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diff --git a/2449.txt b/2449.txt new file mode 100644 index 0000000..410d0e9 --- /dev/null +++ b/2449.txt @@ -0,0 +1,14449 @@ +The Project Gutenberg EBook of The Common Law, by Oliver Wendell Holmes, Jr. + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Common Law + +Author: Oliver Wendell Holmes, Jr. + +Release Date: December, 2000 [Etext #2449] +Last Updated: July 17, 2012 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE COMMON LAW *** + + + + +Produced by Stuart E. Thiel + + + + + +THE COMMON LAW + +By Oliver Wendell Holmes, Jr. + + + +Conventions: + +Numbers in square brackets (e.g. [245]) refer to original page +numbers. Original footnotes were numbered page-by-page, and are +collected at the end of the text. In the text, numbers in slashes +(e.g./1/) refer to original footnote numbers. In the footnote +section, a number such as 245/1 refers to (original) page 245, +footnote 1. The footnotes are mostly citations to old English law +reporters and to commentaries by writers such as Ihering, Bracton +and Blackstone. I cannot give a source for decrypting the +notation. + +There is quite a little Latin and some Greek in the original +text. I have reproduced the Latin. The Greek text is omitted; its +place is marked by the expression [Greek characters]. Italics and +diacritical marks such as accents and cedillas are omitted and +unmarked. + +Lecture X has two subheads--Successions After Death and +Successions Inter Vivos. Lecture XI is also titled Successions +Inter Vivos. This conforms to the original. + + + + +LECTURE I. -- EARLY FORMS OF LIABILITY. + +[1] The object of this book is to present a general view of the +Common Law. To accomplish the task, other tools are needed +besides logic. It is something to show that the consistency of a +system requires a particular result, but it is not all. The life +of the law has not been logic: it has been experience. The felt +necessities of the time, the prevalent moral and political +theories, intuitions of public policy, avowed or unconscious, +even the prejudices which judges share with their fellow-men, +have had a good deal more to do than the syllogism in determining +the rules by which men should be governed. The law embodies the +story of a nation's development through many centuries, and it +cannot be dealt with as if it contained only the axioms and +corollaries of a book of mathematics. In order to know what it +is, we must know what it has been, and what it tends to become. +We must alternately consult history and existing theories of +legislation. But the most difficult labor will be to understand +the combination of the two into new products at every stage. The +substance of the law at any given time pretty nearly [2] +corresponds, so far as it goes, with what is then understood to +be convenient; but its form and machinery, and the degree to +which it is able to work out desired results, depend very much +upon its past. + +In Massachusetts today, while, on the one hand, there are a great +many rules which are quite sufficiently accounted for by their +manifest good sense, on the other, there are some which can only +be understood by reference to the infancy of procedure among the +German tribes, or to the social condition of Rome under the +Decemvirs. + +I shall use the history of our law so far as it is necessary to +explain a conception or to interpret a rule, but no further. In +doing so there are two errors equally to be avoided both by +writer and reader. One is that of supposing, because an idea +seems very familiar and natural to us, that it has always been +so. Many things which we take for granted have had to be +laboriously fought out or thought out in past times. The other +mistake is the opposite one of asking too much of history. We +start with man full grown. It may be assumed that the earliest +barbarian whose practices are to be considered, had a good many +of the same feelings and passions as ourselves. + +The first subject to be discussed is the general theory of +liability civil and criminal. The Common Law has changed a good +deal since the beginning of our series of reports, and the search +after a theory which may now be said to prevail is very much a +study of tendencies. I believe that it will be instructive to go +back to the early forms of liability, and to start from them. + +It is commonly known that the early forms of legal procedure were +grounded in vengeance. Modern writers [3] have thought that the +Roman law started from the blood feud, and all the authorities +agree that the German law begun in that way. The feud led to the +composition, at first optional, then compulsory, by which the +feud was bought off. The gradual encroachment of the composition +may be traced in the Anglo-Saxon laws, /1/ and the feud was +pretty well broken up, though not extinguished, by the time of +William the Conqueror. The killings and house-burnings of an +earlier day became the appeals of mayhem and arson. The appeals +de pace et plagis and of mayhem became, or rather were in +substance, the action of trespass which is still familiar to +lawyers. /2/ But as the compensation recovered in the appeal was +the alternative of vengeance, we might expect to find its scope +limited to the scope of vengeance. Vengeance imports a feeling of +blame, and an opinion, however distorted by passion, that a wrong +has been done. It can hardly go very far beyond the case of a +harm intentionally inflicted: even a dog distinguishes between +being stumbled over and being kicked. + +Whether for this cause or another, the early English appeals for +personal violence seem to have been confined to intentional +wrongs. Glanvill /3/ mentions melees, blows, and wounds,--all +forms of intentional violence. In the fuller description of such +appeals given by Bracton /4/ it is made quite clear that they +were based on intentional assaults. The appeal de pace et plagis +laid an intentional assault, described the nature of the arms +used, and the length and depth of the wound. The appellor also +had [4] to show that he immediately raised the hue and cry. So +when Bracton speaks of the lesser offences, which were not sued +by way of appeal, he instances only intentional wrongs, such as +blows with the fist, flogging, wounding, insults, and so forth. +/1/ The cause of action in the cases of trespass reported in the +earlier Year Books and in the Abbreviatio Plaeitorum is always an +intentional wrong. It was only at a later day, and after +argument, that trespass was extended so as to embrace harms which +were foreseen, but which were not the intended consequence of the +defendant's act. /2/ Thence again it extended to unforeseen +injuries. /3/ + +It will be seen that this order of development is not quite +consistent with an opinion which has been held, that it was a +characteristic of early law not to penetrate beyond the external +visible fact, the damnum corpore corpori datum. It has been +thought that an inquiry into the internal condition of the +defendant, his culpability or innocence, implies a refinement of +juridical conception equally foreign to Rome before the Lex +Aquilia, and to England when trespass took its shape. I do not +know any very satisfactory evidence that a man was generally held +liable either in Rome /4/ or England for the accidental +consequences even of his own act. But whatever may have been the +early law, the foregoing account shows the starting-point of the +system with which we have to deal. Our system of private +liability for the consequences of a man's own acts, that is, for +his trespasses, started from the notion of actual intent and +actual personal culpability. + +The original principles of liability for harm inflicted by [5] +another person or thing have been less carefully considered +hitherto than those which governed trespass, and I shall +therefore devote the rest of this Lecture to discussing them. I +shall try to show that this liability also had its root in the +passion of revenge, and to point out the changes by which it +reached its present form. But I shall not confine myself strictly +to what is needful for that purpose, because it is not only most +interesting to trace the transformation throughout its whole +extent, but the story will also afford an instructive example of +the mode in which the law has grown, without a break, from +barbarism to civilization. Furthermore, it will throw much light +upon some important and peculiar doctrines which cannot be +returned to later. + +A very common phenomenon, and one very familiar to the student of +history, is this. The customs, beliefs, or needs of a primitive +time establish a rule or a formula. In the course of centuries +the custom, belief, or necessity disappears, but the rule +remains. The reason which gave rise to the rule has been +forgotten, and ingenious minds set themselves to inquire how it +is to be accounted for. Some ground of policy is thought of, +which seems to explain it and to reconcile it with the present +state of things; and then the rule adapts itself to the new +reasons which have been found for it, and enters on a new career. +The old form receives a new content, and in time even the form +modifies itself to fit the meaning which it has received. The +subject under consideration illustrates this course of events +very clearly. + +I will begin by taking a medley of examples embodying as many +distinct rules, each with its plausible and seemingly sufficient +ground of policy to explain it. + +[6] A man has an animal of known ferocious habits, which escapes +and does his neighbor damage. He can prove that the animal +escaped through no negligence of his, but still he is held +liable. Why? It is, says the analytical jurist, because, although +he was not negligent at the moment of escape, he was guilty of +remote heedlessness, or negligence, or fault, in having such a +creature at all. And one by whose fault damage is done ought to +pay for it. + +A baker's man, while driving his master's cart to deliver hot +rolls of a morning, runs another man down. The master has to pay +for it. And when he has asked why he should have to pay for the +wrongful act of an independent and