTER VIVOS + </h2> + <p> + 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. + </p> + <p> + <a href="#linknote-354" name="linknoteref-354" id="linknoteref-354">[354]</a> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-356" name="linknoteref-356" + id="linknoteref-356">[356]</a> of property which originally could not be + given outside the family, was worked out through the form of making the + grantee an heir. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-357" name="linknoteref-357" id="linknoteref-357">[357]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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 <a + href="#linknote-358" name="linknoteref-358" id="linknoteref-358">[358]</a> + 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 <a href="#linknote-359" name="linknoteref-359" + id="linknoteref-359">[359]</a> 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/ + </p> + <p> + 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. + </p> + <p> + "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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-361" name="linknoteref-361" + id="linknoteref-361">[361]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-362" name="linknoteref-362" id="linknoteref-362">[362]</a> + 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. + </p> + <p> + 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/ + </p> + <p> + 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? + </p> + <p> + <a href="#linknote-363" name="linknoteref-363" id="linknoteref-363">[363]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-364" + name="linknoteref-364" id="linknoteref-364">[364]</a> assumption, at + least, of a persona formerly sustained by another. It clearly does so in + the passage before us. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-365" name="linknoteref-365" + id="linknoteref-365">[365]</a> 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. + </p> + <p> + 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 <a href="#linknote-366" + name="linknoteref-366" id="linknoteref-366">[366]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 + <a href="#linknote-367" name="linknoteref-367" id="linknoteref-367">[367]</a> + 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 <a + href="#linknote-368" name="linknoteref-368" id="linknoteref-368">[368]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-370" name="linknoteref-370" id="linknoteref-370">[370]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-371" name="linknoteref-371" id="linknoteref-371">[371]</a> + <a name="link2H_4_0012" id="link2H_4_0012"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + LECTURE XI. — SUCCESSIONS.—II. INTER VIVOS. + </h2> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + After the Conquest we do not hear much of warranty, except in connection + with land, and this fact will at once <a href="#linknote-372" + name="linknoteref-372" id="linknoteref-372">[372]</a> 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. + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-374" + name="linknoteref-374" id="linknoteref-374">[374]</a> 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/ + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-375" name="linknoteref-375" id="linknoteref-375">[375]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-377" + name="linknoteref-377" id="linknoteref-377">[377]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-378" + name="linknoteref-378" id="linknoteref-378">[378]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-379" name="linknoteref-379" id="linknoteref-379">[379]</a> + 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/ + </p> + <p> + 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 <a href="#linknote-380" name="linknoteref-380" + id="linknoteref-380">[380]</a> 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/ + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-383" + name="linknoteref-383" id="linknoteref-383">[383]</a> 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. + </p> + <p> + 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 <a href="#linknote-384" name="linknoteref-384" + id="linknoteref-384">[384]</a> 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/ + </p> + <p> + 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. + </p> + <p> + All that can be said is, that the metaphors and similes employed naturally + led to the rule which has prevailed, <a href="#linknote-385" + name="linknoteref-385" id="linknoteref-385">[385]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-386" + name="linknoteref-386" id="linknoteref-386">[386]</a> 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. + </p> + <p> + 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/ + </p> + <p> + There is no doubt about the later law, as has been said at the outset. + </p> + <p> + 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 <a href="#linknote-387" name="linknoteref-387" + id="linknoteref-387">[387]</a> 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. + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-388" name="linknoteref-388" id="linknoteref-388">[388]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + <a href="#linknote-389" name="linknoteref-389" id="linknoteref-389">[389]</a> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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 <a href="#linknote-390" name="linknoteref-390" + id="linknoteref-390">[390]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-391" name="linknoteref-391" id="linknoteref-391">[391]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-392" name="linknoteref-392" id="linknoteref-392">[392]</a> + 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. + </p> + <p> + 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 <a href="#linknote-393" name="linknoteref-393" + id="linknoteref-393">[393]</a> 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 <a + href="#linknote-394" name="linknoteref-394" id="linknoteref-394">[394]</a> + 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? + </p> + <p> + 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 <a + href="#linknote-395" name="linknoteref-395" id="linknoteref-395">[395]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-396" + name="linknoteref-396" id="linknoteref-396">[396]</a> 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. + </p> + <p> + 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. + </p> + <p> + 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/) + </p> + <p> + Finchden: a fortiori in this case; for there the action <a + href="#linknote-397" name="linknoteref-397" id="linknoteref-397">[397]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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/ + </p> + <p> + It will be seen that the discussion followed the lines marked out by the + pleading. One judge thought that <a href="#linknote-398" + name="linknoteref-398" id="linknoteref-398">[398]</a> 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. + </p> + <p> + 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 <a + href="#linknote-399" name="linknoteref-399" id="linknoteref-399">[399]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-400" name="linknoteref-400" id="linknoteref-400">[400]</a> + 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. + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-401" name="linknoteref-401" id="linknoteref-401">[401]</a> + 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. + </p> + <p> + 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. + </p> + <p> + These questions have not lost their importance. Covenants for title are in + every deed, and other covenants are <a href="#linknote-402" + name="linknoteref-402" id="linknoteref-402">[402]</a> only less common, + which, it remains to show, belong to the other class. + </p> + <p> + 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. + </p> + <p> + 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 <a href="#linknote-403" name="linknoteref-403" + id="linknoteref-403">[403]</a> repair went with the land, like other + rights of common, /1/ which, as Lord Coke has told us, passed even to + disseisors. + </p> + <p> + 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/ + </p> + <p> + 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/ + </p> + <p> + 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, <a href="#linknote-404" name="linknoteref-404" + id="linknoteref-404">[404]</a> 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. + </p> + <p> + 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. + </p> + <p> + *A. With regard to covenants which go with the land:— + </p> + <p> + *(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. + </p> + <p> + *(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. + </p> + <p> + *(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. + </p> + <p> + *B. With regard to covenants which go only with the estate in the land:— + </p> + <p> + 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. + </p> + <p> + <a href="#linknote-406" name="linknoteref-406" id="linknoteref-406">[406]</a> + 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 <a + href="#linknote-407" name="linknoteref-407" id="linknoteref-407">[407]</a> + of the law is limited by custom, and by the rule that new and unusual + burdens cannot be imposed on land. + </p> + <p> + 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. + </p> + <p> + 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, <a + href="#linknote-408" name="linknoteref-408" id="linknoteref-408">[408]</a> + 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/ + </p> + <p> + 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. + </p> + <p> + 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 <a + href="#linknote-409" name="linknoteref-409" id="linknoteref-409">[409]</a> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_FOOT" id="link2H_FOOT"> + <!-- H2 anchor --> </a> <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <h2> + FOOTNOTES + </h2> + <p> + <a name="linknote-3" id="linknote-3"> + <!-- Note --></a> + </p> + <p class="foot"> + 3 (<a href="#linknoteref-3">return</a>)<br /> + </p> + <p> + 3/1 E.g. Ine, c. 74; Alfred, c. 42; Ethelred, IV. 4, Section 1. + </p> + <p> + 3/2 Bract., fol. 144, 145; Fleta, I. c. 40, 41; Co. Lit. 126b; Hawkins, + P.C., Bk. 2, ch. 23, Section 15. + </p> + <p> + 3/3 Lib. I. c. 2, ad fin. + </p> + <p> + 3 /4 Bract., fol. 144a, "assulto praemeditato." + </p> + <p> + <a name="linknote-4" id="linknote-4"> + <!-- Note --></a> + </p> + <p class="foot"> + 4 (<a href="#linknoteref-4">return</a>)<br /> + </p> + <p> + 4/1 Fol. 155; cf. 103b. + </p> + <p> + 4/2 Y.B. 6 Ed. IV. 7, pl. 18. + </p> + <p> + 4/3 Ibid., and 21 H. VII. 27, pl. 5. + </p> + <p> + 4/4 D. 47. 9. 9. + </p> + <p> + <a name="linknote-7" id="linknote-7"> + <!-- Note --></a> + </p> + <p class="foot"> + 7 (<a href="#linknoteref-7">return</a>)<br /> + </p> + <p> + 7/1 xxi. 28. + </p> + <p> + 7/2 [theta], ix. Jowett's Tr., Bk. IX. p. 437; Bohn's Tr., pp. 378, 379. + </p> + <p> + 7/3 [theta], xv., Jowett, 449; Bohn, 397. + </p> + <p> + <a name="linknote-8" id="linknote-8"> + <!-- Note --></a> + </p> + <p class="foot"> + 8 (<a href="#linknoteref-8">return</a>)<br /> + </p> + <p> + 8/1 [iota alpha], xiv., Jowett, 509; Bohn, 495. + </p> + <p> + 8/2 [theta], xii., Jowett, 443, 444; Bohn, 388. + </p> + <p> + 8/3 [Greek words]. 244, 245. + </p> + <p> + 8/4 l. 28 (11). + </p> + <p> + 8/5 Solon. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-9" id="linknote-9"> + <!-- Note --></a> + </p> + <p class="foot"> + 9 (<a href="#linknoteref-9">return</a>)<br /> + </p> + <p> + 9/1 D. 39. 2. 7, Sections 1, 2; Gaii Inst. IV. Section 75. + </p> + <p> + 9/2 "Noxa caput sequitur." D. 9. 1. 1, Section 12; Inst. 4.8, Section 5. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-10" id="linknote-10"> + <!-- Note --></a> + </p> + <p class="foot"> + 10 (<a href="#linknoteref-10">return</a>)<br /> + </p> + <p> + 10/1 D. 19. 5. 14, Section 3; Plin. Nat. Hist., XVIII. 3. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-11" id="linknote-11"> + <!-- Note --></a> + </p> + <p class="foot"> + 11 (<a href="#linknoteref-11">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 11/2 Florus, Epitome, II. 18. Cf. Livy, IX 1, 8, VIII. 39; Zonaras, VII. + 26, ed. Niebuhr, vol. 43, pp. 98, 99. + </p> + <p> + <a name="linknote-12" id="linknote-12"> + <!-- Note --></a> + </p> + <p class="foot"> + 12 (<a href="#linknoteref-12">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 12/2 "Bello contra foedus suscepto." + </p> + <p> + 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. + </p> + <p> + <a name="linknote-13" id="linknote-13"> + <!-- Note --></a> + </p> + <p class="foot"> + 13 (<a href="#linknoteref-13">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-14" id="linknote-14"> + <!-- Note --></a> + </p> + <p class="foot"> + 14 (<a href="#linknoteref-14">return</a>)<br /> + </p> + <p> + 14/1 D. 9. 4. 2 + </p> + <p> + 14/2 2 Tissot, Droit Penal, 615; 1 Ihering, Geist d. Roem. R., Section 14; + 4 id. Section 63. + </p> + <p> + 14/3 Aul. Gell. Noctes Attici, 20. 1; Quintil. Inst. Orat. 3. 6. 84; + Tertull. Apol., c. 4. + </p> + <p> + 14/4 Cf. Varro, De Lingua Latina, VI.: "Liber, qui suas operas in + servitute pro pecunia, quam debeat, dum solveret Nexus vocatur." + </p> + <p> + <a name="linknote-15" id="linknote-15"> + <!-- Note --></a> + </p> + <p class="foot"> + 15 (<a href="#linknoteref-15">return</a>)<br /> + </p> + <p> + 15/1 D. 9. 1. 