responsible being, he has been +answered from the time of Ulpian to that of Austin, that it is +because he was to blame for employing an improper person. If he +answers, that he used the greatest possible care in choosing his +driver, he is told that that is no excuse; and then perhaps the +reason is shifted, and it is said that there ought to be a remedy +against some one who can pay the damages, or that such wrongful +acts as by ordinary human laws are likely to happen in the course +of the service are imputable to the service. + +Next, take a case where a limit has been set to liability which +had previously been unlimited. In 1851, Congress passed a law, +which is still in force, and by which the owners of ships in all +the more common cases of maritime loss can surrender the vessel +and her freight then pending to the losers; and it is provided +that, thereupon, further proceedings against the owners shall +cease. The legislators to whom we owe this act argued that, if a +merchant embark a portion of his property upon a hazardous +venture, it is reasonable that his stake should be confined to +what [7] he puts at risk,--a principle similar to that on which +corporations have been so largely created in America during the +last fifty years. + +It has been a rule of criminal pleading in England down into the +present century, that an indictment for homicide must set forth +the value of the instrument causing the death, in order that the +king or his grantee might claim forfeiture of the deodand, "as an +accursed thing," in the language of Blackstone. + +I might go on multiplying examples; but these are enough to show +the remoteness of the points to be brought together.--As a first +step towards a generalization, it will be necessary to consider +what is to be found in ancient and independent systems of law. + +There is a well-known passage in Exodus, /1/ which we shall have +to remember later: "If an ox gore a man or a woman, that they +die: then the ox shall be surely stoned, and his flesh shall not +be eaten; but the owner of the ox shall be quit." When we turn +from the Jews to the Greeks, we find the principle of the passage +just quoted erected into a system. Plutarch, in his Solon, tells +us that a dog that had bitten a man was to be delivered up bound +to a log four cubits long. Plato made elaborate provisions in his +Laws for many such cases. If a slave killed a man, he was to be +given up to the relatives of the deceased. /2/ If he wounded a +man, he was to be given up to the injured party to use him as he +pleased. /3/ So if he did damage to which the injured party did +not contribute as a joint cause. In either case, if the owner [8] +failed to surrender the slave, he was bound to make good the +loss. /1/ If a beast killed a man, it was to be slain and cast +beyond the borders. If an inanimate thing caused death, it was to +be cast beyond the borders in like manner, and expiation was to +be made. /2/ Nor was all this an ideal creation of merely +imagined law, for it was said in one of the speeches of +Aeschines, that "we banish beyond our borders stocks and stones +and steel, voiceless and mindless things, if they chance to kill +a man; and if a man commits suicide, bury the hand that struck +the blow afar from its body." This is mentioned quite as an +every-day matter, evidently without thinking it at all +extraordinary, only to point an antithesis to the honors heaped +upon Demosthenes. /3/ As late as the second century after Christ +the traveller Pausanias observed with some surprise that they +still sat in judgment on inanimate things in the Prytaneum. /4/ +Plutarch attributes the institution to Draco. /5/ + +In the Roman law we find the similar principles of the noxoe +deditio gradually leading to further results. The Twelve Tables +(451 B.C.) provided that, if an animal had done damage, either +the animal was to be surrendered or the damage paid for. /6/ We +learn from Gains that the same rule was applied to the torts of +children or slaves, /7/ and there is some trace of it with regard +to inanimate things. + +The Roman lawyers, not looking beyond their own [9] system or +their own time, drew on their wits for an explanation which would +show that the law as they found it was reasonable. Gaius said +that it was unjust that the fault of children or slaves should be +a source of loss to their parents or owners beyond their own +bodies, and Ulpian reasoned that a fortiori this was true of +things devoid of life, and therefore incapable of fault. /1/ This +way of approaching the question seems to deal with the right of +surrender as if it were a limitation of a liability incurred by a +parent or owner, which would naturally and in the first instance +be unlimited. But if that is what was meant, it puts the cart +before the horse. The right of surrender was not introduced as a +limitation of liability, but, in Rome and Greece alike, payment +was introduced as the alternative of a failure to surrender. + +The action was not based, as it would be nowadays, on the fault +of the parent or owner. If it had been, it would always have been +brought against the person who had control of the slave or animal +at the time it did the harm complained of, and who, if any one, +was to blame for not preventing the injury. So far from this +being the course, the person to be sued was the owner at the time +of suing. The action followed the guilty thing into whosesoever +hands it came. /2/ And in curious contrast with the principle as +inverted to meet still more modern views of public policy, if the +animal was of a wild nature, that is, in the very case of the +most ferocious animals, the owner ceased to be liable the moment +it escaped, because at that moment he ceased to be owner. /3/ +There [10] seems to have been no other or more extensive +liability by the old law, even where a slave was guilty with his +master's knowledge, unless perhaps he was a mere tool in his +master's hands. /1/ Gains and Ulpian showed an inclination to cut +the noxoe deditio down to a privilege of the owner in case of +misdeeds committed without his knowledge; but Ulpian is obliged +to admit, that by the ancient law, according to Celsus, the +action was noxal where a slave was guilty even with the privity +of his master. /2/ + +All this shows very clearly that the liability of the owner was +merely a way of getting at the slave or animal which was the +immediate cause of offence. In other words, vengeance on the +immediate offender was the object of the Greek and early Roman +process, not indemnity from the master or owner. The liability of +the owner was simply a liability of the offending thing. In the +primitive customs of Greece it was enforced by a judicial process +expressly directed against the object, animate or inanimate. The +Roman Twelve Tables made the owner, instead of the thing itself, +the defendant, but did not in any way change the ground of +liability, or affect its limit. The change was simply a device to +allow the owner to protect his interest. /3/ + +But it may be asked how inanimate objects came to be [11] pursued +in this way, if the object of the procedure was to gratify the +passion of revenge. Learned men have been ready to find a reason +in the personification of inanimate nature common to savages and +children, and there is much to confirm this view. Without such a +personification, anger towards lifeless things would have been +transitory, at most. It is noticeable that the commonest example +in the most primitive customs and laws is that of a tree which +falls upon a man, or from which he falls and is killed. We can +conceive with comparative ease how a tree might have been put on +the same footing with animals. It certainly was treated like +them, and was delivered to the relatives, or chopped to pieces +for the gratification of a real or simulated passion. /1/ + +In the Athenian process there is also, no doubt, to be traced a +different thought. Expiation is one of the ends most insisted on +by Plato, and appears to have been the purpose of the procedure +mentioned by Aeschines. Some passages in the Roman historians +which will be mentioned again seem to point in the same +direction. /2/ + +Another peculiarity to be noticed is, that the liability seems to +have been regarded as attached to the body doing the damage, in +an almost physical sense. An untrained intelligence only +imperfectly performs the analysis by which jurists carry +responsibility back to the beginning of a chain of causation. The +hatred for anything giving us pain, which wreaks itself on the +manifest cause, and which leads even civilized man to kick a door +when it pinches his finger, is embodied in the noxoe deditio and +[12] other kindred doctrines of early Roman law. There is a +defective passage in Gaius, which seems to say that liability may +sometimes be escaped by giving up even the dead body of the +offender. /1/ So Livy relates that, Brutulus Papins having caused +a breach of truce with the Romans, the Samnites determined to +surrender him, and that, upon his avoiding disgrace and +punishment by suicide, they sent his lifeless body. It is +noticeable that the surrender seems to be regarded as the natural +expiation for the breach of treaty, /2/ and that it is equally a +matter of course to send the body when the wrong-doer has +perished. /3/ + +The most curious examples of this sort occur in the region of +what we should now call contract. Livy again furnishes an +example, if, indeed, the last is not one. The Roman Consul +Postumius concluded the disgraceful peace of the Caudine Forks +(per sponsionem, as Livy says, denying the common story that it +was per feedus), and he was sent to Rome to obtain the sanction +of the people. When there however, he proposed that the persons +who had made the [13] contract, including himself, should be +given up in satisfaction of it. For, he said, the Roman people +not having sanctioned the agreement, who is so ignorant of the +jus fetialium as not to know that they are released from +obligation by surrendering us? The formula of surrender seems to +bring the case within the noxoe deditio. /1/ Cicero narrates a +similar surrender of Mancinus by the pater-patratus to the +Numantines, who, however, like the Samnites in the former case, +refused to receive him. /2/ + +It might be asked what analogy could have been found between a +breach of contract and those wrongs which excite the desire for +vengeance. But it must be remembered that the distinction between +tort and breaches of contract, and especially between the +remedies for the two, is not found ready made. It is conceivable +that a procedure adapted to redress for violence was extended to +other cases as they arose. Slaves were surrendered for theft as +well as [14] for assault; /1/ and it is said that a debtor who +did not pay his debts, or a seller who failed to deliver an +article for which he had been paid, was dealt with on the same +footing as a thief. /2/ This line of thought, together with the +quasi material conception of legal obligations as binding the +offending body, which has been noticed, would perhaps explain the +well-known law of the Twelve Tables as to insolvent debtors. +According to that law, if a man was indebted to several creditors +and insolvent, after certain formalities they might cut up his +body and divide it among them. If there was a single creditor, he +might put his debtor to death or sell him as a slave. /3/ + +If no other right were given but to reduce a debtor to slavery, +the law might be taken to look only to compensation, and to be +modelled on the natural working of self-redress. /4/ The +principle of our own law, that taking a man's body on execution +satisfies the debt, although he is not detained an hour, seems to +be explained in that way. But the right to put to death looks +like vengeance, and the division of the body shows that the debt +was conceived very literally to inhere in or bind the body with a +vinculum juris. + +Whatever may be the true explanation of surrender in connection +with contracts, for the present purpose we need not go further +than the common case of noxoe deditio for wrongs. Neither is the +seeming adhesion of liability to the very body which did the harm +of the first importance. [15] The Roman law dealt mainly with +living creatures,--with animals and slaves. If a man was run +over, it did not surrender the wagon which crushed him, but the +ox which drew the wagon. /1/ At this stage the notion is easy to +understand. The desire for vengeance may be felt as strongly +against a slave as against a freeman, and it is not without +example nowadays that a like passion should be felt against an +animal. The surrender of the slave or beast empowered the injured +party to do his will upon them. Payment by the owner was merely a +privilege in case he wanted to buy the vengeance off. + +It will readily be imagined that such a system as has been +described could not last when civilization had advanced to any +considerable height. What had been the privilege of buying off +vengeance by agreement, of paying the damage instead of +surrendering the body of the offender, no doubt became a general +custom. The Aquilian law, passed about a couple of centuries +later than the date of the Twelve Tables, enlarged the sphere of +compensation for bodily injuries. Interpretation enlarged the +Aquilian law. Masters became personally liable for certain wrongs +committed by their slaves with their knowledge, where previously +they were only bound to surrender the slave. /2/ If a pack-mule +threw off his burden upon a passer-by because he had been +improperly overloaded, or a dog which might have been restrained +escaped from his master and bit any one, the old noxal action, as +it was called, gave way to an action under the new law to enforce +a general personal liability. /3/ Still later, ship-owners and +innkeepers were made liable [16] as if they were wrong-doers for +wrongs committed by those in their employ on board ship or in the +tavern, although of course committed without their knowledge. The +true reason for this exceptional responsibility was the +exceptional confidence which was necessarily reposed in carriers +and innkeepers. /1/ But some of the jurists, who regarded the +surrender of children and slaves as a privilege intended to limit +liability, explained this new liability on the ground that the +innkeeper or ship-owner was to a certain degree guilty of +negligence in having employed the services of bad men? This was +the first instance of a master being made unconditionally liable +for the wrongs of his servant. The reason given for it was of +general application, and the principle expanded to the scope of +the reason. + +The law as to ship-owners and innkeepers introduced another and +more startling innovation. It made them responsible when those +whom they employed were free, as well as when they were slaves. +/3/ For the first time one man was made answerable for the wrongs +of another who was also answerable himself, and who had a +standing before the law. This was a great change from the bare +permission to ransom one's slave as a privilege. But here we have +the history of the whole modern doctrine of master and servant, +and principal and agent. All servants are now as free and as +liable to a suit as their masters. Yet the principle introduced +on special grounds in a special case, when servants were slaves, +is now the general law of this country and England, and under it +men daily have to pay large sums for other people's acts, in +which they had no part and [17] for which they are in no sense to +blame. And to this day the reason offered by the Roman jurists +for an exceptional rule is made to justify this universal and +unlimited responsibility. /1/ + +So much for one of the parents of our common law. Now let us turn +for a moment to the Teutonic side. The Salic Law embodies usages +which in all probability are of too early a date to have been +influenced either by Rome or the Old Testament. The thirty-sixth +chapter of the ancient text provides that, if a man is killed by +a domestic animal, the owner of the animal shall pay half the +composition (which he would have had to pay to buy off the blood +feud had he killed the man himself), and for the other half give +up the beast to the complainant. /2/ So, by chapter thirty-five, +if a slave killed a freeman, he was to be surrendered for one +half of the composition to the relatives of the slain man, and +the master was to pay the other half. But according to the gloss, +if the slave or his master had been maltreated by the slain man +or his relatives, the master had only to surrender the slave. /3/ +It is interesting to notice that those Northern sources which +Wilda takes to represent a more primitive stage of German law +confine liability for animals to surrender alone. /4/ There is +also a trace of the master's having been able to free himself in +some cases, at a later date, by showing that the slave was no +longer in [18] his possession. /1/ There are later provisions +making a master liable for the wrongs committed by his slave by +his command. /2/ In the laws adapted by the Thuringians from the +earlier sources, it is provided in terms that the master is to +pay for all damage done by his slaves. /4/ + +In short, so far as I am able to trace the order of development +in the customs of the German tribes, it seems to have been +entirely similar to that which we have already followed in the +growth of Roman law. The earlier liability for slaves and animals +was mainly confined to surrender; the later became personal, as +at Rome. + +The reader may begin to ask for the proof that all this has any +bearing on our law of today. So far as concerns the influence of +the Roman law upon our own, especially the Roman law of master +and servant, the evidence of it is to be found in every book +which has been written for the last five hundred years. It has +been stated already that we still repeat the reasoning of the +Roman lawyers, empty as it is, to the present day. It will be +seen directly whether the German folk-laws can also be followed +into England. + +In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) [19] it +is said, "If any one's slave slay a freeman, whoever it be, let +the owner pay with a hundred shillings, give up the slayer," &c. +/1/ There are several other similar provisions. In the nearly +contemporaneous laws of Ine, the surrender and payment are simple +alternatives. "If a Wessex slave slay an Englishman, then shall +he who owns him deliver him up to the lord and the kindred, or +give sixty shillings for his life." /2/ Alfred's laws (A.D. +871-901) have a like provision as to cattle. "If a neat wound a +man, let the neat be delivered up or compounded for." /3/ And +Alfred, although two hundred years later than the first English +lawgivers who have been quoted, seems to have gone back to more +primitive notions than we find before his time. For the same +principle is extended to the case of a tree by which a man is +killed. "If, at their common work, one man slay another +unwilfully, let the tree be given to the kindred, and let them +have it off the land within thirty nights. Or let him take +possession of it who owns the wood." /4/ + +It is not inapposite to compare what Mr. Tylor has mentioned +concerning the rude Kukis of Southern Asia. "If a tiger killed a +Kuki, his family were in disgrace till they had retaliated by +killing and eating this tiger, or another; but further, if a man +was killed by a fall from a tree, his relatives would take their +revenge by cutting the tree down, and scattering it in chips." +/5/ + +To return to the English, the later laws, from about a hundred +years after Alfred down to the collection known as the laws of +Henry I, compiled long after the Conquest, [20] increase the +lord's liability for his household, and make him surety for his +men's good conduct. If they incur a fine to the king and run +away, the lord has to pay it unless he can clear himself of +complicity. But I cannot say that I find until a later period the +unlimited liability of master for servant which was worked out on +the Continent, both by the German tribes and at Rome. Whether the +principle when established was an indigenous growth, or whether +the last step was taken under the influence of the Roman law, of +which Bracton made great use, I cannot