1, Section 9 But cf. 1 Hale, P.C. 420. + </p> + <p> + 15/2 D. 9. 4. 2, Section 1. + </p> + <p> + 15/3 D. 9. 1. 1, Sections 4, 5. + </p> + <p> + <a name="linknote-16" id="linknote-16"> + <!-- Note --></a> + </p> + <p class="foot"> + 16 (<a href="#linknoteref-16">return</a>)<br /> + </p> + <p> + 16/1 D. 4. 9. 1, Section 1; ib. 7, Section 4. + </p> + <p> + 16/2 Gaius in D. 44. 7. 5, Section 6; Just. Inst. 4. 5, Section 3. + </p> + <p> + 16/3 D. 4. 9. 7, pr. + </p> + <p> + <a name="linknote-17" id="linknote-17"> + <!-- Note --></a> + </p> + <p class="foot"> + 17 (<a href="#linknoteref-17">return</a>)<br /> + </p> + <p> + 17/1 See Austin, Jurisp. (3d ed.) 513; Doctor and Student, Dial. 2, ch. + 42. + </p> + <p> + 17/2 Cf. L. Burgund. XVIII.; L. Rip. XLVI. (al. 48). + </p> + <p> + 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. + </p> + <p> + 17/4 Wilda, Strafrecht, 590. + </p> + <p> + <a name="linknote-18" id="linknote-18"> + <!-- Note --></a> + </p> + <p class="foot"> + 18 (<a href="#linknoteref-18">return</a>)<br /> + </p> + <p> + 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." + </p> + <p> + 18/2 L. Saxon. XI. Section 1. + </p> + <p> + 18/3 Lex Angl. et Wer. XVI.: "Omne damnum quod servus fecerit dominus + emendet." + </p> + <p> + <a name="linknote-19" id="linknote-19"> + <!-- Note --></a> + </p> + <p class="foot"> + 19 (<a href="#linknoteref-19">return</a>)<br /> + </p> + <p> + 19/1 C. 3; 1 Thorpe, Anc. Laws, pp. 27, 29. + </p> + <p> + 19/2 C. 74; 1 Thorpe, p. 149; cf. p. 118, n. a. See LL. Hen. I., LXX. + Section 5. + </p> + <p> + 19/3 C. 24; 1 Thorpe, p. 79. Cf. Ine, c. 42; 1 Thorpe, p. 129. + </p> + <p> + 19/4 C. 13; 1 Thorpe, p. 71. + </p> + <p> + 19/5 1 Tylor, Primitive Culture, Am. ed., p. 286. + </p> + <p> + <a name="linknote-20" id="linknote-20"> + <!-- Note --></a> + </p> + <p class="foot"> + 20 (<a href="#linknoteref-20">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 20/2 Quon. Attach., c. 48, pl. 10 et seq. Cf. The Forme and Maner of Baron + Courts, c. 62 et seq. + </p> + <p> + <a name="linknote-21" id="linknote-21"> + <!-- Note --></a> + </p> + <p class="foot"> + 21 (<a href="#linknoteref-21">return</a>)<br /> + </p> + <p> + 21/1 Forme and Maner of Baron Courts, c. 63. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-22" id="linknote-22"> + <!-- Note --></a> + </p> + <p class="foot"> + 22 (<a href="#linknoteref-22">return</a>)<br /> + </p> + <p> + 22/1 Fitzh. Abr. Barre, pl. 290. + </p> + <p> + 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. + </p> + <p> + 22/3 May v. Burdett, 9 Q.B.101. + </p> + <p> + 22/4 Mason v. Keeling, 12 Mod. 332, 335; S.C. 1 Ld. Raym. 606, 608. + </p> + <p> + <a name="linknote-23" id="linknote-23"> + <!-- Note --></a> + </p> + <p class="foot"> + 23 (<a href="#linknoteref-23">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 23/2 Mason v. Keeling, 1 Ld. Raym. 606, 608. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-24" id="linknote-24"> + <!-- Note --></a> + </p> + <p class="foot"> + 24 (<a href="#linknoteref-24">return</a>)<br /> + </p> + <p> + 24/1 Fol. 128. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-25" id="linknote-25"> + <!-- Note --></a> + </p> + <p class="foot"> + 25 (<a href="#linknoteref-25">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 25/2 Doctor and Student, Dial. 2, c. 51. + </p> + <p> + 25/3 Plowd. 260. + </p> + <p> + 25/4 Jacob, Law Dict. Deodand. + </p> + <p> + 25/5 Y.B. 30 & 31 Ed. I., pp. 524, 525; cf. Bract., fol. 136b. + </p> + <p> + <a name="linknote-26" id="linknote-26"> + <!-- Note --></a> + </p> + <p class="foot"> + 26 (<a href="#linknoteref-26">return</a>)<br /> + </p> + <p> + 26/1 Fitzh. Abr. Corone, pl. 403. + </p> + <p> + 26/2 Bract. 122; 1 Britton (Nich.), top p. 16; Fleta, Ic. 25, Section 9, + fol. 37. + </p> + <p> + 26/3 1 Hale, P.C. 423. + </p> + <p> + 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. + </p> + <p> + 26/5 1 Black Book of the Admiralty, 242. + </p> + <p> + <a name="linknote-27" id="linknote-27"> + <!-- Note --></a> + </p> + <p class="foot"> + 27 (<a href="#linknoteref-27">return</a>)<br /> + </p> + <p> + 27/1 Cf. Ticonderoga, Swabey, 215, 217. + </p> + <p> + 27/2 China, 7 Wall. 53. + </p> + <p> + <a name="linknote-28" id="linknote-28"> + <!-- Note --></a> + </p> + <p class="foot"> + 28 (<a href="#linknoteref-28">return</a>)<br /> + </p> + <p> + 28/1 Doctor and Student, Dial. 2, c. 51. + </p> + <p> + 28/2 1 Roll. Abr. 530 (C) 1. + </p> + <p> + <a name="linknote-29" id="linknote-29"> + <!-- Note --></a> + </p> + <p class="foot"> + 29 (<a href="#linknoteref-29">return</a>)<br /> + </p> + <p> + 29/1 3 Black Book of Adm. 103. + </p> + <p> + 29/2 Malek Adhel, 2 How. 210, 234. + </p> + <p> + <a name="linknote-30" id="linknote-30"> + <!-- Note --></a> + </p> + <p class="foot"> + 30 (<a href="#linknoteref-30">return</a>)<br /> + </p> + <p> + 30/1 3 Kent, 218; Customs of the Sea, cap. 27, 141, 182, in 3 Black Book + of the Admiralty, 103, 243, 245. + </p> + <p> + <a name="linknote-31" id="linknote-31"> + <!-- Note --></a> + </p> + <p class="foot"> + 31 (<a href="#linknoteref-31">return</a>)<br /> + </p> + <p> + 31/1 3 Kent's Comm. 188. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-32" id="linknote-32"> + <!-- Note --></a> + </p> + <p class="foot"> + 32 (<a href="#linknoteref-32">return</a>)<br /> + </p> + <p> + 32/1 3 Black Book, pp. lix., lxxiv. + </p> + <p> + 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." + </p> + <p> + 32/3 Lipson v. Harrison, 2 Weekly Rep. 10. Cf. Louisa Jane, 2 Lowell, 295. + </p> + <p> + 32/4 3 Kent's Comm. (12th ed.), 218; ib. 138, n. 1. + </p> + <p> + 32/5 3 Kent, 218. + </p> + <p> + 32/6 Justin v. Ballam, 1 Salk. 34; S.C. 2 Ld. Raym. 805. + </p> + <p> + <a name="linknote-33" id="linknote-33"> + <!-- Note --></a> + </p> + <p class="foot"> + 33 (<a href="#linknoteref-33">return</a>)<br /> + </p> + <p> + 33/1 D. 20. 4. 5 & 6; cf. Livy, XXX. 38. + </p> + <p> + 33/2 Pardessus, Droit. Comm., n. 961. + </p> + <p> + 33/3 3 Keb. 112, 114, citing 1 Roll. Abr. 530. + </p> + <p> + <a name="linknote-34" id="linknote-34"> + <!-- Note --></a> + </p> + <p class="foot"> + 34 (<a href="#linknoteref-34">return</a>)<br /> + </p> + <p> + 34/1 Godbolt, 260. + </p> + <p> + 34/2 3 Colquhoun, Roman Civil Law, Section 2196. + </p> + <p> + <a name="linknote-35" id="linknote-35"> + <!-- Note --></a> + </p> + <p class="foot"> + 35 (<a href="#linknoteref-35">return</a>)<br /> + </p> + <p> + 35/1 Lex Salica (Merkel), LXXVII.; Ed. Hilperich., Section 5. + </p> + <p> + <a name="linknote-36" id="linknote-36"> + <!-- Note --></a> + </p> + <p class="foot"> + 36 (<a href="#linknoteref-36">return</a>)<br /> + </p> + <p> + 36/1 See Lecture III., ad fin. + </p> + <p> + <a name="linknote-39" id="linknote-39"> + <!-- Note --></a> + </p> + <p class="foot"> + 39 (<a href="#linknoteref-39">return</a>)<br /> + </p> + <p> + 39/1 Cf. 2 Hawk. P.C. 303 et seq.; 27 Ass. 25. + </p> + <p> + <a name="linknote-40" id="linknote-40"> + <!-- Note --></a> + </p> + <p class="foot"> + 40 (<a href="#linknoteref-40">return</a>)<br /> + </p> + <p> + 40/1 2 Palgrave, Commonwealth, cxxx., cxxxi. + </p> + <p> + <a name="linknote-41" id="linknote-41"> + <!-- Note --></a> + </p> + <p class="foot"> + 41 (<a href="#linknoteref-41">return</a>)<br /> + </p> + <p> + 41/1 Butler, Sermons, VIII. Bentham, Theory of Legislation (Principles of + Penal Code, Part 2, ch. 16), Hildreth's tr., p. 309. + </p> + <p> + 41/2 General View of the Criminal Law of England, p. 99. + </p> + <p> + <a name="linknote-43" id="linknote-43"> + <!-- Note --></a> + </p> + <p class="foot"> + 43 (<a href="#linknoteref-43">return</a>)<br /> + </p> + <p> + 43/1 Wharton, Crim. Law, (8th ed.) Section 8, n. 1. + </p> + <p> + 43/2 Ibid., Section 7. + </p> + <p> + 43/3 Even the law recognizes that this is a sacrifice. Commonwealth v. + Sawin, 2 Pick. (Mass.) 547, 549. + </p> + <p> + <a name="linknote-47" id="linknote-47"> + <!-- Note --></a> + </p> + <p class="foot"> + 47 (<a href="#linknoteref-47">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-51" id="linknote-51"> + <!-- Note --></a> + </p> + <p class="foot"> + 51 (<a href="#linknoteref-51">return</a>)<br /> + </p> + <p> + 51/1 Art. 223. + </p> + <p> + 51/2 General View of the Criminal Law of England, p. 116. + </p> + <p> + <a name="linknote-53" id="linknote-53"> + <!-- Note --></a> + </p> + <p class="foot"> + 53 (<a href="#linknoteref-53">return</a>)<br /> + </p> + <p> + 53/1 Harris, Criminal Law, p. 13. + </p> + <p> + 53/2 Steph. Dig. Crim. Law, Art. 223, Illustration (6), and n. 1. + </p> + <p> + <a name="linknote-56" id="linknote-56"> + <!-- Note --></a> + </p> + <p class="foot"> + 56 (<a href="#linknoteref-56">return</a>)<br /> + </p> + <p> + 56/1 4 Bl. Comm. 192. + </p> + <p> + <a name="linknote-57" id="linknote-57"> + <!-- Note --></a> + </p> + <p class="foot"> + 57 (<a href="#linknoteref-57">return</a>)<br /> + </p> + <p> + 57/1 Cf. 4 Bl. Comm. 197. + </p> + <p> + <a name="linknote-58" id="linknote-58"> + <!-- Note --></a> + </p> + <p class="foot"> + 58 (<a href="#linknoteref-58">return</a>)<br /> + </p> + <p> + 58/1 Reg. v. Hibbert, L.R. 1 C.C. 184. + </p> + <p> + <a name="linknote-59" id="linknote-59"> + <!-- Note --></a> + </p> + <p class="foot"> + 59 (<a href="#linknoteref-59">return</a>)<br /> + </p> + <p> + 59/1 Reg. v. Prince, L.R. 2 C.C. 154. + </p> + <p> + 59/2 Commonwealth v. Hallett, 103 Mass. 452. + </p> + <p> + <a name="linknote-60" id="linknote-60"> + <!-- Note --></a> + </p> + <p class="foot"> + 60 (<a href="#linknoteref-60">return</a>)<br /> + </p> + <p> + 60/1 Stephen, Dig. Cr. Law, Art. 223, Illustr. (5); Foster, 294, 295. + </p> + <p> + 60/2 Cf. Gray's case, cited 2 Strange, 774. + </p> + <p> + 60/3 Steph. Dig., Art. 223, Illustr. (1). + </p> + <p> + 60/4 Steph. Dig., Art. 223, Illustr. (8). + </p> + <p> + 60/5 Rex v. Mastin, 6 C.&P. 396. Cf. Reg. v. Swindall, 2 C. & K. + 230. + </p> + <p> + 60/6 4 Bl. Comm. 192. + </p> + <p> + <a name="linknote-62" id="linknote-62"> + <!-- Note --></a> + </p> + <p class="foot"> + 62 (<a href="#linknoteref-62">return</a>)<br /> + </p> + <p> + 62/1 Steph. Dig. Cr. Law, Art. 225. + </p> + <p> + 62/2 Rex v. Shaw, 6 C.&P. 372. + </p> + <p> + 62/3 Rex v. Oneby, 2 Strange, 766, 773. + </p> + <p> + 62/4 Rex v. Hayward, 6 C.&P. 157. + </p> + <p> + <a name="linknote-63" id="linknote-63"> + <!-- Note --></a> + </p> + <p class="foot"> + 63 (<a href="#linknoteref-63">return</a>)<br /> + </p> + <p> + 63/1 Commonwealth v. Walden, 3 Cush. (Mass.) 558. Cf. Steph. Gen. View of + the Crim. Law, 84. + </p> + <p> + <a name="linknote-64" id="linknote-64"> + <!-- Note --></a> + </p> + <p class="foot"> + 64 (<a href="#linknoteref-64">return</a>)<br /> + </p> + <p> + 64/1 2 Bishop Crim. Law, Section 14 (6th ed.). + </p> + <p> + 64/2 Glanv., Lib. XIV. c. 4. + </p> + <p> + 64/3 Bract., fol. 146b. + </p> + <p> + 64/4 Ibid. + </p> + <p> + 64/5 2 East, P.C., c. 21, Sections 7, 8, pp. 1027, 1031. + </p> + <p> + <a name="linknote-66" id="linknote-66"> + <!-- Note --></a> + </p> + <p class="foot"> + 66 (<a href="#linknoteref-66">return</a>)<br /> + </p> + <p> + 66/1 1 Bishop, Crim. Law, Section 735 (6th ed.). + </p> + <p> + 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. + </p> + <p> + <a name="linknote-67" id="linknote-67"> + <!-- Note --></a> + </p> + <p class="foot"> + 67 (<a href="#linknoteref-67">return</a>)<br /> + </p> + <p> + 67/1 Reg. v. Taylor, 1 F. & F. 511. + </p> + <p> + 67/2 Reg. v. Roberts, 25 L. J. M. C. 17; S.C. Dearsly, C., C. 539. + </p> + <p> + <a name="linknote-68" id="linknote-68"> + <!-- Note --></a> + </p> + <p class="foot"> + 68 (<a href="#linknoteref-68">return</a>)<br /> + </p> + <p> + 68/1 Lewis v. The State, 35 Ala. 380. + </p> + <p> + <a name="linknote-69" id="linknote-69"> + <!-- Note --></a> + </p> + <p class="foot"> + 69 (<a href="#linknoteref-69">return</a>)<br /> + </p> + <p> + 69/1 See M'Pherson's Case, Dearsly & Bell, 197, 201, Bramwell, B. + </p> + <p> + 69/2 Cf. 1 Bishop, Crim. Law, Sections 741-745 (6th ed.). + </p> + <p> + <a name="linknote-71" id="linknote-71"> + <!-- Note --></a> + </p> + <p class="foot"> + 71 (<a href="#linknoteref-71">return</a>)<br /> + </p> + <p> + 71/1 2 Bishop, Crim. Law, Section 758 (6th ed.). + </p> + <p> + <a name="linknote-73" id="linknote-73"> + <!-- Note --></a> + </p> + <p class="foot"> + 73 (<a href="#linknoteref-73">return</a>)<br /> + </p> + <p> + 73/1 Cf. Stephen, General View of Criminal Law of England, 49 et seq. + </p> + <p> + 73/2 Cf. Stephen, General View, 49-52; 2 East, P.C. 553. + </p> + <p> + <a name="linknote-74" id="linknote-74"> + <!-- Note --></a> + </p> + <p class="foot"> + 74 (<a href="#linknoteref-74">return</a>)<br /> + </p> + <p> + 74/1 Rex v. Cabbage, Russ. & Ry. 292. + </p> + <p> + 74/2 Cf. 4 Bl. Comm. 224; Steph. Dig. Crim. Law, Arts. 316, 319. + </p> + <p> + 74/3 Cf. 4 Bl. Comm. 227, 228. + </p> + <p> + <a name="linknote-75" id="linknote-75"> + <!-- Note --></a> + </p> + <p class="foot"> + 75 (<a href="#linknoteref-75">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-81" id="linknote-81"> + <!-- Note --></a> + </p> + <p class="foot"> + 81 (<a href="#linknoteref-81">return</a>)<br /> + </p> + <p> + 81/1 See Lecture VII. + </p> + <p> + <a name="linknote-82" id="linknote-82"> + <!-- Note --></a> + </p> + <p class="foot"> + 82 (<a href="#linknoteref-82">return</a>)<br /> + </p> + <p> + 82/1 Austin, Jurisprudence (3d ed.), 440 et seq., 474, 484, Lect. XX., + XXIV., XXV. + </p> + <p> + <a name="linknote-84" id="linknote-84"> + <!-- Note --></a> + </p> + <p class="foot"> + 84 (<a href="#linknoteref-84">return</a>)<br /> + </p> + <p> + 84/1 Lib. I. c. 2, ad fin. + </p> + <p> + <a name="linknote-85" id="linknote-85"> + <!-- Note --></a> + </p> + <p class="foot"> + 85 (<a href="#linknoteref-85">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-87" id="linknote-87"> + <!-- Note --></a> + </p> + <p class="foot"> + 87 (<a href="#linknoteref-87">return</a>)<br /> + </p> + <p> + 87/1 Y.B. 21 Hen. VII. 27, pl. 5, A.D. 1506. + </p> + <p> + 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. + </p> + <p> + 87/3 Hobart, 134, A.D. 1616. + </p> + <p> + 87/4 Sir T. Jones, 205, A.D. 1682. + </p> + <p> + 87/5 1 Strange, 596, A.D. 1723. + </p> + <p> + 87/6 2 Keyes, 169, A.D. 1865. + </p> + <p> + <a name="linknote-88" id="linknote-88"> + <!-- Note --></a> + </p> + <p class="foot"> + 88 (<a href="#linknoteref-88">return</a>)<br /> + </p> + <p> + 88/1 Anonymous, Cro. Eliz. 10, A.D. 1582. + </p> + <p> + 88/2 Sir T. Raym. 467, A.D. 1682. + </p> + <p> + 88/3 Scott v. Shepherd, 2 Wm. B1. 892, A.D. 1773. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-90" id="linknote-90"> + <!-- Note --></a> + </p> + <p class="foot"> + 90 (<a href="#linknoteref-90">return</a>)<br /> + </p> + <p> + 90/1 Ex. gr. Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193. See + M'Manus v. Crickett, 1 East, 106, 108. + </p> + <p> + <a name="linknote-91" id="linknote-91"> + <!-- Note --></a> + </p> + <p class="foot"> + 91 (<a href="#linknoteref-91">return</a>)<br /> + </p> + <p> + 91/1 1 Ld. Raym. 38; S.C. Salk. 637; 4 Mod. 404; A.D. 1695. + </p> + <p> + <a name="linknote-92" id="linknote-92"> + <!-- Note --></a> + </p> + <p class="foot"> + 92 (<a href="#linknoteref-92">return</a>)<br /> + </p> + <p> + 92/1 2 Wm. Bl. 892. Cf. Clark v. Chambers, 3 Q.B.D. 327, 330, 338. + </p> + <p> + 92/2 7 Vt, 62. + </p> + <p> + <a name="linknote-93" id="linknote-93"> + <!-- Note --></a> + </p> + <p class="foot"> + 93 (<a href="#linknoteref-93">return</a>)<br /> + </p> + <p> + 93/1 Smith v. London & South-Western Railway Co., L.R. 6 C.P. 14, 21. + Cf. S.C., 5 id. 98, 103, 106. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-94" id="linknote-94"> + <!-- Note --></a> + </p> + <p class="foot"> + 94 (<a href="#linknoteref-94">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-95" id="linknote-95"> + <!-- Note --></a> + </p> + <p class="foot"> + 95 (<a href="#linknoteref-95">return</a>)<br /> + </p> + <p> + 95/1 Harvey v. Dunlop, Hill & Denio, (Lalor,) 193. + </p> + <p> + 95/2 See Lecture II. pp. 54, 55. + </p> + <p> + <a name="linknote-97" id="linknote-97"> + <!-- Note --></a> + </p> + <p class="foot"> + 97 (<a href="#linknoteref-97">return</a>)<br /> + </p> + <p> + 97/1 cf. Hobart v. Hagget, 3 Fairf. (Me.) 67. + </p> + <p> + <a name="linknote-98" id="linknote-98"> + <!-- Note --></a> + </p> + <p class="foot"> + 98 (<a href="#linknoteref-98">return</a>)<br /> + </p> + <p> + 98/1 See Bonomi v. Backhouse, El. Bl. & El. 622, Coleridge, J., at p. + 640. + </p> + <p> + <a name="linknote-99" id="linknote-99"> + <!-- Note --></a> + </p> + <p class="foot"> + 99 (<a href="#linknoteref-99">return</a>)<br /> + </p> + <p> + 99/1 3 Levirtz, 87, A.D. 1681. + </p> + <p> + 99/2 Compare the rule as to cattle in Y.B. 22 Edw. IV. 8, pl. 24, stated + below, p. 118. + </p> + <p> + <a name="linknote-100" id="linknote-100"> + <!-- Note --></a> + </p> + <p class="foot"> + 100 (<a href="#linknoteref-100">return</a>)<br /> + </p> + <p> + 100/1 Disc. 123, pr.; 124, Sections 2, 3. As to the historical origin of + the latter rule, compare Lecture V. + </p> + <p> + <a name="linknote-101" id="linknote-101"> + <!-- Note --></a> + </p> + <p class="foot"> + 101 (<a href="#linknoteref-101">return</a>)<br /> + </p> + <p> + 101/1 Lecture I, pp. 3, 4. + </p> + <p> + 101/2 Lib. I. c. 2, ad. fin. + </p> + <p> + 101/3 Fol. 155. + </p> + <p> + 101/4 Bro. Trespass, pl. 119; Finch, 198; 3 Bl. Comm. 118, 119. + </p> + <p> + 101/5 See Brunner, Schwurgerichte, p. 171. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-102" id="linknote-102"> + <!-- Note --></a> + </p> + <p class="foot"> + 102 (<a href="#linknoteref-102">return</a>)<br /> + </p> + <p> + 102/1 An example may be seen in the Year Book, 30 & 31 Edward I. + (Horwood), p. 106. + </p> + <p> + <a name="linknote-103" id="linknote-103"> + <!-- Note --></a> + </p> + <p class="foot"> + 103 (<a href="#linknoteref-103">return</a>)<br /> + </p> + <p> + 103/1 6 Ed. IV. 7, pl. 18. + </p> + <p> + 103/2 Popham, 151; Latch, 13, 119, A.D. 1605. + </p> + <p> + <a name="linknote-104" id="linknote-104"> + <!-- Note --></a> + </p> + <p class="foot"> + 104 (<a href="#linknoteref-104">return</a>)<br /> + </p> + <p> + 104/1 Hobart, 134, A.D. 1616. + </p> + <p> + 104/2 3 East, 593. + </p> + <p> + <a name="linknote-105" id="linknote-105"> + <!-- Note --></a> + </p> + <p class="foot"> + 105 (<a href="#linknoteref-105">return</a>)<br /> + </p> + <p> + 105/1 1 Bing. 213, A.D. 1823. + </p> + <p> + 105/2 6 Cush. 292. + </p> + <p> + <a name="linknote-106" id="linknote-106"> + <!-- Note --></a> + </p> + <p class="foot"> + 106 (<a href="#linknoteref-106">return</a>)<br /> + </p> + <p> + 106/1 Morris v. Platt, 32 Conn. 75, 84 et seq., A.D. 1864. + </p> + <p> + 106/2 Nitro-glycerine Case (Parrot v. Wells), 15 Wall. 524, 538. + </p> + <p> + 106/3 Hill & Denio, (Lalor,) 193; Losee v. Buchanan, 51 N.Y. 476, 489. + </p> + <p> + <a name="linknote-107" id="linknote-107"> + <!-- Note --></a> + </p> + <p class="foot"> + 107 (<a href="#linknoteref-107">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-109" id="linknote-109"> + <!-- Note --></a> + </p> + <p class="foot"> + 109 (<a href="#linknoteref-109">return</a>)<br /> + </p> + <p> + 109/1 cf. Bro. Corone, pl. 6; Neal v. Gillett, 23 Conn. 437, 442; D. 9. 2. + 5, Section 2; D. 48. 8. 12. + </p> + <p> + <a name="linknote-113" id="linknote-113"> + <!-- Note --></a> + </p> + <p class="foot"> + 113 (<a href="#linknoteref-113">return</a>)<br /> + </p> + <p> + 113/1 I Thorpe, p. 85; cf. LL. Hen. I., c. 88, Section 3. + </p> + <p> + 113/2 Spofford v. Harlow, 3 Allen, 176. + </p> + <p> + <a name="linknote-114" id="linknote-114"> + <!-- Note --></a> + </p> + <p class="foot"> + 114 (<a href="#linknoteref-114">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-115" id="linknote-115"> + <!-- Note --></a> + </p> + <p class="foot"> + 115 (<a href="#linknoteref-115">return</a>)<br /> + </p> + <p> + 115/1 Hobart, 134. + </p> + <p> + 115/2 See Knight v. Jermin, Cro. Eliz. 134; Chambers v. Taylor, Cro. Eliz. + 900. + </p> + <p> + 115/3 32 Conn. 75, 89, 90. + </p> + <p> + <a name="linknote-116" id="linknote-116"> + <!-- Note --></a> + </p> + <p class="foot"> + 116 (<a href="#linknoteref-116">return</a>)<br /> + </p> + <p> + 116/1 Y.B. 12 Hen. VIII. 2 b, Pl. 2. + </p> + <p> + 116/2 Keilway, 46 b. + </p> + <p> + 116/3 L.R. 3 H.L. 330, 339; L.R. 1 Ex. 265, 279-282; 4 H.&C. 263; 3 + id. 774. + </p> + <p> + <a name="linknote-117" id="linknote-117"> + <!-- Note --></a> + </p> + <p class="foot"> + 117 (<a href="#linknoteref-117">return</a>)<br /> + </p> + <p> + 117/1 See Card v. Case, 5 C.B. 622, 633, 634. + </p> + <p> + 117/2 See Lecture I. p. 23 and n. 3. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-118" id="linknote-118"> + <!-- Note --></a> + </p> + <p class="foot"> + 118 (<a href="#linknoteref-118">return</a>)<br /> + </p> + <p> + 118/1 Y.B. 22 Edw. IV. 8, pl. 24. + </p> + <p> + 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. + </p> + <p> + 118/3 Latch, at p. 120. This is a further illustration of the very + practical grounds on which the law of trespass was settled. + </p> + <p> + 118/4 12 Mod. 332, 335; S.C., 1 Ld. Raym. 606, 608. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-119" id="linknote-119"> + <!-- Note --></a> + </p> + <p class="foot"> + 119 (<a href="#linknoteref-119">return</a>)<br /> + </p> + <p> + 119/1 12 Mod. 335. See Andrew Baker's case, 1 Hale, P.C. 430. + </p> + <p> + 119/2 Besozzi v. Harris, 1 F.&F. 92. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-120" id="linknote-120"> + <!-- Note --></a> + </p> + <p class="foot"> + 120 (<a href="#linknoteref-120">return</a>)<br /> + </p> + <p> + 120/1 2 Ld. Raym. 909; 13 Am. L.R. 609. + </p> + <p> + 120/2 See Grill v. General Iron Screw Collier Co., L.R. 1 C.P. 600, 612, + 614. + </p> + <p> + 120/3 Railroad Co. v. Lockwood, 17 Wall. 357, 383. + </p> + <p> + <a name="linknote-121" id="linknote-121"> + <!-- Note --></a> + </p> + <p class="foot"> + 121 (<a href="#linknoteref-121">return</a>)<br /> + </p> + <p> + 121/1 L.R. 1 C.P. 300. + </p> + <p> + 121/2 See Gorham v. Gross, 125 Mass. 232, 239, bottom. + </p> + <p> + 121/3 Minor v. Sharon, 112 Mass. 477, 487. + </p> + <p> + <a name="linknote-122" id="linknote-122"> + <!-- Note --></a> + </p> + <p class="foot"> + 122 (<a href="#linknoteref-122">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-123" id="linknote-123"> + <!-- Note --></a> + </p> + <p class="foot"> + 123 (<a href="#linknoteref-123">return</a>)<br /> + </p> + <p> + 123/1 See Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, + 120. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-124" id="linknote-124"> + <!-- Note --></a> + </p> + <p class="foot"> + 124 (<a href="#linknoteref-124">return</a>)<br /> + </p> + <p> + 124/1 Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193, 197. + </p> + <p> + <a name="linknote-125" id="linknote-125"> + <!-- Note --></a> + </p> + <p class="foot"> + 125 (<a href="#linknoteref-125">return</a>)<br /> + </p> + <p> + 125/1 See Kearney v. London, Brighton & S. Coast Ry. Co., L.R. 5 Q.B. + 411, 414, 417; S.C., 6 id. 759. + </p> + <p> + 125/2 Byrne v. Boadle, 2 H. & C. 722. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-127" id="linknote-127"> + <!-- Note --></a> + </p> + <p class="foot"> + 127 (<a href="#linknoteref-127">return</a>)<br /> + </p> + <p> + 127/1 7 American Law Review, 654 et seq., July, 1873. + </p> + <p> + <a name="linknote-128" id="linknote-128"> + <!-- Note --></a> + </p> + <p class="foot"> + 128 (<a href="#linknoteref-128">return</a>)<br /> + </p> + <p> + 128/1 Callahan v. Bean, 9 Allen, 401. + </p> + <p> + 128/2 Carter v. Towne, 98 Mass. 567. + </p> + <p> + 128/3 Lovett v. Salem & South Danvers R. R. Co., 9 Allen, 557. + </p> + <p> + 128/4 Back v. Stacey, 2 C.&P. 465. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-135" id="linknote-135"> + <!-- Note --></a> + </p> + <p class="foot"> + 135 (<a href="#linknoteref-135">return</a>)<br /> + </p> + <p> + 135/1 Williamson v. Allison, 2 East, 446. + </p> + <p> + <a name="linknote-136" id="linknote-136"> + <!-- Note --></a> + </p> + <p class="foot"> + 136 (<a href="#linknoteref-136">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-138" id="linknote-138"> + <!-- Note --></a> + </p> + <p class="foot"> + 138 (<a href="#linknoteref-138">return</a>)<br /> + </p> + <p> + 138/1 As to actual knowledge and intent, see Lecture II. p. 57. + </p> + <p> + <a name="linknote-141" id="linknote-141"> + <!-- Note --></a> + </p> + <p class="foot"> + 141 (<a href="#linknoteref-141">return</a>)<br /> + </p> + <p> + 141/1 Cf. Knight v. German, Cro. Eliz. 70; S.C., ib. 134. + </p> + <p> + 141/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 594; Turner v. Ambler, 10 + Q.B. 252, 257, 261. + </p> + <p> + <a name="linknote-142" id="linknote-142"> + <!-- Note --></a> + </p> + <p class="foot"> + 142 (<a href="#linknoteref-142">return</a>)<br /> + </p> + <p> + 142/1 Redfield, C. J. in Barron v. Mason, 31 Vt. 189, 197. + </p> + <p> + 142/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 595. + </p> + <p> + <a name="linknote-143" id="linknote-143"> + <!-- Note --></a> + </p> + <p class="foot"> + 143 (<a href="#linknoteref-143">return</a>)<br /> + </p> + <p> + 143/1 See Burton v. Fulton, 49 Penn. St. 151. + </p> + <p> + <a name="linknote-144" id="linknote-144"> + <!-- Note --></a> + </p> + <p class="foot"> + 144 (<a href="#linknoteref-144">return</a>)<br /> + </p> + <p> + 144/1 Rolfe, B. in Fouldes v. Willoughby, 8 Meeson & Welsby, 540. + </p> + <p> + <a name="linknote-145" id="linknote-145"> + <!-- Note --></a> + </p> + <p class="foot"> + 145 (<a href="#linknoteref-145">return</a>)<br /> + </p> + <p> + 145/1 Supra, pp. 115 et seq. + </p> + <p> + <a name="linknote-147" id="linknote-147"> + <!-- Note --></a> + </p> + <p class="foot"> + 147 (<a href="#linknoteref-147">return</a>)<br /> + </p> + <p> + 147/1 See, e.g., Cooley, Torts, 164. + </p> + <p> + 147/2 Rex v. Dixon, 3 Maule & Selwyn, 11, 15; Reg. v. Hicklin, L.R. 3 + Q.B. 360; 5 C.&P. 266, n. + </p> + <p> + <a name="linknote-148" id="linknote-148"> + <!-- Note --></a> + </p> + <p class="foot"> + 148 (<a href="#linknoteref-148">return</a>)<br /> + </p> + <p> + 148/1 Aleyn, 35; Style, 72; A.D. 1648. + </p> + <p> + <a name="linknote-149" id="linknote-149"> + <!-- Note --></a> + </p> + <p class="foot"> + 149 (<a href="#linknoteref-149">return</a>)<br /> + </p> + <p> + 149/1 1 Kent (12th ed.), 467, n. 1; 6 Am. Law Rev. 723-725; 7 id. 652. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-151" id="linknote-151"> + <!-- Note --></a> + </p> + <p class="foot"> + 151 (<a href="#linknoteref-151">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 151/2 But cf. The Pawashick, 2 Lowell, 142. + </p> + <p> + 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. + </p> + <p> + 151/4 Pickering v. Barkley, Style, 132; Wegerstoffe v. Keene, 1 Strange, + 214, 216, 223; Smith v. Kendall, 6 T. R. 123, 124. + </p> + <p> + <a name="linknote-155" id="linknote-155"> + <!-- Note --></a> + </p> + <p class="foot"> + 155 (<a href="#linknoteref-155">return</a>)<br /> + </p> + <p> + 155/1 Card v. Case, 5 C.B. 622, 634. Cf. Austin (3d ed.), 513. + </p> + <p> + <a name="linknote-156" id="linknote-156"> + <!