say. It is enough that the +soil was ready for it, and that it took root at an early day. /1/ +This is all that need be said here with regard to the liability +of a master for the misdeeds of his servants. + +It is next to be shown what became of the principle as applied to +animals. Nowadays a man is bound at his peril to keep his cattle +from trespassing, and he is liable for damage done by his dog or +by any fierce animal, if he has notice of a tendency in the brute +to do the harm complained of. The question is whether any +connection can be established between these very sensible and +intelligible rules of modern law and the surrender directed by +King Alfred. + +Let us turn to one of the old books of the Scotch law, where the +old principle still appears in full force and is stated with its +reasons as then understood, /2/ + +"Gif ane wylde or head-strang horse, carries ane man [21] against +his will over an craig, or heuch, or to the water, and the man +happin to drowne, the horse sall perteine to the king as escheit. + +"Bot it is otherwise of ane tame and dantoned horse; gif any man +fulishlie rides, and be sharp spurres compelles his horse to take +the water, and the man drownes, the horse sould not be escheit, +for that comes be the mans fault or trespasse, and not of the +horse, and the man has receaved his punishment, in sa farre as he +is perished and dead; and the horse quha did na fault, sould not +be escheit. + +"The like reason is of all other beastes, quhilk slayes anie man, +[it is added in a later work, "of the quhilk slaughter they haue +gilt,"] for all these beasts sould be escheit." /1/ + +"The Forme and Maner of Baron Courts" continues as follows:-- + +"It is to witt, that this question is asked in the law, Gif ane +lord hes ane milne, and any man fall in the damne, and be borne +down with the water quhill he comes to the quheill, and there be +slaine to death with the quheill; quhither aught the milne to be +eseheir or not? The law sayes thereto nay, and be this reason, +For it is ane dead thing, and ane dead thing may do na fellony, +nor be made escheit throw their gilt. Swa the milne in this case +is not culpable, and in the law it is lawfull to the lord of the +land to haue ane mylne on his awin water quhere best likes him." +/2/ + +The reader will see in this passage, as has been remarked already +of the Roman law, that a distinction is taken between things +which are capable of guilt and those which [22] are not,--between +living and dead things; but he will also see that no difficulty +was felt in treating animals as guilty. + +Take next an early passage of the English law, a report of what +was laid down by one of the English judges. In 1333 it was stated +for law, that, "if my dog kills your sheep, and I, freshly after +the fact, tender you the dog, you are without recovery against +me." /1/ More than three centuries later, in 1676, it was said +by Twisden, J. that, "if one hath kept a tame fox, which gets +loose and grows wild, he that hath kept him before shall not +answer for the damage the fox doth after he hath lost him, and he +hath resumed his wild nature." /2/ It is at least doubtful +whether that sentence ever would have been written but for the +lingering influence of the notion that the ground of the owner's +liability was his ownership of the offending: thing and his +failure to surrender it. When the fox escaped, by another +principle of law the ownership was at an end. In fact, that very +consideration was seriously pressed in England as late as 1846, +with regard to a monkey which escaped and bit the plaintiff, /3/ +So it seems to be a reasonable conjecture, that it was this way +of thinking which led Lord Holt, near the beginning of the last +century, to intimate that one ground on which a man is bound at +his peril to restrain cattle from trespassing is that he has +valuable property in such animals, whereas he has not dogs, for +which his responsibility is less. /4/ To this day, in fact, +cautious judges state the law as to cattle to be, that, "if I am +the owner of an animal in which by law the [23] right of property +can exist, I am bound to take care that it does not stray into +the land of my neighbor." /1/ + +I do not mean that our modern law on this subject is only a +survival, and that the only change from primitive notions was to +substitute the owner for the offending animal. For although it is +probable that the early law was one of the causes which led to +the modern doctrine, there has been too much good sense in every +stage of our law to adopt any such sweeping consequences as would +follow from the wholesale transfer of liability supposed. An +owner is not bound at his peril to keep his cattle from harming +his neighbor's person. /2/ And in some of the earliest instances +of personal liability, even for trespass on a neighbor's land, +the ground seems to have been the owner's negligence. /3/ + +It is the nature of those animals which the common law recognizes +as the subject of ownership to stray, and when straying to do +damage by trampling down and eating crops. At the same time it is +usual and easy to restrain them. On the other hand, a dog, which +is not the subject of property, does no harm by simply crossing +the land of others than its owner. Hence to this extent the new +law might have followed the old. The right of property in the +[24] offending animal, which was the ancient ground of +responsibility, might have been adopted safely enough as the test +of a liability based on the fault of the owner. But the +responsibility for damage of a kind not to be expected from such +animals is determined on grounds of policy comparatively little +disturbed by tradition. The development of personal liability for +fierce wild animals at Rome has been explained. Our law seems to +have followed the Roman. + +We will now follow the history of that branch of the primitive +notion which was least likely to survive,--the liability of +inanimate things. + +It will be remembered that King Alfred ordained the surrender of +a tree, but that the later Scotch law refused it because a dead +thing could not have guilt. It will be remembered, also, that the +animals which the Scotch law forfeited were escheat to the king. +The same thing has remained true in England until well into this +century, with regard even to inanimate objects. As long ago as +Bracton, /1/ in case a man was slain, the coroner was to value +the object causing the death, and that was to be forfeited sa +deodand "pro rege." It was to be given to God, that is to say to +the Church, for the king, to be expended for the good of his +soul. A man's death had ceased to be the private affair of his +friends as in the time of the barbarian folk-laws. The king, who +furnished the court, now sued for the penalty. He supplanted the +family in the claim on the guilty thing, and the Church +supplanted him. + +In Edward the First's time some of the cases remind of the +barbarian laws at their rudest stage. If a man fell from a tree, +the tree was deodand. /2/ If he drowned in a [25] well, the well +was to be filled up. /1/ It did not matter that the forfeited +instrument belonged to an innocent person. "Where a man killeth +another with the sword of John at Stile, the sword shall be +forfeit as deodand, and yet no default is in the owner." /2/ That +is from a book written in the reign of Henry VIII., about 1530. +And it has been repeated from Queen Elizabeth's time /3/ to +within one hundred years, /4/ that if my horse strikes a man, and +afterwards I sell my horse, and after that the man dies, the +horse shall be forfeited. Hence it is, that, in all indictments +for homicide, until very lately it has been necessary to state +the instrument causing the death and its value, as that the +stroke was given by a certain penknife, value sixpence, so as to +secure the forfeiture. It is said that a steam-engine has been +forfeited in this way. + +I now come to what I regard as the most remarkable transformation +of this principle, and one which is a most important factor in +our law as it is today. I must for the moment leave the common +law and take up the doctrines of the Admiralty. In the early +books which have just been referred to, and long afterwards, the +fact of motion is adverted to as of much importance. A maxim of +Henry Spigurnel, a judge in the time of Edward I., is reported, +that "where a man is killed by a cart, or by the fall of a house, +or in other like manner, and the thing in motion is the cause of +the death, it shall be deodand." /5/ So it was [26] said in the +next reign that "oinne illud quod mover cum eo quod occidit +homines deodandum domino Regi erit, vel feodo clerici." /1/ The +reader sees how motion gives life to the object forfeited. + +The most striking example of this sort is a ship. And accordingly +the old books say that, if a man falls from a ship and is +drowned, the motion of the ship must be taken to cause the death, +and the ship is forfeited,--provided, however, that this +happens in fresh water. /2/ For if the death took place on the +high seas, that was outside the ordinary jurisdiction. This +proviso has been supposed to mean that ships at sea were not +forfeited; /3/ but there is a long series of petitions to the +king in Parliament that such forfeitures may be done away with, +which tell a different story. /4/ The truth seems to be that the +forfeiture took place, but in a different court. A manuscript of +the reign of Henry VI., only recently printed, discloses the fact +that, if a man was killed or drowned at sea by the motion of the +ship, the vessel was forfeited to the admiral upon a proceeding +in the admiral's court, and subject to release by favor of the +admiral or the king. /5/ + +A ship is the most living of inanimate things. Servants sometimes +say "she" of a clock, but every one gives a gender to vessels. +And we need not be surprised, therefore, to find a mode of +dealing which has shown such extraordinary vitality in the +criminal law applied with even more striking thoroughness in the +Admiralty. It is only by supposing [27] the ship to have been +treated as if endowed with personality, that the arbitrary +seeming peculiarities of the