-- Note --></a> + </p> + <p class="foot"> + 156 (<a href="#linknoteref-156">return</a>)<br /> + </p> + <p> + 156/1 Rylands v. Fletcher, L.R. 3 H.L. 330; supra, p. 116. + </p> + <p> + 156/2 See Marshall v. Welwood, 38 N.J. (9 Vroom), 339; 2 Thompson, + Negligence, 1234, n. 3. + </p> + <p> + <a name="linknote-157" id="linknote-157"> + <!-- Note --></a> + </p> + <p class="foot"> + 157 (<a href="#linknoteref-157">return</a>)<br /> + </p> + <p> + 157/1 Gorham v. Gross, 125 Mass. 232; supra, p. 117. + </p> + <p> + <a name="linknote-158" id="linknote-158"> + <!-- Note --></a> + </p> + <p class="foot"> + 158 (<a href="#linknoteref-158">return</a>)<br /> + </p> + <p> + 158/1 Mitchil v. Alestree, 1 Vent. 295; S.C., 3 Keb. 650; 2 Lev. 172; + supra, p. 94. + </p> + <p> + 158/2 Hammack v. White, 11 C.B. N.S. 588. + </p> + <p> + <a name="linknote-166" id="linknote-166"> + <!-- Note --></a> + </p> + <p class="foot"> + 166 (<a href="#linknoteref-166">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-167" id="linknote-167"> + <!-- Note --></a> + </p> + <p class="foot"> + 167 (<a href="#linknoteref-167">return</a>)<br /> + </p> + <p> + 167/1 XXXI. 16. + </p> + <p> + <a name="linknote-168" id="linknote-168"> + <!-- Note --></a> + </p> + <p class="foot"> + 168 (<a href="#linknoteref-168">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-169" id="linknote-169"> + <!-- Note --></a> + </p> + <p class="foot"> + 169 (<a href="#linknoteref-169">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 169/2 Y.B. 2 Ed. IV. 4, 5, pl. 9; 21 Hen. VII. 39, pl. 49; Bro. Trespass, + pl. 216, 295. + </p> + <p> + 169/3 2 Wms. Saund. 47, n. 1. See above, p. 167. + </p> + <p> + <a name="linknote-170" id="linknote-170"> + <!-- Note --></a> + </p> + <p class="foot"> + 170 (<a href="#linknoteref-170">return</a>)<br /> + </p> + <p> + 170/1 Notes to Saunders, Wilbraham v. Snow, note (h). + </p> + <p> + 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. + </p> + <p> + 170/3 Fitz. Abr. Barre, pl. 130; Y.B. 9 Ed. IV. 34, pl. 9; 12 Am. Law Rev. + 694. + </p> + <p> + <a name="linknote-171" id="linknote-171"> + <!-- Note --></a> + </p> + <p class="foot"> + 171 (<a href="#linknoteref-171">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-172" id="linknote-172"> + <!-- Note --></a> + </p> + <p class="foot"> + 172 (<a href="#linknoteref-172">return</a>)<br /> + </p> + <p> + 172/1 Y.B. 22 Ed. IV. 5, pl. 16. + </p> + <p> + 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.). + </p> + <p> + 172/3 Bro. Trespass, pl, 67 in marg.; cf. Ed. Liutpr. 131, cited supra, p. + 166, n. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-173" id="linknote-173"> + <!-- Note --></a> + </p> + <p class="foot"> + 173 (<a href="#linknoteref-173">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 173/3 2 Camp. 464; cf. Mears v. London & South-Western Railway Co., 11 + C.B. N.S. 849, 854. + </p> + <p> + 173/4 Addison, Torts (4th ed.), 364. + </p> + <p> + <a name="linknote-174" id="linknote-174"> + <!-- Note --></a> + </p> + <p class="foot"> + 174 (<a href="#linknoteref-174">return</a>)<br /> + </p> + <p> + 174/1 Wms. Pers. Prop., 26 (5th ed.), 27 (7th ed.). + </p> + <p> + 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. + </p> + <p> + <a name="linknote-175" id="linknote-175"> + <!-- Note --></a> + </p> + <p class="foot"> + 175 (<a href="#linknoteref-175">return</a>)<br /> + </p> + <p> + 175/1 Cf. Lord v. Price, L.R. 9 Ex. 54, 56, supra, p. 172. + </p> + <p> + 175/2 Supra, p. 167. + </p> + <p> + 175/3 Lib. X. c. 13; cf. I., c. 8. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-176" id="linknote-176"> + <!-- Note --></a> + </p> + <p class="foot"> + 176 (<a href="#linknoteref-176">return</a>)<br /> + </p> + <p> + 176/1 Y.B. 8 Ed. II. 275; Fitz. Detinue, pl. 59. + </p> + <p> + 176/2 2 Ld. Raym. 909. + </p> + <p> + 176/3 Y.B. 13 Ed. IV. 9, pl. 5. See Lecture VI. + </p> + <p> + 176/4 29 Ass. 163, pl. 28. + </p> + <p> + 176/5 Cf. Ratcliff v. Davis, Yelv. 178; Cro. Jac. 244; Noy, 137; 1 Bulstr. + 29. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-177" id="linknote-177"> + <!-- Note --></a> + </p> + <p class="foot"> + 177 (<a href="#linknoteref-177">return</a>)<br /> + </p> + <p> + 177/1 Cf. Abbreviatio Plaeitorum, p. 343, col. 2, rot. 87, 17 Ed. II. + </p> + <p> + <a name="linknote-178" id="linknote-178"> + <!-- Note --></a> + </p> + <p class="foot"> + 178 (<a href="#linknoteref-178">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 178/2 Y.B. 9 Ed. IV, 40, pl. 22. So Brian, in 20 Ed. IV. 11, pl. 10, ad + fin. + </p> + <p> + 178/3 Y.B. 10 Hen. VII. 25, 26, pl. 3. + </p> + <p> + 178/4 Cf. L. Baiw., XV. 5; Y.B. 33 Hen. VI. 1, pl. 3. + </p> + <p> + 178/5 Y.B. 6 Hen. VII. 12, pl. 9; Bro. Detinue, pl. 37; 10 Hen. VI. 21, + pl. 69. + </p> + <p> + 178/6 Y.B. 3 Hen. VII. 4, pl. 16. Cf. 10 Hen. VI. 21, pl. 69. + </p> + <p> + 178/7 Y.B. 11 Hen. IV. 23, 24; 6 Hen. VII. 12, pl. 9. + </p> + <p> + 178/8 Cro. Eliz. 815; 4 Co. Rep. 83 b; Co. Lit. 89; 2 BI. Comm. 452. + </p> + <p> + <a name="linknote-180" id="linknote-180"> + <!-- Note --></a> + </p> + <p class="foot"> + 180 (<a href="#linknoteref-180">return</a>)<br /> + </p> + <p> + 180/1 Savile, 133, 134. Cf. Bro. Accion sur le Case, pl. 103; Dyer, 161 a, + b. + </p> + <p> + 180/2 Nugent v. Smith, 1 C.P. D. 19, Brett, J., at p. 28. + </p> + <p> + 180/3 Nugent v. Smith, 1 C.P. D. 423, Cockburn, C. J., at p. 428. + </p> + <p> + <a name="linknote-181" id="linknote-181"> + <!-- Note --></a> + </p> + <p class="foot"> + 181 (<a href="#linknoteref-181">return</a>)<br /> + </p> + <p> + 181/1 Moore, 462; Owen, 57. + </p> + <p> + 181/2 Dial. 2, ch. 38, A.D. 1530. + </p> + <p> + <a name="linknote-182" id="linknote-182"> + <!-- Note --></a> + </p> + <p class="foot"> + 182 (<a href="#linknoteref-182">return</a>)<br /> + </p> + <p> + 182/1 Keilway, 160, pl. 2 (2 Hen. VIII.); cf. ib. 77b (21 Hen. VII.). + </p> + <p> + 182/2 Y.B. 33 Hen. VI. 1, pl. 3. + </p> + <p> + 182/3 4 Co. Rep. 83 b; Cro. Eliz. 815. + </p> + <p> + <a name="linknote-183" id="linknote-183"> + <!-- Note --></a> + </p> + <p class="foot"> + 183 (<a href="#linknoteref-183">return</a>)<br /> + </p> + <p> + 183/1 Keilway, 160, pl. 2. + </p> + <p> + 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. + </p> + <p> + 183/3 See Lecture VII. + </p> + <p> + <a name="linknote-184" id="linknote-184"> + <!-- Note --></a> + </p> + <p class="foot"> + 184 (<a href="#linknoteref-184">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 184/2 F. N. B. 94 D; infra, p. 203. + </p> + <p> + 184/3 Y.B. 7 Hen. IV. 14; 12 Ed. IV. 13, pl. 9, 10; Dyer, 22 b. + </p> + <p> + 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.). + </p> + <p> + <a name="linknote-185" id="linknote-185"> + <!-- Note --></a> + </p> + <p class="foot"> + 185 (<a href="#linknoteref-185">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-186" id="linknote-186"> + <!-- Note --></a> + </p> + <p class="foot"> + 186 (<a href="#linknoteref-186">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-187" id="linknote-187"> + <!-- Note --></a> + </p> + <p class="foot"> + 187 (<a href="#linknoteref-187">return</a>)<br /> + </p> + <p> + 187/1 Supra, p. 179. + </p> + <p> + 187/2 Boson v. Sandford, Shower, 101; Coggs v. Bernard, infra. + </p> + <p> + 187/3 Symons v. Darknoll, infra. + </p> + <p> + <a name="linknote-188" id="linknote-188"> + <!-- Note --></a> + </p> + <p class="foot"> + 188 (<a href="#linknoteref-188">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 188/2 12 Co. Rep. 64. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-189" id="linknote-189"> + <!-- Note --></a> + </p> + <p class="foot"> + 189 (<a href="#linknoteref-189">return</a>)<br /> + </p> + <p> + 189/1 Hobart, 17; Cro. Jac. 330. See also George v. Wiburn, 1 Roll. Abr. + 6, pl. 4 (A.D. 1638). + </p> + <p> + <a name="linknote-190" id="linknote-190"> + <!-- Note --></a> + </p> + <p class="foot"> + 190 (<a href="#linknoteref-190">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 190/2 Y.B. 22 Hen. VI. 21, pl. 38; supra, p. 188, n. 1. + </p> + <p> + <a name="linknote-191" id="linknote-191"> + <!-- Note --></a> + </p> + <p class="foot"> + 191 (<a href="#linknoteref-191">return</a>)<br /> + </p> + <p> + 191/1 Palmer, 523. + </p> + <p> + 191/2 Palmer, 548. + </p> + <p> + 191/3 Aleyn, 93. + </p> + <p> + 191/4 1 Sid. 36. + </p> + <p> + <a name="linknote-192" id="linknote-192"> + <!-- Note --></a> + </p> + <p class="foot"> + 192 (<a href="#linknoteref-192">return</a>)<br /> + </p> + <p> + 192/1 1 Sid. 244. Cf. Dalston v. Janson, 1 Ld. Raym. 58. + </p> + <p> + 192/2 2 Keb. 866; 3 id. 72, 112, 135; 2 Lev. 69; I Vent. 190, 238; 1 Mod. + 85; Sir T. Raym. 220. + </p> + <p> + <a name="linknote-193" id="linknote-193"> + <!-- Note --></a> + </p> + <p class="foot"> + 193 (<a href="#linknoteref-193">return</a>)<br /> + </p> + <p> + 193/1 2 Keb. 866. See 3 Keb. 74; 1 Mod. 85; Sir T. Raym. 220. + </p> + <p> + 193/2 2 Keb. 72. + </p> + <p> + 193/3 Y.B. 33 Hen. VI. 1; supra, p. 177. + </p> + <p> + 193/4 3 Keble, 73. This is the main point mentioned by Sir T. Raymond and + Levinz. + </p> + <p> + 193/5 Cf. 1 Mod. 85. + </p> + <p> + <a name="linknote-194" id="linknote-194"> + <!-- Note --></a> + </p> + <p class="foot"> + 194 (<a href="#linknoteref-194">return</a>)<br /> + </p> + <p> + 194/1 1 Ventris, 238, citing Southcote's Case in the margin. Cf. 3 Keble, + 135. + </p> + <p> + 194/2 Aleyn, 93; supra, p. 191. + </p> + <p> + 194/3 See also 1 Hale, P.C. 512, 513. + </p> + <p> + <a name="linknote-195" id="linknote-195"> + <!-- Note --></a> + </p> + <p class="foot"> + 195 (<a href="#linknoteref-195">return</a>)<br /> + </p> + <p> + 195/1 King v. Viscount Hertford, 2 Shower, 172, pl. 164; cf. Woodlife's + Case, supra. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-196" id="linknote-196"> + <!-- Note --></a> + </p> + <p class="foot"> + 196 (<a href="#linknoteref-196">return</a>)<br /> + </p> + <p> + 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.). + </p> + <p> + 196/2 12 Mod. 472. + </p> + <p> + 196/3 2 Ld. Raym. 909. + </p> + <p> + <a name="linknote-197" id="linknote-197"> + <!-- Note --></a> + </p> + <p class="foot"> + 197 (<a href="#linknoteref-197">return</a>)<br /> + </p> + <p> + 197/1 Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5 (39 Eliz.). Cf. Keilway, + 160. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-199" id="linknote-199"> + <!-- Note --></a> + </p> + <p class="foot"> + 199 (<a href="#linknoteref-199">return</a>)<br /> + </p> + <p> + 199/1 2 Kent, 598; 1 C.P. D. 429. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-200" id="linknote-200"> + <!-- Note --></a> + </p> + <p class="foot"> + 200 (<a href="#linknoteref-200">return</a>)<br /> + </p> + <p> + 200/1 2 Kent, 597; Forward v. <i>Pittard</i>, 1 T. R. 27. + </p> + <p> + 200/2 Cf. Y.B. 7 Hen. IV. 14; 2 Hen. VII. 11; Keilway, 77 b, 160, pl. 2, + and other cases already cited. + </p> + <p> + 200/3 Y.B. 41 Ed. III. 3, pl. 8. + </p> + <p> + 200/4 Y.B. 33 Hen. YI. 1, pl. 3. + </p> + <p> + 200/5 Reg. Brev. 107 a, 108 a, 110 a, b; entries cited 1 T. R. 29. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-201" id="linknote-201"> + <!-- Note --></a> + </p> + <p class="foot"> + 201 (<a href="#linknoteref-201">return</a>)<br /> + </p> + <p> + 201/1 1 Wilson, 282; cf. 2 Kent (12th ed.), 596, n. 1, b. + </p> + <p> + 201/2 Y.B. 33 Hen. VI. 1, pl. 3. + </p> + <p> + <a name="linknote-202" id="linknote-202"> + <!-- Note --></a> + </p> + <p class="foot"> + 202 (<a href="#linknoteref-202">return</a>)<br /> + </p> + <p> + 202/1 Mouse's Case, 12 Co. Rep. 63. + </p> + <p> + 202/2 Bird v. Astcock, 2 Bulstr. 280; cf. Dyer, 33 a, pl. 10; Keighley's + Case, 10 Co. Rep. 139 b, 140. + </p> + <p> + 202/3 Y.B. 40 Ed. III. 5, 6, pl. 11; see also Willams v. Hide, Palmer, + 548; Shep. Touchst. 173. + </p> + <p> + <a name="linknote-203" id="linknote-203"> + <!-- Note --></a> + </p> + <p class="foot"> + 203 (<a href="#linknoteref-203">return</a>)<br /> + </p> + <p> + 203/1 See Safe Delcosit Company of Pittsburgh v. Pollock, 85 Penn. 391. + </p> + <p> + 203/2 Paston, J., in Y.B. 21 Hen. VI. 55; Keilway, 50 a, pl. 4; Hardres, + 163. + </p> + <p> + 203/3 Lane v. Cotton, 1 Ld. Raym. 646, 654; 1 Salk. 18; 12 Mod. 484. + </p> + <p> + <a name="linknote-204" id="linknote-204"> + <!-- Note --></a> + </p> + <p class="foot"> + 204 (<a href="#linknoteref-204">return</a>)<br /> + </p> + <p> + 204/1 Forward v. Pittard, 1 T. R. 27, 83. + </p> + <p> + <a name="linknote-205" id="linknote-205"> + <!-- Note --></a> + </p> + <p class="foot"> + 205 (<a href="#linknoteref-205">return</a>)<br /> + </p> + <p> + 205/1 Printing and Numerical Registering Co. v. Sampson, L.R. 19 Eq. 462, + 465. + </p> + <p> + <a name="linknote-207" id="linknote-207"> + <!-- Note --></a> + </p> + <p class="foot"> + 207 (<a href="#linknoteref-207">return</a>)<br /> + </p> + <p> + 207/1 Possession, Section 6, Eng. tr., pp. 27, 28. + </p> + <p> + 207/2 R. d. Besitzes, 487. + </p> + <p> + <a name="linknote-208" id="linknote-208"> + <!-- Note --></a> + </p> + <p class="foot"> + 208 (<a href="#linknoteref-208">return</a>)<br /> + </p> + <p> + 208/1 R. d. Besitzes, 490, 491. + </p> + <p> + 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. + </p> + <p> + 208/3 Institutionen, Sections 224, 226; Windscheid, Pand. Section 148, n. + 6. + </p> + <p> + 208/4 Windscheid, Pand. Section 148, n. 6. + </p> + <p> + 208/5 Besitzklagen, 276, 279. + </p> + <p> + <a name="linknote-209" id="linknote-209"> + <!-- Note --></a> + </p> + <p class="foot"> + 209 (<a href="#linknoteref-209">return</a>)<br /> + </p> + <p> + 209/1 Bruns, R. d. Besitzes, 499. + </p> + <p> + 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.). + </p> + <p> + 209/3 D. 41.2.3, Section 20; 13.6.8 & 9. Cf. D. 41.1.9, Section 5. + </p> + <p> + <a name="linknote-210" id="linknote-210"> + <!-- Note --></a> + </p> + <p class="foot"> + 210 (<a href="#linknoteref-210">return</a>)<br /> + </p> + <p> + 210/1 But see Ihering, Geist d. Rom. R., Section 62, French tr., IV. p. + 51. + </p> + <p> + 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. + </p> + <p> + 210/3 See, further, Bracton, fol. 413; Y.B. 6 Hen. VII. 9, pl. 4. + </p> + <p> + <a name="linknote-211" id="linknote-211"> + <!-- Note --></a> + </p> + <p class="foot"> + 211 (<a href="#linknoteref-211">return</a>)<br /> + </p> + <p> + 211/1 Infra, p. 243. + </p> + <p> + 211/2 R. d. Besitzes, 494. + </p> + <p> + <a name="linknote-212" id="linknote-212"> + <!-- Note --></a> + </p> + <p class="foot"> + 212 (<a href="#linknoteref-212">return</a>)<br /> + </p> + <p> + 212/1 Rogers v. Spence, 13 M. & W. 579, 581. + </p> + <p> + 212/2 Webb v. Fox, 7 T. R. 391, 397. + </p> + <p> + 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. + </p> + <p> + 212/4 Swift v. Gifford, 2 Lowell, 110. + </p> + <p> + 212/5 1 Taunt. 248. + </p> + <p> + <a name="linknote-213" id="linknote-213"> + <!-- Note --></a> + </p> + <p class="foot"> + 213 (<a href="#linknoteref-213">return</a>)<br /> + </p> + <p> + 213/1 Cf. Wake, Evolution of Morality, Part I. ch. 4, pp. 296 et seq. + </p> + <p> + <a name="linknote-215" id="linknote-215"> + <!-- Note --></a> + </p> + <p class="foot"> + 215 (<a href="#linknoteref-215">return</a>)<br /> + </p> + <p> + 215/1 Asher v. Whitlock, L.R. 1 Q.B.1. + </p> + <p> + 215/2 People v. Shearer, 30 Cal. 645. + </p> + <p> + <a name="linknote-217" id="linknote-217"> + <!-- Note --></a> + </p> + <p class="foot"> + 217 (<a href="#linknoteref-217">return</a>)<br /> + </p> + <p> + 217/1 2 Kent's Comm. 349, citing Pierson v. Post, 3 Caines, (N. Y.) 175; + Buster v. Newkirk, 20 Johnson, (N. Y.) 75. + </p> + <p> + 217/2 Young v. Hichens, 6 Q.B.606. + </p> + <p> + 217/3 2 Kent's Comm. 349, n. (d). + </p> + <p> + <a name="linknote-218" id="linknote-218"> + <!-- Note --></a> + </p> + <p class="foot"> + 218 (<a href="#linknoteref-218">return</a>)<br /> + </p> + <p> + 218/1 Inst. 2. 1, Section 13. + </p> + <p> + 218/2 Swift v. Gifford, 2 Lowell, 110. + </p> + <p> + 218/3 Savigny, R. d. Besitzes, Section 21. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-219" id="linknote-219"> + <!-- Note --></a> + </p> + <p class="foot"> + 219 (<a href="#linknoteref-219">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 219/2 Supra, p. 207; 2 Puchta, Inst. Section 226 (5th ed.), pp. 545, 546. + </p> + <p> + <a name="linknote-221" id="linknote-221"> + <!-- Note --></a> + </p> + <p class="foot"> + 221 (<a href="#linknoteref-221">return</a>)<br /> + </p> + <p> + 221/1 15 Jur. 1079; 21 L. J. Q.B.75; 7 Eng. L. & Eq. 424. + </p> + <p> + <a name="linknote-222" id="linknote-222"> + <!-- Note --></a> + </p> + <p class="foot"> + 222 (<a href="#linknoteref-222">return</a>)<br /> + </p> + <p> + 222/1 11 Allen, 548. + </p> + <p> + <a name="linknote-223" id="linknote-223"> + <!-- Note --></a> + </p> + <p class="foot"> + 223 (<a href="#linknoteref-223">return</a>)<br /> + </p> + <p> + 223/1 Kincaid v. Eaton, 98 Mass. 139. + </p> + <p> + 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. + </p> + <p> + 223/3 Reg. v. Rowe, Bell, C.C. 93. + </p> + <p> + <a name="linknote-224" id="linknote-224"> + <!-- Note --></a> + </p> + <p class="foot"> + 224 (<a href="#linknoteref-224">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 224/2 3 Inst. 107; 1 Hale, P.C. 504, 505; 2 Bishop, Crim. Law, Sections + 834, 860 (6th ed.). + </p> + <p> + 224/3 Reg. v. Middleton, L.R. 2 C.C. 38, 55. Cf. Halliday v. Holgate, L.R. + 3 Ex. 299, 302. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-225" id="linknote-225"> + <!-- Note --></a> + </p> + <p class="foot"> + 225 (<a href="#linknoteref-225">return</a>)<br /> + </p> + <p> + 225/1 Durfee v. Jones, 11 R. I. 588. + </p> + <p> + 225/2 Reg. v. Rowe, Bell, C.C. 93, stated above. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-226" id="linknote-226"> + <!-- Note --></a> + </p> + <p class="foot"> + 226 (<a href="#linknoteref-226">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 226/3 Y.B. 21 Hen. VII. 14, pl. 21; 13 Co. Rep. 69. + </p> + <p> + <a name="linknote-227" id="linknote-227"> + <!-- Note --></a> + </p> + <p class="foot"> + 227 (<a href="#linknoteref-227">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-228" id="linknote-228"> + <!-- Note --></a> + </p> + <p class="foot"> + 228 (<a href="#linknoteref-228">return</a>)<br /> + </p> + <p> + 228/1 Bracton, fol. 6 a, Section 3, 12 a, 17 a, Cap. V. ad fin., 25 a, b, + etc.; Pucbra, Inst. Section 228. + </p> + <p> + 228/2 See also 7 Am. Law Rev. 62 et seq.; 10 Am. Law Rev. 431; 2 Kent, + Comm. (12th ed.), 260, n. 1. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-229" id="linknote-229"> + <!-- Note --></a> + </p> + <p class="foot"> + 229 (<a href="#linknoteref-229">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-230" id="linknote-230"> + <!-- Note --></a> + </p> + <p class="foot"> + 230 (<a href="#linknoteref-230">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 230/2 Bac. Ahr. Master and Servant, K; Smith, Master and Servant (3d ed.), + 260, n. (t). + </p> + <p> + 230/3 Clapp v. Kemp, 122 Mass. 481; Murray v. Currie, L.R. 6 C.P. 24, 28; + Hill v. Morey, 26 Vt. 178. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-231" id="linknote-231"> + <!-- Note --></a> + </p> + <p class="foot"> + 231 (<a href="#linknoteref-231">return</a>)<br /> + </p> + <p> + 231/1 Bush v. Steinman, 1 B. & P. 404, 409. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 231/3 7 Am. Law Rev. 63 (Oct. 1872). + </p> + <p> + <a name="linknote-232" id="linknote-232"> + <!-- Note --></a> + </p> + <p class="foot"> + 232 (<a href="#linknoteref-232">return</a>)<br /> + </p> + <p> + 232/1 D. 44. 2. 4, note 17, Elzevir ed. + </p> + <p> + 232/2 Hunter's Roman Law, 431. + </p> + <p> + 232/3 Ancient Hist. of Inst. 235. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-233" id="linknote-233"> + <!-- Note --></a> + </p> + <p class="foot"> + 233 (<a href="#linknoteref-233">return</a>)<br /> + </p> + <p> + 233/1 Ward v. Macaulay, 4 T. R. 489, 490. Cf. as to factors supra, p. 228. + </p> + <p> + 233/2 Berndtson v. Strang, L.R. 3 Ch. 588, 590. + </p> + <p> + 233/3 Blackburn, Sale, 33; Marvin v. Wallis, 6 El. & Bl. 726. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-234" id="linknote-234"> + <!-- Note --></a> + </p> + <p class="foot"> + 234 (<a href="#linknoteref-234">return</a>)<br /> + </p> + <p> + 234/1 See, e. g., Farina v. Home, 16 M. & W. 119, 123. + </p> + <p> + <a name="linknote-235" id="linknote-235"> + <!-- Note --></a> + </p> + <p class="foot"> + 235 (<a href="#linknoteref-235">return</a>)<br /> + </p> + <p> + 235/1 McGahey v. Moore, 3 Ired. (N. C.) 35. + </p> + <p> + 235/2 Reader v. Moody, 3 Jones, (N. C.) 372. Cf. Basset v. Maynard, Cro. + Eliz. 819, 820. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-236" id="linknote-236"> + <!-- Note --></a> + </p> + <p class="foot"> + 236 (<a href="#linknoteref-236">return</a>)<br /> + </p> + <p> + 236/1 Cf. Bruns, R. d. Besitzes, 503. + </p> + <p> + <a name="linknote-237" id="linknote-237"> + <!-- Note --></a> + </p> + <p class="foot"> + 237 (<a href="#linknoteref-237">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-238" id="linknote-238"> + <!-- Note --></a> + </p> + <p class="foot"> + 238 (<a href="#linknoteref-238">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-239" id="linknote-239"> + <!-- Note --></a> + </p> + <p class="foot"> + 239 (<a href="#linknoteref-239">return</a>)<br /> + </p> + <p> + 239/1 Gardiner v. Thibodeau, 14 La. An. 732. + </p> + <p> + 239/2 Bruns, 483. + </p> + <p> + <a name="linknote-240" id="linknote-240"> + <!-- Note --></a> + </p> + <p class="foot"> + 240 (<a href="#linknoteref-240">return</a>)<br /> + </p> + <p> + 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.). + </p> + <p> + 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. + </p> + <p> + <a name="linknote-241" id="linknote-241"> + <!-- Note --></a> + </p> + <p class="foot"> + 241 (<a href="#linknoteref-241">return</a>)<br /> + </p> + <p> + 241/1 See Lecture XI. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-242" id="linknote-242"> + <!-- Note --></a> + </p> + <p class="foot"> + 242 (<a href="#linknoteref-242">return</a>)<br /> + </p> + <p> + 242/1 Jefferies v. Great Western Railway Co., 5 El. & B1. 802. Cf. + Armory v. Delamirie, 1 Strange, 505, 1 Sm. L. C. + </p> + <p> + 242/2 Co. Lit. 145 b. + </p> + <p> + 242/3 2 Wms. Saund. 47 b, note 1, to Wilbraham v. Snow. + </p> + <p> + 242/4 Bract., fol. 150 b, 151; supra, p. 168; Y.B. 22 Ed. I. 466-468. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-243" id="linknote-243"> + <!-- Note --></a> + </p> + <p class="foot"> + 243 (<a href="#linknoteref-243">return</a>)<br /> + </p> + <p> + 243/1 Y.B. 11 Hen. IV. 17, pl. 39. + </p> + <p> + 243/2 Y.B. 21 Hen. VII. 14 b, pl. 23. + </p> + <p> + 243/3 Godbolt, 173, pl. 239. Cf. 11 Hen. IV. 17, pl. 39. + </p> + <p> + 243/4 Bro. Abr. Trespass, pl. 433, cit. Y.B. 13 Hen. VII. 10. + </p> + <p> + 243/5 Kelyng, 89. See, further, Buller, N. P. 33. + </p> + <p> + 243/6 Lecture V.; Y.B. 20 Hen. VII. 1, pl. 11. + </p> + <p> + 243/7 Y.B. 21 lien. VII. 14 b, pl. 23. + </p> + <p> + 243/8 1 Roll. Abr. 4, 5 (I), pl. 1. Cf. Arnold v. Jefferson, 1 Ld. Raym. + 275. + </p> + <p> + <a name="linknote-244" id="linknote-244"> + <!-- Note --></a> + </p> + <p class="foot"> + 244 (<a href="#linknoteref-244">return</a>)<br /> + </p> + <p> + 244/1 29 Ass., fol. 163, pl. 28. + </p> + <p> + 244/2 Southcote's Case, 4 Co. Rep. 83 b. + </p> + <p> + 244/3 Mores v. Conham, Owen, 123. Cf. Ratcliff v. Davis, I Bulstr. 29. + </p> + <p> + 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. + </p> + <p> + 244/5 Graham v. Peat, 1 East, 244. + </p> + <p> + <a name="linknote-245" id="linknote-245"> + <!-- Note --></a> + </p> + <p class="foot"> + 245 (<a href="#linknoteref-245">return</a>)<br /> + </p> + <p> + 245/1 As to this period see Heusler, Gewere. Cf. Laveleye, Propriete, 166. + </p> + <p> + <a name="linknote-248" id="linknote-248"> + <!-- Note --></a> + </p> + <p class="foot"> + 248 (<a href="#linknoteref-248">return</a>)<br /> + </p> + <p> + 248/1 2 Hist. du Droit Franc., pp. 146 et seq, 152. + </p> + <p> + 248/2 Anciens Poetes de la France, (Guessard,) p. 71. + </p> + <p> + 248/3 Page 283; cf. 284, cxviii, et seq., 44, lxix. + </p> + <p> + <a name="linknote-249" id="linknote-249"> + <!-- Note --></a> + </p> + <p class="foot"> + 249 (<a href="#linknoteref-249">return</a>)<br /> + </p> + <p> + 249/1 Sohm, Proc. d. Lex. Sal., Sections 15, 23-25, tr. Thevenin, pp. 80, + 105, 122. + </p> + <p> + 249/2 Essays in A. S. Law, p. 292. + </p> + <p> + 249/3 Cap. VIII., Merkel, p. 48. + </p> + <p> + 249/4 Cap. LXXXIX. Section 3, Essays in A. S. Law, p. 291. + </p> + <p> + 249/5 Chap. IV. Section 16. + </p> + <p> + <a name="linknote-250" id="linknote-250"> + <!-- Note --></a> + </p> + <p class="foot"> + 250 (<a href="#linknoteref-250">return</a>)<br /> + </p> + <p> + 250/1 Fitzh. Abr. Mainprise, pl. 12 (H. 33 Ed. III.); Staundforde, P.C. + 65. + </p> + <p> + 250/2 Abbr. Plac., p. 343, col 2, rot. 37, 17 Ed. II. + </p> + <p> + 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. + </p> + <p> + 250/4 Highmore, Bail, p. 199; Jacob, L. D., "Bail." Cf. 2 Laferriere, + Hist. du Droit Franc., p. 148. + </p> + <p> + 250/5 Highmore, p. 195. + </p> + <p> + 250/6 Ibid., p. 200. + </p> + <p> + <a name="linknote-252" id="linknote-252"> + <!-- Note --></a> + </p> + <p class="foot"> + 252 (<a href="#linknoteref-252">return</a>)<br /> + </p> + <p> + 252/1 Vermoegensrechtlichen Klagen. + </p> + <p> + <a name="linknote-253" id="linknote-253"> + <!-- Note --></a> + </p> + <p class="foot"> + 253 (<a href="#linknoteref-253">return</a>)<br /> + </p> + <p> + 253/1 II. c. 60, Section 25. Glanvill's "justa debendi causa" (Lib. X. c. + 4) seems remote from consideration. + </p> + <p> + <a name="linknote-254" id="linknote-254"> + <!-- Note --></a> + </p> + <p class="foot"> + 254 (<a href="#linknoteref-254">return</a>)<br /> + </p> + <p> + 254/1 Y.B. 3 Hen. VI. 36. + </p> + <p> + 254/2 Y.B. 37 Hen. VI. 13, pl. 3. + </p> + <p> + 254/3 Y.B. 37 Hen. VI. 8, pl. 33. + </p> + <p> + 254/4 Glanv., Lib. X. c. 12; Bract, fol. 400b, Section 10; 22 Ass., pl. + 70, fol. 101. + </p> + <p> + <a name="linknote-255" id="linknote-255"> + <!-- Note --></a> + </p> + <p class="foot"> + 255 (<a href="#linknoteref-255">return</a>)<br /> + </p> + <p> + 255/1 Essays in A. S. Law, 187. + </p> + <p> + <a name="linknote-256" id="linknote-256"> + <!-- Note --></a> + </p> + <p class="foot"> + 256 (<a href="#linknoteref-256">return</a>)<br /> + </p> + <p> + 256/1 I. 45; III. 10. + </p> + <p> + 256/2 Lib. X. e. 17. Suit, secta, was the term applied to the persons + whose oath the party tendered. + </p> + <p> + <a name="linknote-257" id="linknote-257"> + <!-- Note --></a> + </p> + <p class="foot"> + 257 (<a href="#linknoteref-257">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 257/4 Cf. Glanv., Lib. IV. c. 6. + </p> + <p> + <a name="linknote-258" id="linknote-258"> + <!-- Note --></a> + </p> + <p class="foot"> + 258 (<a href="#linknoteref-258">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-259" id="linknote-259"> + <!-- Note --></a> + </p> + <p class="foot"> + 259 (<a href="#linknoteref-259">return</a>)<br /> + </p> + <p> + 259/1 Sharington v. Strotton, Plowden, 298, at p. 302, M. 7 & 8 Eliz. + </p> + <p> + 259/2 Pillans v. Van Mierop, 3 Burrow, 1663, 1669. + </p> + <p> + <a name="linknote-260" id="linknote-260"> + <!