maritime law can be made +intelligible, and on that supposition they at once become +consistent and logical. + +By way of seeing what those peculiarities are, take first a case +of collision at sea. A collision takes place between two vessels, +the Ticonderoga and the Melampus, through the fault of the +Ticonderoga alone. That ship is under a lease at the time, the +lessee has his own master in charge, and the owner of the vessel +has no manner of control over it. The owner, therefore, is not to +blame, and he cannot even be charged on the ground that the +damage was done by his servants. He is free from personal +liability on elementary principles. Yet it is perfectly settled +that there is a lien on his vessel for the amount of the damage +done, /1/ and this means that that vessel may be arrested and +sold to pay the loss in any admiralty court whose process will +reach her. If a livery-stable keeper lets a horse and wagon to a +customer, who runs a man down by careless driving, no one would +think of claiming a right to seize the horse and wagon. It would +be seen that the only property which could be sold to pay for a +wrong was the property of the wrong-doer. + +But, again, suppose that the vessel, instead of being under +lease, is in charge of a pilot whose employment is made +compulsory by the laws of the port which she is just entering. +The Supreme Court of the United States holds the ship liable in +this instance also. /2/ The English courts would probably have +decided otherwise, and the matter is settled in England by +legislation. But there the court of appeal, the Privy Council, +has been largely composed of common-law [28]lawyers, and it has +shown a marked tendency to assimilate common-law doctrine. At +common law one who could not impose a personal liability on the +owner could not bind a particular chattel to answer for a wrong +of which it had been the instrument. But our Supreme Court has +long recognized that a person may bind a ship, when he could not +bind the owners personally, because he was not the agent. + +It may be admitted that, if this doctrine were not supported by +an appearance of good sense, it would not have survived. The ship +is the only security available in dealing with foreigners, and +rather than send one's own citizens to search for a remedy abroad +in strange courts, it is easy to seize the vessel and satisfy the +claim at home, leaving the foreign owners to get their indemnity +as they may be able. I dare say some such thought has helped to +keep the practice alive, but I believe the true historic +foundation is elsewhere. The ship no doubt, like a sword would +have been forfeited for causing death, in whosesoever hands it +might have been. So, if the master and mariners of a ship, +furnished with letters of reprisal, committed piracy against a +friend of the king, the owner lost his ship by the admiralty law, +although the crime was committed without his knowledge or assent. +/2/ It seems most likely that the principle by which the ship was +forfeited to the king for causing death, or for piracy, was the +same as that by which it was bound to private sufferers for other +damage, in whose hands soever it might have been when it did the +harm. + +If we should say to an uneducated man today, "She did it and she +ought to pay for it," it may be doubted [29] whether he would see +the fallacy, or be ready to explain that the ship was only +property, and that to say, "The ship has to pay for it," /1/ was +simply a dramatic way of saying that somebody's property was to +be sold, and the proceeds applied to pay for a wrong committed by +somebody else. + +It would seem that a similar form of words has been enough to +satisfy the minds of great lawyers. The following is a passage +from a judgment by Chief Justice Marshall, which is quoted with +approval by Judge Story in giving the opinion of the Supreme +Court of the United States: "This is not a proceeding against the +owner; it is a proceeding against the vessel for an offence +committed by the vessel; which is not the less an offence, and +does not the less subject her to forfeiture, because it was +committed without the authority and against the will of the +owner. It is true that inanimate matter can commit no offence. +But this body is animated and put in action by the crew, who are +guided by the master. The vessel acts and speaks by the master. +She reports herself by the master. It is, therefore, not +unreasonable that the vessel should be affected by this report." +And again Judge Story quotes from another case: "The thing is +here primarily considered as the offender, or rather the offence +is primarily attached to the thing." /2/ + +In other words, those great judges, although of course aware that +a ship is no more alive than a mill-wheel, thought that not only +the law did in fact deal with it as if it were alive, but that it +was reasonable that the law should do so. The reader will observe +that they do not say simply that it is reasonable on grounds of +policy to [30] sacrifice justice to the owner to security for +somebody else but that it is reasonable to deal with the vessel +as an offending thing. Whatever the hidden ground of policy may +be, their thought still clothes itself in personifying language. + +Let us now go on to follow the peculiarities of the maritime law +in other directions. For the cases which have been stated are +only parts of a larger whole. + +By the maritime law of the Middle Ages the ship was not only the +source, but the limit, of liability. The rule already prevailed, +which has been borrowed and adopted by the English statutes and +by our own act of Congress of 1851, according to which the owner +is discharged from responsibility for wrongful acts of a master +appointed by himself upon surrendering his interest in the vessel +and the freight which she had earned. By the doctrines of agency +he would be personally liable for the whole damage. If the origin +of the system of limited liability which is believed to be so +essential to modern commerce is to be attributed to those +considerations of public policy on which it would now be +sustained, that system has nothing to do with the law of +collision. But if the limit of liability here stands on the same +ground as the noxoe deditio, confirms the explanation already +given of the liability of the ship for wrongs done by it while +out of the owner's hands, and conversely existence of that +liability confirms the argument here. + +Let us now take another rule, for which, as usual, there is a +plausible explanation of policy. Freight, it is said, the mother +of wages; for, we are told, "if the ship perished, [31] if the +mariners were to have their wages in such cases, they would not +use their endeavors, nor hazard their lives, for the safety of +the ship." /1/ The best commentary on this reasoning is, that the +law has recently been changed by statute. But even by the old law +there was an exception inconsistent with the supposed reason. In +case of shipwreck, which was the usual case of a failure to earn +freight, so long as any portion of the ship was saved, the lien +of the mariners remained. I suppose it would have been said, +because it was sound policy to encourage them to save all they +could. If we consider that the sailors were regarded as employed +by the ship, we shall understand very readily both the rule and +the exception. "The ship is the debtor," as was said in arguing a +case decided in the time of William III. /2/ If the debtor +perished, there was an end of the matter. If a part came ashore, +that might be proceeded against. + +Even the rule in its modern form, that freight is the mother of +wages, is shown by the explanation commonly given to have +reference to the question whether the ship is lost or arrive +safe. In the most ancient source of the maritime law now extant, +which has anything about the matter, so far as I have been able +to discover, the statement is that the mariners will lose their +wages when the ship is lost. /3/ In like manner, in what is said +by its English [32] editor, Sir Travers Twiss, to be the oldest +part of the Consulate of the Sea, /1/ we read that "whoever the +freighter may be who runs away or dies, the ship is bound to pay: +the mariners." /2/ I think we may assume that the vessel was +bound by the contract with the sailors, much in the same way as +it was by the wrongs for which it was answerable, just as the +debtor's body was answerable for his debts, as well as for his +crimes, under the ancient law of Rome. + +The same thing is true of other maritime dealings with the +vessel, whether by way of contract or otherwise. If salvage +service is rendered to a vessel, the admiralty court will hold +the vessel, although it has been doubted whether an action of +contract would lie, if the owners were sued at law. So the ship +is bound by the master's contract to carry cargo, just as in case +of collision, although she was under lease at the time. In such +cases, also, according to our Supreme Court, the master may bind +the vessel when he cannot bind the general owners. /4/ "By custom +the ship is bound to the merchandise, and the merchandise to the +ship." /5/ "By the maritime law every contract of the master +implies an hypothecation." /6/ It might be urged, no doubt, with +force, that, so far as the usual maritime contracts are +concerned, the dealing must be on the security of the ship or +merchandise in many cases, and therefore [33] that it is policy +to give this security in all cases; that the risk to which it +subjects ship-owners is calculable, and that they must take it +into account when they let their vessels. Again, in many cases, +when a party asserts a maritime lien by way of contract, he has +improved the condition of the thing upon which the lien is +claimed, and this has been recognized as a ground for such a lien +in some systems. But this is not true universally, nor in the +most important cases. It must be left to the reader to decide +whether ground has not been shown for believing that the same +metaphysical confusion which naturally arose as to the ship's +wrongful acts, affected the way of thinking as to her contracts. +The whole manner