-- Note --></a> + </p> + <p class="foot"> + 260 (<a href="#linknoteref-260">return</a>)<br /> + </p> + <p> + 260/1 1 Thorpe, Anc. Laws, 181, Oaths, 7, 8. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-261" id="linknote-261"> + <!-- Note --></a> + </p> + <p class="foot"> + 261 (<a href="#linknoteref-261">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 261/2 Bract., fol. 315 b, Section 6, 400 b; Coke, 2d Inst., 44, 45. + </p> + <p> + <a name="linknote-262" id="linknote-262"> + <!-- Note --></a> + </p> + <p class="foot"> + 262 (<a href="#linknoteref-262">return</a>)<br /> + </p> + <p> + 262/1 Glanv., Lib. X. c. 12 (Beames, p. 263); Bract., fol. 100 b, Section + 9. + </p> + <p> + 262/2 Glanv., Lib. X. c. 17 (Beames, p. 272). + </p> + <p> + 262/3 Bract., fol. 400 b, Section 9. + </p> + <p> + 262/4 Cf. Y.B. 20 Ed. I. 304, and 34 Ed. II., 150, 152; ib. 330, 332; 35 + Ed. I. 546. + </p> + <p> + <a name="linknote-263" id="linknote-263"> + <!-- Note --></a> + </p> + <p class="foot"> + 263 (<a href="#linknoteref-263">return</a>)<br /> + </p> + <p> + 263/1 Bract., fol. 400 b, Section 8. + </p> + <p> + 263/2 Cf. Y.B. 20 Ed. I. 304. + </p> + <p> + 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. + </p> + <p> + 263/4 Y.B. 18 Ed. II. 582; 17 Ed. III. 48 b, pl. 14. + </p> + <p> + <a name="linknote-264" id="linknote-264"> + <!-- Note --></a> + </p> + <p class="foot"> + 264 (<a href="#linknoteref-264">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 264/2 Cf. Bro..Acc. sur le Case, pl. 5; S.C., 27 Hen. VIII. 24, 25, pl. 3. + </p> + <p> + 264/3 Y.B. 18 Ed. III. 13, pl. 7. + </p> + <p> + 264/4 Y.B. 44 Ed. III. 21, pl. 23. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-265" id="linknote-265"> + <!-- Note --></a> + </p> + <p class="foot"> + 265 (<a href="#linknoteref-265">return</a>)<br /> + </p> + <p> + 265/1 Y.B. 17 Ed. III. 48 b, pl. 14. Cf. Fortescue (Amos), 67, n.; 3 Bl. + Comm. 295. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-266" id="linknote-266"> + <!-- Note --></a> + </p> + <p class="foot"> + 266 (<a href="#linknoteref-266">return</a>)<br /> + </p> + <p> + 266/1 See for an illustration 2 Kent's Comm. (12th ed.), 451, n. 1 (b). + </p> + <p> + 266/2 Repromittatur, but cf. pro servitio tuo vel pro homagio, Fleta, II. + c. 60, Section 25. + </p> + <p> + <a name="linknote-267" id="linknote-267"> + <!-- Note --></a> + </p> + <p class="foot"> + 267 (<a href="#linknoteref-267">return</a>)<br /> + </p> + <p> + 267/1 Y.B. 29 Ed. III. 25, 26. But cf. 48 Ed. III. 3, pl. 6. + </p> + <p> + 267/2 19 R. II., Fitzh. Abr. Dett, pl. 166. + </p> + <p> + 267/3 Y.B. 12 Hen. IV. 17, pl. 13, ad fin. + </p> + <p> + 267/4 Y.B. 9 Hen. V. 14, pl. 23. + </p> + <p> + 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. + </p> + <p> + 267/6 Y.B. 3 Hen, VI. 36, pl. 33. + </p> + <p> + <a name="linknote-268" id="linknote-268"> + <!-- Note --></a> + </p> + <p class="foot"> + 268 (<a href="#linknoteref-268">return</a>)<br /> + </p> + <p> + 268/1 Y.B. 37 Hen. VI. 8, pl. 18. + </p> + <p> + 268/2 E. g., Rolfe in Y.B. 3 Hen. VI. 36, pl. 23. + </p> + <p> + <a name="linknote-269" id="linknote-269"> + <!-- Note --></a> + </p> + <p class="foot"> + 269 (<a href="#linknoteref-269">return</a>)<br /> + </p> + <p> + 269/1 Y.B. 37 Hen. VI. 8, pl. 18. Cf. Bro. Feoffements al Uses, pl. 54; + Plowden, 301. + </p> + <p> + 269/2 Y.B. 15 Ed. IV. 32, pl. 14; (S.C., 14 Ed. IV. 6, pl. 3;) 17 Ed. 4, + pl. 4. + </p> + <p> + 269/3 Cf. Y.B. 37 Hen. VI. 8, pl. 18; 17 Ed. IV. 4, 5; Plowden, 305, 306. + </p> + <p> + 269/4 Y.B. 3 Hen. VI. 36, pl. 33. + </p> + <p> + 269/5 Y.B. 37 Hen. VI. 13. + </p> + <p> + 269/6 As to requirement of certain sum, cf. Y.B. 12 Ed. II. 375; Fleta, + II. c. 60, Section 24. + </p> + <p> + <a name="linknote-270" id="linknote-270"> + <!-- Note --></a> + </p> + <p class="foot"> + 270 (<a href="#linknoteref-270">return</a>)<br /> + </p> + <p> + 270/1 Y.B. 29 Ed. III. 25, 26; 40 Ed. III. 24, pl. 27; 43 Ed. II1. 2, pl. + 5. + </p> + <p> + 270/2 Y.B. 43 Ed. III. 2, pl. 5; 46 Ed. III. 25, pl. 10; 50 Ed. III. 5, + pl. 11. + </p> + <p> + 270/3 Cf. Glanv., Lib. X. c. 8; Fleta, II. c. 60, Section 25. + </p> + <p> + 270/4 Y.B. 35 Ed. I. 454; 12 Ed. II. 375. + </p> + <p> + <a name="linknote-272" id="linknote-272"> + <!-- Note --></a> + </p> + <p class="foot"> + 272 (<a href="#linknoteref-272">return</a>)<br /> + </p> + <p> + 272/1 Ducange, "Sigilium"; Ingulph. 901. + </p> + <p> + 272/2 Big. Pl. Ang. Norm. 177. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 272/5 Y.B. 7 Ed. I. 242. Cf. 35 Ed. I. 452. + </p> + <p> + 272/6 Cf. Bract., fol. 100 b, Section 9. + </p> + <p> + 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." + </p> + <p> + 272/8 Y.B. 30 Ed. I. 158; Fleta, II. c. 60, Section 25, p. 130. + </p> + <p> + <a name="linknote-273" id="linknote-273"> + <!-- Note --></a> + </p> + <p class="foot"> + 273 (<a href="#linknoteref-273">return</a>)<br /> + </p> + <p> + 273/1 45 Ed. III. 24, pl. 30. + </p> + <p> + 273/2 Bract., fol. 100 b, Section 9. + </p> + <p> + <a name="linknote-275" id="linknote-275"> + <!-- Note --></a> + </p> + <p class="foot"> + 275 (<a href="#linknoteref-275">return</a>)<br /> + </p> + <p> + 275/1 Cf. 5 Co. Rep. 13 b, 14 a, with 1 Roll. Rep. 126, 128; Y.B. 43 Ed. + III 30, pl. 15. + </p> + <p> + 275/2 Y.B. 46 Ed. III. 19, pl. 19; S.C. Bro. Acc. sur le Case, pl. 22. + </p> + <p> + 275/3 Y.B. 22 Ass., pl. 4i, fol. 94. + </p> + <p> + <a name="linknote-276" id="linknote-276"> + <!-- Note --></a> + </p> + <p class="foot"> + 276 (<a href="#linknoteref-276">return</a>)<br /> + </p> + <p> + 276/1 Y.B. 43 Ed. III. 33, pl. 38. + </p> + <p> + <a name="linknote-277" id="linknote-277"> + <!-- Note --></a> + </p> + <p class="foot"> + 277 (<a href="#linknoteref-277">return</a>)<br /> + </p> + <p> + 277/1 Y.B. 11 Hen. IV. 33, pl. 60. + </p> + <p> + 277/2 Y.B. 3 Hen. VI. 36, pl. 33. + </p> + <p> + 277/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60. Cf. 3 Hen. VI. 36, + 83. + </p> + <p> + <a name="linknote-279" id="linknote-279"> + <!-- Note --></a> + </p> + <p class="foot"> + 279 (<a href="#linknoteref-279">return</a>)<br /> + </p> + <p> + 279/1 Cf. 19 Hen. VI. 49, pl. 5 ad fin., Newton, C. J. + </p> + <p> + <a name="linknote-280" id="linknote-280"> + <!-- Note --></a> + </p> + <p class="foot"> + 280 (<a href="#linknoteref-280">return</a>)<br /> + </p> + <p> + 280/1 Cf. Y.B. 48 Ed. III. 6, pl. 11. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-281" id="linknote-281"> + <!-- Note --></a> + </p> + <p class="foot"> + 281 (<a href="#linknoteref-281">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-282" id="linknote-282"> + <!-- Note --></a> + </p> + <p class="foot"> + 282 (<a href="#linknoteref-282">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 282/2 Y.B. 3 Hen. VI. 36, pl. 33. + </p> + <p> + 282/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60; 3 Hen. VI. 36, pl. + 33. + </p> + <p> + 282/4 3 Hen. VI. 36, pl. 33. + </p> + <p> + <a name="linknote-283" id="linknote-283"> + <!-- Note --></a> + </p> + <p class="foot"> + 283 (<a href="#linknoteref-283">return</a>)<br /> + </p> + <p> + 283/1 Y.B. 14 Hen. VI. 18, pl. 58. + </p> + <p> + 283/2 Ibid. Cf. 48 Ed. III 6, pl. 11. + </p> + <p> + 283/3 Y.B. 19 Hen. VI. 49, pl. 5. See, further, Y.B. 20 Hen. VI. 25, pl. + 11. + </p> + <p> + <a name="linknote-284" id="linknote-284"> + <!-- Note --></a> + </p> + <p class="foot"> + 284 (<a href="#linknoteref-284">return</a>)<br /> + </p> + <p> + 284/1 Cf. Y.B. 3 Hen. VI. 36, pl. 33. + </p> + <p> + 284/2 Y.B. 2 Hen. VII. 11, pl. 9. Cf. 20 Hen. VI. 34, pl. 4. + </p> + <p> + 284/3 Cf. Y.B. 14 Hen. VI. 18, pl. 58; 21 Hen. VII. 41, pl. 66, Fineux, C. + J. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-285" id="linknote-285"> + <!-- Note --></a> + </p> + <p class="foot"> + 285 (<a href="#linknoteref-285">return</a>)<br /> + </p> + <p> + 285/1 Sands v. Trevilian, Cro. Car. 193, 194 (Mich. 4 Car. I., A.D. 1629). + </p> + <p> + 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. + </p> + <p> + 285/3 Y.B. 21 Hen. VII. 30, pl. 5; ib. 41, pl. 66. + </p> + <p> + 285/4 Y.B. 3 Hen. VI. 36, pl. 33. + </p> + <p> + <a name="linknote-286" id="linknote-286"> + <!-- Note --></a> + </p> + <p class="foot"> + 286 (<a href="#linknoteref-286">return</a>)<br /> + </p> + <p> + 286/1 Sharington v. Strotton, Plowden, 298 (Mich. 7 & 8 Eliz.); ib. + 309, note on "the civil law." + </p> + <p> + 286/2 Hunt v. Bate, 3 Dyer, 272 a (10 Eliz., A.D. 1568). + </p> + <p> + 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. + </p> + <p> + 286/4 Sidenham v. Worlington, 2 Leon. 224, A.D. 1585. + </p> + <p> + <a name="linknote-287" id="linknote-287"> + <!-- Note --></a> + </p> + <p class="foot"> + 287 (<a href="#linknoteref-287">return</a>)<br /> + </p> + <p> + 287/1 Read v. Baxter, 3 Dyer, 272 b, n. (26 & 27 Eliz.). Cf. Richards + and Bartlet's Case, 1 Leon. 19 (26 Eliz.). + </p> + <p> + 287/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24, 25, pl. + 3; 3 Dyer, 272, n. + </p> + <p> + 287/3 Marsh v. Rainsford, 3 Dyer, 272 b, n.; S.C., 2 Leon. 111, and Cro. + Eliz. 59, sub. nom. Marsh v. Kavenford. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-288" id="linknote-288"> + <!-- Note --></a> + </p> + <p class="foot"> + 288 (<a href="#linknoteref-288">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-290" id="linknote-290"> + <!-- Note --></a> + </p> + <p class="foot"> + 290 (<a href="#linknoteref-290">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 290/2 Riches and Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, Yelv. 128. + </p> + <p> + <a name="linknote-291" id="linknote-291"> + <!-- Note --></a> + </p> + <p class="foot"> + 291 (<a href="#linknoteref-291">return</a>)<br /> + </p> + <p> + 291/1 Bainbridge v. Firmstone, 8 Ad. & El. 743, A.D. 1838. + </p> + <p> + 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. + </p> + <p> + 291/3 Wheatley v. Low, Cro. Jac. 668, A.D. 1623. Cf. Byne and Playne's + Case, 1 Leon. 220, 221 (32 & 33 Eliz.). + </p> + <p> + 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. + </p> + <p> + <a name="linknote-292" id="linknote-292"> + <!-- Note --></a> + </p> + <p class="foot"> + 292 (<a href="#linknoteref-292">return</a>)<br /> + </p> + <p> + 292/1 Supra, pp. 196, 197. See also Lecture VII. + </p> + <p> + 292/2 Byles, J., in Shadwell v. Shadwell, 30 L. J. C.P. 145, 149. + </p> + <p> + 292/3 Shadwell v. Shadwell, ubi supra; Burr v. Wilcox, 13 Allen, 269, 272, + 273. + </p> + <p> + 292/4 Thomas v. Thomas, 2 Q.B.851. + </p> + <p> + <a name="linknote-293" id="linknote-293"> + <!-- Note --></a> + </p> + <p class="foot"> + 293 (<a href="#linknoteref-293">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-294" id="linknote-294"> + <!-- Note --></a> + </p> + <p class="foot"> + 294 (<a href="#linknoteref-294">return</a>)<br /> + </p> + <p> + 294/1 Ellis v. Clark, 110 Mass. 389. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-296" id="linknote-296"> + <!-- Note --></a> + </p> + <p class="foot"> + 296 (<a href="#linknoteref-296">return</a>)<br /> + </p> + <p> + 296/1 Y.B. 29 Ed. III. 25, 26. + </p> + <p> + 296/2 19 R. II., Fitzh. Abr. Dett, pl. 166. + </p> + <p> + 296/3 Hunt v. Bate, Dyer, 272, A.D. 1568. + </p> + <p> + <a name="linknote-297" id="linknote-297"> + <!-- Note --></a> + </p> + <p class="foot"> + 297 (<a href="#linknoteref-297">return</a>)<br /> + </p> + <p> + 297/1 See Barker v. Halifax, Cro. Eliz. 741; S.C. 3 Dyer, 272 a, n. 32. + </p> + <p> + 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. + </p> + <p> + 297/3 Pollock, Contr. (lst ed.), p. 6. + </p> + <p> + <a name="linknote-298" id="linknote-298"> + <!-- Note --></a> + </p> + <p class="foot"> + 298 (<a href="#linknoteref-298">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-301" id="linknote-301"> + <!-- Note --></a> + </p> + <p class="foot"> + 301 (<a href="#linknoteref-301">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-302" id="linknote-302"> + <!-- Note --></a> + </p> + <p class="foot"> + 302 (<a href="#linknoteref-302">return</a>)<br /> + </p> + <p> + 302/1 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P. 499, 509. + </p> + <p> + <a name="linknote-304" id="linknote-304"> + <!-- Note --></a> + </p> + <p class="foot"> + 304 (<a href="#linknoteref-304">return</a>)<br /> + </p> + <p> + 304/1 Cheale v. Kenward, 3 DeG. & J. 27. + </p> + <p> + 304/2 Langdell, Contr., Sections 89, 28. + </p> + <p> + <a name="linknote-305" id="linknote-305"> + <!-- Note --></a> + </p> + <p class="foot"> + 305 (<a href="#linknoteref-305">return</a>)<br /> + </p> + <p> + 305/1 Langdell, Contr., Section 57. + </p> + <p> + 305/2 Ibid., Sections 14, 15. + </p> + <p> + <a name="linknote-306" id="linknote-306"> + <!-- Note --></a> + </p> + <p class="foot"> + 306 (<a href="#linknoteref-306">return</a>)<br /> + </p> + <p> + 306/1 But see Langdell, Contr., Sections 14, 15. + </p> + <p> + <a name="linknote-309" id="linknote-309"> + <!-- Note --></a> + </p> + <p class="foot"> + 309 (<a href="#linknoteref-309">return</a>)<br /> + </p> + <p> + 309/1 Raffles v. Wichelhaus, 2 H. & C. 906. Cf. Kyle v. Kavanagh, 103 + Mass. 356, 357. + </p> + <p> + 309/2 Cf. Cocker v. Crompton, 1 B. & C. 489. + </p> + <p> + <a name="linknote-310" id="linknote-310"> + <!-- Note --></a> + </p> + <p class="foot"> + 310 (<a href="#linknoteref-310">return</a>)<br /> + </p> + <p> + 310/1 Smith v. Hughes, L.R. 6 Q.B.597. + </p> + <p> + 310/2 See Gardner v. Lane, 12 Allen, 39; S.C. 9 Allen, 492, 98 Mass. 517. + </p> + <p> + <a name="linknote-311" id="linknote-311"> + <!-- Note --></a> + </p> + <p class="foot"> + 311 (<a href="#linknoteref-311">return</a>)<br /> + </p> + <p> + 311/1 Goddard v. Monitor Ins. Co., 108 Mass. 56. + </p> + <p> + <a name="linknote-313" id="linknote-313"> + <!-- Note --></a> + </p> + <p class="foot"> + 313 (<a href="#linknoteref-313">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-316" id="linknote-316"> + <!-- Note --></a> + </p> + <p class="foot"> + 316 (<a href="#linknoteref-316">return</a>)<br /> + </p> + <p> + 316/1 Brown v. Foster, 113 Mass. 136. + </p> + <p> + 316/2 Leake, Dig. Contr. 13, 14, 637; Hunt v. Livermore, 5 Pick. 395, 397; + Langd. Contr. (2d ed.), Section 36. + </p> + <p> + 316/3 Leake, Dig. Contr. 638; Braunstein v. Accidental Death Ins. Co., 1 + B. & S. 782. + </p> + <p> + 316/4 But cf. Langd. Contr. (2d ed.), Section 29. + </p> + <p> + <a name="linknote-318" id="linknote-318"> + <!-- Note --></a> + </p> + <p class="foot"> + 318 (<a href="#linknoteref-318">return</a>)<br /> + </p> + <p> + 318/1 Langd. Contr. (2d ed.), Section 29. + </p> + <p> + 318/2 Bullen & Leake, Prec. of Plead. (3d ed.), 147, "Conditions + Precedent." + </p> + <p> + <a name="linknote-319" id="linknote-319"> + <!-- Note --></a> + </p> + <p class="foot"> + 319 (<a href="#linknoteref-319">return</a>)<br /> + </p> + <p> + 319/1 Cf. Cort v. Ambergate, Nottingham & Boston & Eastern + Junction Railway Co., 17 Q.B.127. + </p> + <p> + <a name="linknote-320" id="linknote-320"> + <!-- Note --></a> + </p> + <p class="foot"> + 320 (<a href="#linknoteref-320">return</a>)<br /> + </p> + <p> + 320/1 Goodman v. Pocock, 15 Q.B.576 (1850). + </p> + <p> + <a name="linknote-325" id="linknote-325"> + <!-- Note --></a> + </p> + <p class="foot"> + 325 (<a href="#linknoteref-325">return</a>)<br /> + </p> + <p> + 325/1 Fisher v. Mellen, 103 Mass. 503. + </p> + <p> + 325/2 Supra, p. 136. + </p> + <p> + <a name="linknote-327" id="linknote-327"> + <!-- Note --></a> + </p> + <p class="foot"> + 327 (<a href="#linknoteref-327">return</a>)<br /> + </p> + <p> + 327/1 Langd. Contr. (2d ed.), Section 33. + </p> + <p> + <a name="linknote-328" id="linknote-328"> + <!-- Note --></a> + </p> + <p class="foot"> + 328 (<a href="#linknoteref-328">return</a>)<br /> + </p> + <p> + 328/1 See the explanation of Dimech v. Corlett, 12 Moo. P.C. 199, in Behn + v. Burness, 3 B. & S. 751, 760. + </p> + <p> + <a name="linknote-329" id="linknote-329"> + <!-- Note --></a> + </p> + <p class="foot"> + 329 (<a href="#linknoteref-329">return</a>)<br /> + </p> + <p> + 329/1 Behn v. Burness, 3 B. & S. 751. + </p> + <p> + 329/2 Langd. Contr. (2d ed.), Section 28, p. 1000. + </p> + <p> + 329/3 See Lecture VIII. + </p> + <p> + <a name="linknote-330" id="linknote-330"> + <!-- Note --></a> + </p> + <p class="foot"> + 330 (<a href="#linknoteref-330">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 330/2 Windscheid, Pand., Section 76(4). See, generally, Ibid., nn. 6, 7; + Section 78, pp. 206, 207; Section 82, pp. 216 et seq. + </p> + <p> + <a name="linknote-331" id="linknote-331"> + <!-- Note --></a> + </p> + <p class="foot"> + 331 (<a href="#linknoteref-331">return</a>)<br /> + </p> + <p> + 331/1 Cr. Ihering, Geist d. Roem. Rechts, Section 48, III. p. 116 (Fr. + transl.). + </p> + <p> + 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). + </p> + <p> + 331/3 Behn v. Burness, 3 B. & S. 751, 755, 756. + </p> + <p> + <a name="linknote-334" id="linknote-334"> + <!-- Note --></a> + </p> + <p class="foot"> + 334 (<a href="#linknoteref-334">return</a>)<br /> + </p> + <p> + 334/1 Cf. Anglo-Egyptian Navigation Co. v. Rennie, L.R. 10 C.P. 271. + </p> + <p> + 334/2 Ellen v. Topp, 6 Exch. 424. + </p> + <p> + <a name="linknote-335" id="linknote-335"> + <!-- Note --></a> + </p> + <p class="foot"> + 335 (<a href="#linknoteref-335">return</a>)<br /> + </p> + <p> + 335/1 Contracts (2d Ed.), Section 106, and passim. + </p> + <p> + <a name="linknote-336" id="linknote-336"> + <!-- Note --></a> + </p> + <p class="foot"> + 336 (<a href="#linknoteref-336">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 336/2 Heyworth v. Hutchinson, L.R. 2 Q.B.447, criticised in Benj. Sales + (2d ed.), pp. 742 et seq. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-337" id="linknote-337"> + <!-- Note --></a> + </p> + <p class="foot"> + 337 (<a href="#linknoteref-337">return</a>)<br /> + </p> + <p> + 337/1 Langdell, Contracts (2d ed.), Section 127. Cf. Roberts v. Brett, 11 + H. L. C. 337. + </p> + <p> + <a name="linknote-339" id="linknote-339"> + <!-- Note --></a> + </p> + <p class="foot"> + 339 (<a href="#linknoteref-339">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-341" id="linknote-341"> + <!-- Note --></a> + </p> + <p class="foot"> + 341 (<a href="#linknoteref-341">return</a>)<br /> + </p> + <p> + 341/1 Recht des Besitzes, Section 11, p. 184, n. 1 (7th ed.), Eng. tr. + 124, n. t. + </p> + <p> + <a name="linknote-342" id="linknote-342"> + <!-- Note --></a> + </p> + <p class="foot"> + 342 (<a href="#linknoteref-342">return</a>)<br /> + </p> + <p> + 342/1 Inst. II. Section 157. + </p> + <p> + 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] + </p> + <p> + <a name="linknote-343" id="linknote-343"> + <!-- Note --></a> + </p> + <p class="foot"> + 343 (<a href="#linknoteref-343">return</a>)<br /> + </p> + <p> + 343/1 Laveleye, Propriety, 24, 202, 205, 211, n. 1, 232; Norton, L.C. + Hindu Law of Inheritance, p. 193. + </p> + <p> + 343/2 D. 50. 16. 208. + </p> + <p> + 343/3 D. 41. 1. 34. Cf. D. 41. 3. 40; Bract., fol. 8 a, 44 a. + </p> + <p> + 343/4 D. 43. 24. 13, Section 5. + </p> + <p> + <a name="linknote-344" id="linknote-344"> + <!-- Note --></a> + </p> + <p class="foot"> + 344 (<a href="#linknoteref-344">return</a>)<br /> + </p> + <p> + 344/1 Germania, c. 20. + </p> + <p> + <a name="linknote-345" id="linknote-345"> + <!-- Note --></a> + </p> + <p class="foot"> + 345 (<a href="#linknoteref-345">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 345/2 Y.B. 48 Ed. III. 2, pl. 4. + </p> + <p> + <a name="linknote-346" id="linknote-346"> + <!-- Note --></a> + </p> + <p class="foot"> + 346 (<a href="#linknoteref-346">return</a>)<br /> + </p> + <p> + 346/1 Vermoegensrechtlichen Klagen, 88, 89. + </p> + <p> + 346/2 Proc. de la Lex Salica, tr. Thevenin, p. 72 and n. 1. + </p> + <p> + <a name="linknote-347" id="linknote-347"> + <!-- Note --></a> + </p> + <p class="foot"> + 347 (<a href="#linknoteref-347">return</a>)<br /> + </p> + <p> + 347/1 Ethelred, II. 9; Cnut, II. 73; Essays in Ang. Sax. Law, pp. 221 et + seq. + </p> + <p> + 347/2 1 Spence, Eq. 189, note, citing Hickes, Dissert. Epist., p. 57. + </p> + <p> + 347/3 Glanv., Lib. VII. c. 2 (Beames, p. 150). + </p> + <p> + 347/4 Ibid., c. 8 (Beames, p. 168). + </p> + <p> + 347/5 Reg. Maj., Lib. II. c. 39. + </p> + <p> + <a name="linknote-348" id="linknote-348"> + <!-- Note --></a> + </p> + <p class="foot"> + 348 (<a href="#linknoteref-348">return</a>)<br /> + </p> + <p> + 348/1 Fol. 61 a. + </p> + <p> + 348/2 Sachsensp., II. 60, Section 2, cited in Essays in Ang. Sax. Law, p. + 221; Grand Cust. de Norm., c. 88. + </p> + <p> + 348/3 Britt., fol. 64 b (Nich. ed. 163); Fleta, Lib. II. c. 62, Section + 10. Cf. Bract., fol. 37 b, Section 10. + </p> + <p> + 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." + </p> + <p> + <a name="linknote-349" id="linknote-349"> + <!-- Note --></a> + </p> + <p class="foot"> + 349 (<a href="#linknoteref-349">return</a>)<br /> + </p> + <p> + 349/1 Bracton, fol. 62a. + </p> + <p> + 349/2 Y.B. 20 & 21 Ed. I. 232; cf. ib. 312. + </p> + <p> + 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.). + </p> + <p> + 349/4 Bain v. Cooper, 1 Dowl. Pract. Cas. N. s. 11, 14. Cf. Y.B. 14 Hen. + VIII. pl. 5, at fol. 10. + </p> + <p> + <a name="linknote-350" id="linknote-350"> + <!-- Note --></a> + </p> + <p class="foot"> + 350 (<a href="#linknoteref-350">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 350/2 Comm. 385. + </p> + <p> + 350/3 Cf. Glanv., Lib. VII. c. 3; F. N. B. 21 L; Dyer, 4 b, 5 a. + </p> + <p> + <a name="linknote-351" id="linknote-351"> + <!-- Note --></a> + </p> + <p class="foot"> + 351 (<a href="#linknoteref-351">return</a>)<br /> + </p> + <p> + 351/1 Cf. Bract., fol. 80 b. + </p> + <p> + 351/2 Charta Divis. Reg. Franc., Art. IX. & VIII. Cf. 3 Laferriere, + Hist. du Droit Francais, 408, 409. + </p> + <p> + 351/3 Glanv., Lib. IX. c. 1 (Beames, pp. 218, 220); Bract., fol. 79 b. + </p> + <p> + <a name="linknote-352" id="linknote-352"> + <!-- Note --></a> + </p> + <p class="foot"> + 352 (<a href="#linknoteref-352">return</a>)<br /> + </p> + <p> + 352/1 Brooker's Case, Godbolt, 376, 377, pl. 465. + </p> + <p> + 352/2 Dyer, 1 b. Cf. Bain v. Cooper, 1 Dowl. Pr. C. N. s. 11, 12. + </p> + <p> + <a name="linknote-354" id="linknote-354"> + <!-- Note --></a> + </p> + <p class="foot"> + 354 (<a href="#linknoteref-354">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-356" id="linknote-356"> + <!-- Note --></a> + </p> + <p class="foot"> + 356 (<a href="#linknoteref-356">return</a>)<br /> + </p> + <p> + 356/1 Erbvertraege, I. 15 et seq. + </p> + <p> + 356/2 Hist. du Droit Franc., IV. 500. + </p> + <p> + 356/3 "Quantum dare voluerit aut totam furtunam eui voluerit dare . . . + nec minus nec majus nisi quantum ei creditum est." Lex Sal. (Merkel), + XLVI. + </p> + <p> + 356/4 Lex Sal. (Merkel), Cap. XLVI., De adfathamire; Sohm, Frank. Reichs- + u. Gerichtsverfassung, 69. + </p> + <p> + 356/6 Beseler, Erbvertraege, I. 101, 102, 105. + </p> + <p> + <a name="linknote-357" id="linknote-357"> + <!-- Note --></a> + </p> + <p class="foot"> + 357 (<a href="#linknoteref-357">return</a>)<br /> + </p> + <p> + 357/1 "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." + </p> + <p> + 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. + </p> + <p> + 357/3 (Merkel) Cap. LVIII., De chrenecruda. Sohm, Frank. R. u. G. Verf., + 117. + </p> + <p> + <a name="linknote-358" id="linknote-358"> + <!-- Note --></a> + </p> + <p class="foot"> + 358 (<a href="#linknoteref-358">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-359" id="linknote-359"> + <!-- Note --></a> + </p> + <p class="foot"> + 359 (<a href="#linknoteref-359">return</a>)<br /> + </p> + <p> + 359/1 "W. et heredibus suis, videlicet quos heredes constituerit." + Memorials of Hexham, Surtees Soc. Pub., 1864, II. 88. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-361" id="linknote-361"> + <!-- Note --></a> + </p> + <p class="foot"> + 361 (<a href="#linknoteref-361">return</a>)<br /> + </p> + <p> + 361/1 D. 38. 8. 1, pr. + </p> + <p> + 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. + </p> + <p> + 361/3 Gaii Inst. II. Sections 102 et seq. Cf. ib. Sections 252, 35. + </p> + <p> + 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.). + </p> + <p> + 361/5 Paulus in D. 50. 17. 128. + </p> + <p> + <a name="linknote-362" id="linknote-362"> + <!-- Note --></a> + </p> + <p class="foot"> + 362 (<a href="#linknoteref-362">return</a>)<br /> + </p> + <p> + 362/1 "In re legata in accessione temporis quo testator possedit, + legatarius quodammodo quasi heres est." D. 41. 3. 14, Section 1. + </p> + <p> + 362/2 D. 41.1.62; 43. 3. 1, Section 6; Gaii Inst. II. Section 97; Just. + Inst. 2. 10, Section 11. + </p> + <p> + <a name="linknote-363" id="linknote-363"> + <!-- Note --></a> + </p> + <p class="foot"> + 363 (<a href="#linknoteref-363">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 363/2 "Ab eo . . . in cujus locum hereditate vel emptione aliove quo iure + successi." D. 43. 19. 3, Section 2. + </p> + <p> + 363/3 D. 50. 4. 1, Section 4. Cf. Cic. de Off. 3. 19. 76; Gaii Inst. IV. + Section 34. + </p> + <p> + 363/4 C. 2. 3. 21; C. 6. 16. 2; cf. D. 38. 8. 1, pr. + </p> + <p> + <a name="linknote-364" id="linknote-364"> + <!-- Note --></a> + </p> + <p class="foot"> + 364 (<a href="#linknoteref-364">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 364/3 Inst. 2. 6, Sections 12, 13. Cf. D. 44. 3. 9. See, for a fuller + statement, 11 Am. Law Rev. 644, 645. + </p> + <p> + <a name="linknote-365" id="linknote-365"> + <!-- Note --></a> + </p> + <p class="foot"> + 365 (<a href="#linknoteref-365">return</a>)<br /> + </p> + <p> + 365/1 Recht des Besitzes, Section11 (7th ed.), p. 184, n. 1, Eng. tr. 124, + n. t. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 365/5 D. 12. 2. 7 & 8. + </p> + <p> + <a name="linknote-366" id="linknote-366"> + <!-- Note --></a> + </p> + <p class="foot"> + 366 (<a href="#linknoteref-366">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 366/3 "Ne vitiosae quidam possessioni ulla potest accedere: sed nec + vitiosa ei, quse vitiosa non est." D. 41. 2. 13, Section 13. + </p> + <p> + <a name="linknote-367" id="linknote-367"> + <!-- Note --></a> + </p> + <p class="foot"> + 367 (<a href="#linknoteref-367">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + <a name="linknote-368" id="linknote-368"> + <!-- Note --></a> + </p> + <p class="foot"> + 368 (<a href="#linknoteref-368">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-370" id="linknote-370"> + <!-- Note --></a> + </p> + <p class="foot"> + 370 (<a href="#linknoteref-370">return</a>)<br /> + </p> + <p> + 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). + </p> + <p> + 370/2 Roe v. Hayley, 12 East, 464, 470 (1810). + </p> + <p> + <a name="linknote-371" id="linknote-371"> + <!-- Note --></a> + </p> + <p class="foot"> + 371 (<a href="#linknoteref-371">return</a>)<br /> + </p> + <p> + 371/1 Boyer v. Rivet, 3 Bulstr. 317, 321. + </p> + <p> + <a name="linknote-372" id="linknote-372"> + <!-- Note --></a> + </p> + <p class="foot"> + 372 (<a href="#linknoteref-372">return</a>)<br /> + </p> + <p> + 372/1 Essays in A. S. Law, 219. + </p> + <p> + 372/2 "Per medium," Bracton, fol. 37b, Section10 ad fin. + </p> + <p> + <a name="linknote-374" id="linknote-374"> + <!