of dealing with vessels obviously took the form +which prevailed in the eases first mentioned. Pardessus, a high +authority, says that the lien for freight prevails even against +the owner of stolen goods, "as the master deals less with the +person than the thing." /2/ So it was said in the argument of a +famous English case, that "the ship is instead of the owner, and +therefore is answerable." /3/ In many cases of contract, as well +as tort, the vessel was not only the security for the debt, but +the limit of the owner's liability. + +The principles of the admiralty are embodied in its form of +procedure. A suit may be brought there against a vessel by name, +any person interested in it being at liberty to come in and +defend, but the suit, if successful, ending in a sale of the +vessel and a payment of the plaintiff's claim out of the +proceeds. As long ago as the time of James I. it was said that +"the libel ought to be only [34] against the ship and goods, and +not against the party." /1/ And authority for the statement was +cited from the reign of Henry VI., the same reign when, as we +have seen, the Admiral claimed a forfeiture of ships for causing +death. I am bound to say, however, that I cannot find such an +authority of that date. + +We have now followed the development of the chief forms of +liability in modern law for anything other than the immediate and +manifest consequences of a man's own acts. We have seen the +parallel course of events in the two parents,--the Roman law and +the German customs, and in the offspring of those two on English +soil with regard to servants, animals, and inanimate things. We +have seen a single germ multiplying and branching into products +as different from each other as the flower from the root. It +hardly remains to ask what that germ was. We have seen that it +was the desire of retaliation against the offending thing itself. +Undoubtedly, it might be argued that many of the rules stated +were derived from a seizure of the offending thing as security +for reparation, at first, perhaps, outside the law. That +explanation, as well as the one offered here; would show that +modern views of responsibility had not yet been attained, as the +owner of the thing might very well not have been the person in +fault. But such has not been the view of those most competent to +judge. A consideration of the earliest instances will show, as +might have been expected, that vengeance, not compensation, and +vengeance on the offending thing, was the original object. The ox +in Exodus was to be stoned. The axe in the Athenian law was to be +banished. The tree, in Mr. Tylor's instance, was to be chopped to +pieces. The [35] slave under all the systems was to be +surrendered to the relatives of the slain man, that they might do +with him what they liked. /1/ The deodand was an accursed thing. +The original limitation of liability to surrender, when the owner +was before the court, could not be accounted for if it was his +liability, and not that of his property, which was in question. +Even where, as in some of the cases, expiation seems to be +intended rather than vengeance, the object is equally remote from +an extrajudicial distress. + +The foregoing history, apart from the purposes for which it has +been given, well illustrates the paradox of form and substance in +the development of law. In form its growth is logical. The +official theory is that each new decision follows syllogistically +from existing precedents. But just as the clavicle in the cat +only tells of the existence of some earlier creature to which a +collar-bone was useful, precedents survive in the law long after +the use they once served is at an end and the reason for them has +been forgotten. The result of following them must often be +failure and confusion from the merely logical point of view. + +On the other hand, in substance the growth of the law is +legislative. And this in a deeper sense than that what the courts +declare to have always been the law is in fact new. It is +legislative in its grounds. The very considerations which judges +most rarely mention, and always with an apology, are the secret +root from which the law draws all the juices of life. I mean, of +course, considerations of what is expedient for the community +concerned. Every important principle which is developed by +litigation is in fact and at bottom the result of more or less +definitely understood views of public policy; most generally, to +be sure, [36] under our practice and traditions, the unconscious +result of instinctive preferences and inarticulate convictions, +but none the less traceable to views of public policy in the last +analysis. And as the law is administered by able and experienced +men, who know too much to sacrifice good sense to a syllogism, it +will be found that, when ancient rules maintain themselves in the +way that has been and will be shown in this book, new reasons +more fitted to the time have been found for them, and that they +gradually receive a new content, and at last a new form, from the +grounds to which they have been transplanted. + +But hitherto this process has been largely unconscious. It is +important, on that account, to bring to mind what the actual +course of events has been. If it were only to insist on a more +conscious recognition of the legislative function of the courts, +as just explained, it would be useful, as we shall see more +clearly further on. /1/ + +What has been said will explain the failure of all theories which +consider the law only from its formal side; whether they attempt +to deduce the corpus from a priori postulates, or fall into the +humbler error of supposing the science of the law to reside in +the elegantia juris, or logical cohesion of part with part. The +truth is, that the law always approaching, and never reaching, +consistency. It is forever adopting new principles from life at +one end, and it always retains old ones from history at the +other, which have not yet been absorbed or sloughed off. It +will become entirely consistent only when it ceases to grow. + +The study upon which we have been engaged is necessary both for +the knowledge and for the revision of the law. [37] However much +we may codify the law into a series of seemingly self-sufficient +propositions, those propositions will be but a phase in a +continuous growth. To understand their scope fully, to know how +they will be dealt with by judges trained in the past which the +law embodies, we must ourselves know something of that past. The +history of what the law has been is necessary to the knowledge of +what the law is. + +Again, the process which I have described has involved the +attempt to follow precedents, as well as to give a good reason +for them. When we find that in large and important branches of +the law the various grounds of policy on which the various rules +have been justified are later inventions to account for what are +in fact survivals from more primitive times, we have a right to +reconsider the popular reasons, and, taking a broader view of the +field, to decide anew whether those reasons are satisfactory. +They may be, notwithstanding the manner of their appearance. If +truth were not often suggested by error, if old implements could +not be adjusted to new uses, human progress would be slow. But +scrutiny and revision are justified. + +But none of the foregoing considerations, nor the purpose of +showing the materials for anthropology contained in the history +of the law, are the immediate object here. My aim and purpose +have been to show that the various forms of liability known to +modern law spring from the common ground of revenge. In the +sphere of contract the fact will hardly be material outside the +cases which have been stated in this Lecture. But in the criminal +law and the law of torts it is of the first importance. It shows +that they have started from a moral basis, from the thought that +some one was to blame. + +[38] It remains to be proved that, while the terminology of +morals is still retained, and while the law does still and +always, in a certain sense, measure legal liability by moral +standards, it nevertheless, by the very necessity of its nature, +is continually transmuting those moral standards into external or +objective ones, from which the actual guilt of the party +concerned is wholly eliminated. + + +[39] + + + + +LECTURE II. -- THE CRIMINAL LAW. + +In the beginning of the first Lecture it was shown that the +appeals of the early law were directed only to intentional +wrongs. The appeal was a far older form of procedure than the +indictment, and may be said to have had a criminal as well as a +civil aspect. It had the double object of satisfying the private +party for his loss, and the king for the breach of his peace. On +its civil side it was rooted in vengeance. It was a proceeding to +recover those compositions, at first optional, afterwards +compulsory, by which a wrong-doer bought the spear from his side. +Whether, so far as concerned the king, it had the same object of +vengeance, or was more particularly directed to revenue, does not +matter, since the claim of the king did not enlarge the scope of +the action. + +It would seem to be a fair inference that indictable offences +were originally limited in the same way as those which gave rise +to an appeal. For whether the indictment arose by a splitting up +of the appeal, or in some other way, the two were closely +connected. + +An acquittal of the appellee on the merits was a bar to an +indictment; and, on the other hand, when an appeal was fairly +started, although the appellor might fail to prosecute, or might +be defeated by plea, the cause might still be proceeded with on +behalf of the king. /1/ + +[40] The presentment, which is the other parent of our criminal +procedure, had an origin distinct from the appeal. If, as has +been thought, it was merely the successor of fresh suit and lynch +law, /1/ this also is the child of vengeance, even more clearly +than the other. + +The desire for vengeance imports an opinion that its object is +actually and personally to blame. It takes an internal standard, +not an objective or external one, and condemns its victim by +that. The question is whether such a standard is still accepted +either in this primitive form, or in some more refined +development, as is commonly supposed, and as seems not +impossible, considering the relative slowness with which the +criminal law has improved. + +It certainly may be argued, with some force, that it has never +ceased to be one object of punishment to satisfy the desire for +vengeance. The argument will be made plain by considering those +instances in which, for one reason or another, compensation for a +wrong is out of the question. + +Thus an act may be of such a kind as to make indemnity impossible +by putting an end to the principal sufferer, as in the case of +murder or manslaughter. + +Again, these and other crimes, like forgery, although directed +against an individual, tend to make others feel unsafe, and this +general insecurity does not admit of being paid for. + +Again, there are cases where there are no means of enforcing +indemnity. In Macaulay's draft of the Indian Penal Code, breaches +of contract for the carriage of passengers, were made criminal. +The palanquin-bearers of India were too poor to pay damages, and +yet had to be [41] trusted to carry unprotected women and +children through wild and desolate tracts, where their desertion +would have placed those under their charge in great danger. + +In all these cases punishment remains as an alternative. A pain +can be inflicted upon the wrong-doer, of a sort which does not +restore the injured party to his former situation, or to another +equally good, but which is inflicted for the very purpose of +causing pain. And so far as this punishment takes the place of +compensation, whether on account of the death of the person to +whom the wrong was done, the indefinite number of persons +affected, the impossibility of estimating the worth of the +suffering in money, or the poverty of the criminal, it may be +said that one of its objects is to gratify the desire for +vengeance. The prisoner pays with his body. + +The statement may be made stronger still, and it may be said, not +only that the law does, but that it ought to, make the +gratification of revenge an object. This is the opinion, at any +rate, of two authorities so great, and so opposed in other views, +as Bishop Butler and Jeremy Bentham. /1/ Sir James Stephen says, +"The criminal law stands to the passion of revenge in much the +same relation as marriage to the sexual appetite." /2/ + +The first requirement of a sound body of law is, that it should +correspond with the actual feelings and demands of the community, +whether right or wrong. If people would gratify the passion of +revenge outside of the law, if the law did not help them, the law +has no choice but to satisfy the craving itself, and thus avoid +the greater evil of private [42] retribution. At the same time, +this passion is not one which we encourage, either as private +individuals or as lawmakers. Moreover, it does not cover the +whole ground. There are crimes which do not excite it, and we +should naturally expect that the most important purposes of +punishment would be coextensive with the whole field of its +application. It remains to be discovered whether such a general +purpose exists, and if so what it is. Different theories still +divide opinion upon the subject. + +It has been thought that the purpose of punishment is to reform +the criminal; that it is to deter the criminal and others from +committing similar crimes; and that it is retribution. Few would +now maintain that the first of these purposes was the only one. +If it were, every prisoner should be released as soon as it +appears clear that he will never repeat his offence, and if he is +incurable he should not be punished at all. Of course it would be +hard to reconcile the punishment of death with this doctrine. + +The main struggle lies between the other two. On the one side is +the notion that there is a mystic bond between wrong and +punishment; on the other, that the infliction of pain is only a +means to an end. Hegel, one of the great expounders of the former +view, puts it, in his quasi mathematical form, that, wrong being +the negation of right, punishment is the negation of that +negation, or retribution. Thus the punishment must be equal, in +the sense of proportionate to the crime, because its only +function is to destroy it. Others, without this logical +apparatus, are content to rely upon a felt necessity that +suffering should follow wrong-doing. + +It is objected that the preventive theory is immoral, because it +overlooks the ill-desert of wrong-doing, and furnishes [43] no +measure of the amount of punishment, except the lawgiver's +subjective opinion in regard to the sufficiency of the amount of +preventive suffering. /1/ In the language of Kant, it treats man +as a thing, not as a person; as a means, not as an end in +himself. It is said to conflict with the sense of justice, and to +violate the fundamental principle of all free communities, that +the members of such communities have equal rights to life, +liberty, and personal security. /2/ + +In spite of all this, probably most English-speaking lawyers +would accept the preventive theory without hesitation. As to the +violation of equal rights which is charged, it may be replied +that the dogma of equality makes an equation between individuals +only, not between an individual and the community. No society has +ever admitted that it could not sacrifice individual welfare to +its own existence. If conscripts are necessary for its army, it +seizes them, and marches them, with bayonets in their rear, to +death. It runs highways and railroads through old family places +in spite of the owner's protest, paying in this instance the +market value, to be sure, because no civilized government +sacrifices the citizen more than it can help, but still +sacrificing his will and his welfare to that of the rest. /3/ + +If it were necessary to trench further upon the field of morals, +it might be suggested that the dogma of equality applied even to +individuals only within the limits of ordinary dealings in the +common run of affairs. You cannot argue with your neighbor, +except on the admission for the [44] moment that he is as wise as +you, although you may by no means believe it. In the same way, +you cannot deal with him, where both are free to choose, except +on the footing of equal treatment, and the same rules for both. +The ever-growing value set upon peace and the social relations +tends to give the law of social being the appearance of the law +of all being. But it seems to me clear that the ultima ratio, not +only regum, but of private persons, is force, and that at the +bottom of all private relations, however tempered by sympathy and +all the social feelings, is a justifiable self-preference. If a +man is on a plank in the deep sea which will only float one, and +a stranger lays hold of it, he will thrust him off if he can. +When the state finds itself in a similar position, it does the +same thing. + +The considerations which answer the argument of equal rights also +answer the objections to treating man as a thing, and the like. +If a man lives in society, he is liable to find himself so +treated. The degree of civilization which a people has reached, +no doubt, is marked by their anxiety to do as they would be done +by. It may be the destiny of man that the social instincts shall +grow to control his actions absolutely, even in anti-social +situations. But they have not yet done so, and as the rules of +law are or should be based upon a morality which is generally +accepted, no rule founded on a theory of absolute unselfishness +can be laid down without a breach between law and working +beliefs. + +If it be true, as I shall presently try to show, that the general +principles of criminal and civil liability are the same, it will +follow from that alone that theory and fact agree in frequently +punishing those who have been guilty [45] of no moral wrong, and +who could not be condemned by any standard that did not avowedly +disregard the personal peculiarities of the individuals +concerned. If punishment stood on the moral grounds which are +proposed for it, the first thing to be considered would be those +limitations in the capacity for choosing rightly which arise from +abnormal instincts, want of education, lack of intelligence, and +all the other defects which are most marked in the criminal +classes. I do not say that they should not be, or at least I do +not need to for my argument. I do not say that the criminal law +does more good than harm. I only say that it is not enacted or +administered on that theory. + +There remains to be mentioned the affirmative argument in favor +of the theory of retribution, to the effect that the fitness of +punishment following wrong-doing is axiomatic, and is +instinctively recognized by unperverted minds. I think that it +will be seen, on self-inspection, that this feeling of fitness is +absolute and unconditional only in the case of our neighbors. It +does not seem to me that any one who has satisfied himself that +an act of his was wrong, and that he will never do it again, +would feel the least need or propriety, as between himself and an +earthly punishing power alone, of his being made to suffer for +what he had done, although, when third persons were introduced, +he might, as a philosopher, admit the necessity of hurting him to +frighten others. But when our neighbors do wrong, we sometimes +feel the fitness of making them smart for it, whether they have +repented or not. The feeling of fitness seems to me to be only +vengeance in disguise, and I have already admitted that vengeance +was an element, though not the chief element, of punishment. + +[46] But, again, the supposed intuition of fitness does not seem +to me to be coextensive with the thing to be accounted for. The +lesser punishments are just as fit for the lesser crimes as the +greater for the greater. The demand that crime should be followed +by its punishment should therefore be equal and absolute in both. +Again, a malum prohibitum is just as much a crime as a malum in +se. If there is any general ground for punishment, it must apply +to one