-- Note --></a> + </p> + <p class="foot"> + 374 (<a href="#linknoteref-374">return</a>)<br /> + </p> + <p> + 374/1 Bract., fol. 17 b. Cf. Fleta, III. c. 14, Section 6. + </p> + <p> + 374/2 See, further, Middlemore v. Goodale, Cro. Car. 503, stated infra, p. + 379. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-375" id="linknote-375"> + <!-- Note --></a> + </p> + <p class="foot"> + 375 (<a href="#linknoteref-375">return</a>)<br /> + </p> + <p> + 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]. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-377" id="linknote-377"> + <!-- Note --></a> + </p> + <p class="foot"> + 377 (<a href="#linknoteref-377">return</a>)<br /> + </p> + <p> + 377/1 Fol. 67 a; cf. 54 a. + </p> + <p> + 377/2 Fol. 381; supra, p. 874, n. 3. + </p> + <p> + <a name="linknote-378" id="linknote-378"> + <!-- Note --></a> + </p> + <p class="foot"> + 378 (<a href="#linknoteref-378">return</a>)<br /> + </p> + <p> + 378/1 Cf. Pincombe v. Rudge, Hobart, 3; Bro. Warrantia Carte, pl. 8; S.C., + Y.B. 2 Hen. IV. 14, pl. 5. + </p> + <p> + 378/2 Y.B. 50 Ed. III. 12b & 13. + </p> + <p> + 378/3 Y.B. 42 Ed. III. 3, pl. 14, per Belknap, arguendo. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-379" id="linknote-379"> + <!-- Note --></a> + </p> + <p class="foot"> + 379 (<a href="#linknoteref-379">return</a>)<br /> + </p> + <p> + 379/1 Middlemore v. Goodale, Cro. Car. 503; S.C., ib. 505, Sir William + Jones, 406. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-380" id="linknote-380"> + <!-- Note --></a> + </p> + <p class="foot"> + 380 (<a href="#linknoteref-380">return</a>)<br /> + </p> + <p> + 380/1 Andrew v. Pearce, 4 Bos. & Pul. 158 (1805). + </p> + <p> + <a name="linknote-383" id="linknote-383"> + <!-- Note --></a> + </p> + <p class="foot"> + 383 (<a href="#linknoteref-383">return</a>)<br /> + </p> + <p> + 383/1 Austin, Jurisprudence, II. p. 842 (3d ed.). + </p> + <p> + 383/2 "Quoniam non personae, sed praedia deberent, neque adquiri libertas + neque remitti servitus per partem poterit." D. 8. 3. 34, pr. + </p> + <p> + 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. + </p> + <p> + 383/4 Elzevir ed., n. 51, ad loc. cit.; Cicero de L. Agr. 3. 2. 9. + </p> + <p> + 383/5 D. 50. 16, 86. Cf. Ulpian, D. 41. 1. 20, Section 1; D. 8. 3. 23, + Section 2. + </p> + <p> + 383/6 Inst. 2. 3, Section 1. + </p> + <p> + <a name="linknote-384" id="linknote-384"> + <!-- Note --></a> + </p> + <p class="foot"> + 384 (<a href="#linknoteref-384">return</a>)<br /> + </p> + <p> + 384/1 D. 8. 1. 14, pr. Cf. Elzevir ed., n. 58, "Et sic jura . . . + accessiones ease possunt corporum." + </p> + <p> + 384/2 "Cum fundus fundo servit." D. 8. 4. 12. Cf. D. 8. 5. 20, Section 1; + D. 41. 1. 2O, Section 1. + </p> + <p> + 384/3 Jurisprudence, II. p. 847 (3d ed.). + </p> + <p> + 384/4 Cf. Windscheid, Pand., Section 57, n. 10 (4th ed.), p. 150. + </p> + <p> + <a name="linknote-385" id="linknote-385"> + <!-- Note --></a> + </p> + <p class="foot"> + 385 (<a href="#linknoteref-385">return</a>)<br /> + </p> + <p> + 385/1 Fol. 10b, Section 3. + </p> + <p> + 385/2 Fol. 220b, Section 1. + </p> + <p> + <a name="linknote-386" id="linknote-386"> + <!-- Note --></a> + </p> + <p class="foot"> + 386 (<a href="#linknoteref-386">return</a>)<br /> + </p> + <p> + 386/1 Fol. 221. + </p> + <p> + 386/2 Fol. 219a, b. + </p> + <p> + 386/3 Fol. 102a, b. + </p> + <p> + 386/4 Fol. 226 b, Section 13. All these passages assume that a right has + been acquired and inheres in the land. + </p> + <p> + <a name="linknote-387" id="linknote-387"> + <!-- Note --></a> + </p> + <p class="foot"> + 387 (<a href="#linknoteref-387">return</a>)<br /> + </p> + <p> + 387/1 Fol. 53 a; cf. 59 b, ad fin., 242 b. + </p> + <p> + 387/2 "Nihil praescribitur nisi quod possidetur," cited from Hale de Jur. + Maris, p. 32, in Blundell v. Catterall, 5 B. & Ald. 268, 277. + </p> + <p> + <a name="linknote-388" id="linknote-388"> + <!-- Note --></a> + </p> + <p class="foot"> + 388 (<a href="#linknoteref-388">return</a>)<br /> + </p> + <p> + 388/1 Bract., fol. 46b; cf. 17b, 18, 47 b, 48. + </p> + <p> + 388/2 Fol. 81, 81 b, 79 b, 80 b. + </p> + <p> + 388/3 Fol. 24 b, 26, 35 b, 86, 208 b, &c. Cf. F. N. B. 123, E; + Laveleye, Propriete, 67, 68, 116. + </p> + <p> + 388/4 Abbr. Plac. 110; rot. 22, Devon. (Hen. III.}. + </p> + <p> + 388/5 Stockwell v. Hunter, 11 Met. (Mass.) 448. + </p> + <p> + <a name="linknote-389" id="linknote-389"> + <!-- Note --></a> + </p> + <p class="foot"> + 389 (<a href="#linknoteref-389">return</a>)<br /> + </p> + <p> + 389/1 Keilway, 130 b, pl. 104. + </p> + <p> + 389/2 Keilway, 113 a, pl. 45; Dyer, 2b. + </p> + <p> + 389/3 Keilway, 113a, pl. 45. Cf. Y.B. 33-35 Ed. I. 70; 45 Ed. III. 11, 12. + </p> + <p> + 389/4 Litt. Section 589. + </p> + <p> + 389/5 Keilway, 2 a, pl. 2 ad fin. (12 Hen. VII.). But cf. Y.B. 6 Hen. VII. + 14, pl. 2 ad fin. + </p> + <p> + 389/6 4 Laferriere, Hist. du Droit. Franc. 442; Bracton, fol. 53a. + </p> + <p> + <a name="linknote-390" id="linknote-390"> + <!-- Note --></a> + </p> + <p class="foot"> + 390 (<a href="#linknoteref-390">return</a>)<br /> + </p> + <p> + 390/1 Cf. Co. Lit. 322 b, et seq.; Y.B. 6 Hen. VII. 14, pl. 2 ad fin. + </p> + <p> + 390/2 Daintry v. Brocklehurst, 3 Exch. 207. + </p> + <p> + 390/3 Y.B. 5 Hen. VII. 18, pl. 12. + </p> + <p> + <a name="linknote-391" id="linknote-391"> + <!-- Note --></a> + </p> + <p class="foot"> + 391 (<a href="#linknoteref-391">return</a>)<br /> + </p> + <p> + 391/1 Y.B. 9 Hen. VI. 16, pl. 7. + </p> + <p> + 391/2 Y.B. 14 Hen. VI. 26, pl. 77. + </p> + <p> + 391/3 Y.B. 5 Hen. VII. 18, pl. 12. + </p> + <p> + 391/4 Cf. Theloall, Dig. I. c. 21, pl. 9. + </p> + <p> + 391/5 Buskin v. Edmunds, Cro. Eliz. 636. + </p> + <p> + 391/6 Harper v. Bird, T. Jones, 102 (30 Car. II.). + </p> + <p> + 391/7 Bolles v. Nyseham, Dyer, 254 b; Porter v. Swetnam, Style, 406; S.C., + ib. 431. + </p> + <p> + 391/8 3 Bl. Comm. 231, 232. + </p> + <p> + <a name="linknote-392" id="linknote-392"> + <!-- Note --></a> + </p> + <p class="foot"> + 392 (<a href="#linknoteref-392">return</a>)<br /> + </p> + <p> + 392/1 Yielding v. Fay, Cro. Eliz. 569. + </p> + <p> + 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). + </p> + <p> + 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. + </p> + <p> + 392/4 Dyer, 24 a, pl. 149; F. N. B. 180 N. + </p> + <p> + <a name="linknote-393" id="linknote-393"> + <!-- Note --></a> + </p> + <p class="foot"> + 393 (<a href="#linknoteref-393">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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). + </p> + <p> + <a name="linknote-394" id="linknote-394"> + <!-- Note --></a> + </p> + <p class="foot"> + 394 (<a href="#linknoteref-394">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 394/2 Y.B. 21 Ed. III. 2, pl. 5; F. N. B. 180 N. + </p> + <p> + 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. + </p> + <p> + 394/4 Y.B. 32 & 33 Ed. I. 430. + </p> + <p> + <a name="linknote-395" id="linknote-395"> + <!-- Note --></a> + </p> + <p class="foot"> + 395 (<a href="#linknoteref-395">return</a>)<br /> + </p> + <p> + 395/1 Y.B. 20 Ed. I. 360. + </p> + <p> + 395/2 Y.B. 32 & 33 Ed. I. 516. + </p> + <p> + 395/3 "Quia res cum homine [obviously a misprint for onere] transit ad + quemcunque." Fol. 382, 382 b. + </p> + <p> + 395/4 Lib. VI. c. 23, Section 17. + </p> + <p> + 395/5 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-396" id="linknote-396"> + <!-- Note --></a> + </p> + <p class="foot"> + 396 (<a href="#linknoteref-396">return</a>)<br /> + </p> + <p> + 396/1 Co. Lit. 385 a. + </p> + <p> + 396/2 Cf. Finchden as to rent in Y. B, 45 Ed. III. 11, 12. + </p> + <p> + 396/3 Cf. Y.B. 50 Ed. III. 12, 13, pl. 2. + </p> + <p> + <a name="linknote-397" id="linknote-397"> + <!-- Note --></a> + </p> + <p class="foot"> + 397 (<a href="#linknoteref-397">return</a>)<br /> + </p> + <p> + 397/1 Covenant, pl. 17. + </p> + <p> + 397/2 There is a colon here in both editions of the Year Books, marking + the beginning of a new argument. + </p> + <p> + 397/3 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14. + </p> + <p> + <a name="linknote-398" id="linknote-398"> + <!-- Note --></a> + </p> + <p class="foot"> + 398 (<a href="#linknoteref-398">return</a>)<br /> + </p> + <p> + 398/1 Bro. Covenant, pl. 5. Cf. Spencer's Case, 5 Co. Rep. 16 a, 17 b, 18 + a. + </p> + <p> + 398/2 Horne's Case, Y.B. 2 Hen. IV. 6, pl. 25. + </p> + <p> + <a name="linknote-399" id="linknote-399"> + <!-- Note --></a> + </p> + <p class="foot"> + 399 (<a href="#linknoteref-399">return</a>)<br /> + </p> + <p> + 399/1 "Quod conceditur." Cf. Spencer's Case, 5 Co. Rep. 16 a, 18 a. + </p> + <p> + 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. + </p> + <p> + 399/3 1 Co. Rep. 122 b; S.C., sub nom. Dillon v. Fraine, Popham, 70, 71. + </p> + <p> + <a name="linknote-400" id="linknote-400"> + <!-- Note --></a> + </p> + <p class="foot"> + 400 (<a href="#linknoteref-400">return</a>)<br /> + </p> + <p> + 400/1 Essays in Ang. Sax. Law, 248. + </p> + <p> + 400/2 Y.B. 22 Ed. I. 494, 496. + </p> + <p> + 400/3 Y.B. 4 Ed. III. 57, pl. 71; S.C., 7 Ed. III. 65, pl. 67. + </p> + <p> + <a name="linknote-401" id="linknote-401"> + <!-- Note --></a> + </p> + <p class="foot"> + 401 (<a href="#linknoteref-401">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 401/2 Hyde v. Dean of Windsor, Cro. Eliz. 552. + </p> + <p> + 401/3 Spencer's Case, 5 Co. Rep. 16 a. Cf. Minshill v. Oakes, 2 H. & + N. 793, 807. + </p> + <p> + <a name="linknote-402" id="linknote-402"> + <!-- Note --></a> + </p> + <p class="foot"> + 402 (<a href="#linknoteref-402">return</a>)<br /> + </p> + <p> + 402/1 Hyde v. Dean of Windsor, Cro. Eliz. 552, 553; S.C., ib. 457. Cf. + Bally v. Wells, 3 Wilson, 25, 29. + </p> + <p> + 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.). + </p> + <p> + <a name="linknote-403" id="linknote-403"> + <!-- Note --></a> + </p> + <p class="foot"> + 403 (<a href="#linknoteref-403">return</a>)<br /> + </p> + <p> + 403/1 F. N. B. 181 N; Sir Henry Nevil's Case, Plowden, 377, 381. + </p> + <p> + 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. + </p> + <p> + 403/3 Cockson v. Cock, Cro. Jac. 125. + </p> + <p> + 403/4 Sale v. Kitchingham, 10 Hod. 158 (E. 12 Anne). + </p> + <p> + 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. + </p> + <p> + <a name="linknote-404" id="linknote-404"> + <!-- Note --></a> + </p> + <p class="foot"> + 404 (<a href="#linknoteref-404">return</a>)<br /> + </p> + <p> + 404/1 4 Kent (12th ed.), 480, n. 1. + </p> + <p> + 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. + </p> + <p> + <a name="linknote-406" id="linknote-406"> + <!-- Note --></a> + </p> + <p class="foot"> + 406 (<a href="#linknoteref-406">return</a>)<br /> + </p> + <p> + 406/1 Rowbotham v. Wilson, 8 H. L. C. 348, 362 (Lord Wensleydale). + </p> + <p> + 406/2 Harbidge v. Warwick, 3 Exch. 552, 556. + </p> + <p> + 406/3 Rowbotham v. Wilson, 8 El. & Bl. 123, 143, 144. + </p> + <p> + 404/4 5 Co. Rep. 16, a. + </p> + <p> + <a name="linknote-407" id="linknote-407"> + <!-- Note --></a> + </p> + <p class="foot"> + 407 (<a href="#linknoteref-407">return</a>)<br /> + </p> + <p> + 407/1 Y.B. 8 Ed. IV. 5, 6, pl. 1; 22 Ed. IV. 6, pl. 18. Cf. 5 Ed. IV. 7, + pl. 16. + </p> + <p> + 407/2 Cf. Keilway, 42 b, 46 b; 2 Bl. Comm. 329. + </p> + <p> + <a name="linknote-408" id="linknote-408"> + <!-- Note --></a> + </p> + <p class="foot"> + 408 (<a href="#linknoteref-408">return</a>)<br /> + </p> + <p> + 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. + </p> + <p> + 408/2 Lewin, Trusts, Ch. I. (7th ed.), pp. 16, 15. + </p> + <p> + 408/3 4 Inst. 85; Gilb. Uses (Sugd.), 429, n. (6); Lewin, Trusts (7th + ed.), pp. 15, 228. + </p> + <p> + 408/4 Burgess v. Wheate, 1 Eden, 177, 203, 246. + </p> + <p> + 408/5 Lewin, Trusts, Introd. (7th ed.), p. 3. + </p> + <p> + 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). + </p> + <p> + <a name="linknote-409" id="linknote-409"> + <!-- Note --></a> + </p> + <p class="foot"> + 409 (<a href="#linknoteref-409">return</a>)<br /> + </p> + <p> + 409/1 4th Inst. 85; S.C., Dyer, 869, pl. 50; Jenk. Cent. 6, c. 30. Cf. + Gilb. Uses, 198* (Sugd. ed. 399). + </p> + <p> + 409/2 Gilb. Uses, 35* (Sugd. ed. 70). + </p> + <p> + 409/3 Theloall's Dig., I. 16, pl. 1. + </p> + <div style="height: 6em;"> + <br /><br /><br /><br /><br /><br /> + </div> +<pre xml:space="preserve"> + + + + + +End of Project Gutenberg's The Common Law, by Oliver Wendell Holmes, Jr. + +*** END OF THIS PROJECT GUTENBERG EBOOK THE COMMON LAW *** + +***** This file should be named 2449-h.htm or 2449-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/2/4/4/2449/ + +Produced by Stuart E. Thiel and David Widger + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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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. + +*** END OF THIS PROJECT GUTENBERG EBOOK THE COMMON LAW *** + +***** This file should be named 2449.txt or 2449.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/2/4/4/2449/ + +Produced by Stuart E. 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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. + + + + +THE COMMON LAW + +OLIVER WENDELL HOLMES, JR. + + + + +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. + +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. + +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. + diff --git a/old/2000-12-cmnlw10.zip b/old/2000-12-cmnlw10.zip Binary files differnew file mode 100644 index 0000000..71d7506 --- /dev/null +++ b/old/2000-12-cmnlw10.zip |