case as much as to the other. But it will hardly be said +that, if the wrong in the case just supposed consisted of a +breach of the revenue laws, and the government had been +indemnified for the loss, we should feel any internal necessity +that a man who had thoroughly repented of his wrong should be +punished for it, except on the ground that his act was known to +others. If it was known, the law would have to verify its threats +in order that others might believe and tremble. But if the fact +was a secret between the sovereign and the subject, the +sovereign, if wholly free from passion, would undoubtedly see +that punishment in such a case was wholly without justification. + +On the other hand, there can be no case in which the law-maker +makes certain conduct criminal without his thereby showing a wish +and purpose to prevent that conduct. Prevention would accordingly +seem to be the chief and only universal purpose of punishment. +The law threatens certain pains if you do certain things, +intending thereby to give you a new motive for not doing them. If +you persist in doing them, it has to inflict the pains in order +that its threats may continue to be believed. + +If this is a true account of the law as it stands, the law does +undoubtedly treat the individual as a means to an [47] end, and +uses him as a tool to increase the general welfare at his own +expense. It has been suggested above, that this course is +perfectly proper; but even if it is wrong, our criminal law +follows it, and the theory of our criminal law must be shaped +accordingly. + +Further evidence that our law exceeds the limits of retribution, +and subordinates consideration of the individual to that of the +public well-being, will be found in some doctrines which cannot +be satisfactorily explained on any other ground. + +The first of these is, that even the deliberate taking of life +will not be punished when it is the only way of saving one's own. +This principle is not so clearly established as that next to be +mentioned; but it has the support of very great authority. /1/ If +that is the law, it must go on one of two grounds, either that +self-preference is proper in the case supposed, or that, even if +it is improper, the law cannot prevent it by punishment, because +a threat of death at some future time can never be a sufficiently +powerful motive to make a man choose death now in order to avoid +the threat. If the former ground is adopted, it admits that a +single person may sacrifice another to himself, and a fortiori +that a people may. If the latter view is taken, by abandoning +punishment when it can no longer be expected to prevent an act, +the law abandons the retributive and adopts the preventive +theory. + +The next doctrine leads to still clearer conclusions. Ignorance +of the law is no excuse for breaking it. This substantive +principle is sometimes put in the form of a rule of evidence, +that every one is presumed to know the [48] law. It has +accordingly been defended by Austin and others, on the ground of +difficulty of proof. If justice requires the fact to be +ascertained, the difficulty of doing so is no ground for refusing +to try. But every one must feel that ignorance of the law could +never be admitted as an excuse, even if the fact could be proved +by sight and hearing in every case. Furthermore, now that parties +can testify, it may be doubted whether a man's knowledge of the +law is any harder to investigate than many questions which are +gone into. The difficulty, such as it is, would be met by +throwing the burden of proving ignorance on the lawbreaker. + +The principle cannot be explained by saying that we are not only +commanded to abstain from certain acts, but also to find out that +we are commanded. For if there were such a second command, it is +very clear that the guilt of failing to obey it would bear no +proportion to that of disobeying the principal command if known, +yet the failure to know would receive the same punishment as the +failure to obey the principal law. + +The true explanation of the rule is the same as that which +accounts for the law's indifference to a man's particular +temperament, faculties, and so forth. Public policy sacrifices +the individual to the general good. It is desirable that the +burden of all should be equal, but it is still more desirable to +put an end to robbery and murder. It is no doubt true that there +are many cases in which the criminal could not have known that he +was breaking the law, but to admit the excuse at all would be to +encourage ignorance where the law-maker has determined to make +men know and obey, and justice to the individual is rightly +outweighed by the larger interests on the other side of the +scales. + +[49] If the foregoing arguments are sound, it is already manifest +that liability to punishment cannot be finally and absolutely +determined by considering the actual personal unworthiness of the +criminal alone. That consideration will govern only so far as the +public welfare permits or demands. And if we take into account +the general result which the criminal law is intended to bring +about, we shall see that the actual state of mind accompanying a +criminal act plays a different part from what is commonly +supposed. + +For the most part, the purpose of the criminal law is only to +induce external conformity to rule. All law is directed to +conditions of things manifest to the senses. And whether it +brings those conditions to pass immediately by the use of force, +as when it protects a house from a mob by soldiers, or +appropriates private property to public use, or hangs a man in +pursuance of a judicial sentence, or whether it brings them about +mediately through men's fears, its object is equally an external +result. In directing itself against robbery or murder, for +instance, its purpose is to put a stop to the actual physical +taking and keeping of other men's goods, or the actual poisoning, +shooting, stabbing, and otherwise putting to death of other men. +If those things are not done, the law forbidding them is equally +satisfied, whatever the motive. + +Considering this purely external purpose of the law together with +the fact that it is ready to sacrifice the individual so far as +necessary in order to accomplish that purpose, we can see more +readily than before that the actual degree of personal guilt +involved in any particular transgression cannot be the only +element, if it is an element at all, in the liability incurred. +So far from its [50] being true, as is often assumed, that the +condition of a man's heart or conscience ought to be more +considered in determining criminal than civil liability, it might +almost be said that it is the very opposite of truth. For civil +liability, in its immediate working, is simply a redistribution +of an existing loss between two individuals; and it will be +argued in the next Lecture that sound policy lets losses lie +where they fall, except where a special reason can be shown for +interference. The most frequent of such reasons is, that the +party who is charged has been to blame. + +It is not intended to deny that criminal liability, as well as +civil, is founded on blameworthiness. Such a denial would shock +the moral sense of any civilized community; or, to put it another +way, a law which punished conduct which would not be blameworthy +in the average member of the community would be too severe for +that community to bear. It is only intended to point out that, +when we are dealing with that part of the law which aims more +directly than any other at establishing standards of conduct, we +should expect there more than elsewhere to find that the tests of +liability are external, and independent of the degree of evil in +the particular person's motives or intentions. The conclusion +follows directly from the nature of the standards to which +conformity is required. These are not only external, as was shown +above, but they are of general application. They do not merely +require that every man should get as near as he can to the best +conduct possible for him. They require him at his own peril to +come up to a certain height. They take no account of +incapacities, unless the weakness is so marked as to fall into +well-known exceptions, such as infancy or madness. [51] They +assume that every man is as able as every other to behave as they +command. If they fall on any one class harder than on another, it +is on the weakest. For it is precisely to those who are most +likely to err by temperament, ignorance, or folly, that the +threats of the law are the most dangerous. + +The reconciliation of the doctrine that liability is founded on +blameworthiness with the existence of liability where the party +is not to blame, will be worked out more fully in the next +Lecture. It is found in the conception of the average man, the +man of ordinary intelligence and reasonable prudence. Liability +is said to arise out of such conduct as would be blameworthy in +him. But he is an ideal being, represented by the jury when they +are appealed to, and his conduct is an external or objective +standard when applied to any given individual. That individual +may be morally without stain, because he has less than ordinary +intelligence or prudence. But he is required to have those +qualities at his peril. If he has them, he will not, as a general +rule, incur liability without blameworthiness. + +The next step is to take up some crimes in detail, and to +discover what analysis will teach with regard to them. + +I will begin with murder. Murder is defined by Sir James Stephen, +in his Digest of Criminal Law, /1/ as unlawful homicide with +malice aforethought. In his earlier work, /2/ he explained that +malice meant wickedness, and that the law had determined what +states of mind were wicked in the necessary degree. Without the +same preliminary he continues in his Digest as follows:-- + +[52] "Malice aforethought means any one or more of the following +states of mind..... "(a.) An intention to cause the death of, or +grievous bodily harm to, any person, whether such person is the +person actually killed or not; "(b.) Knowledge that the act which +causes death will probably cause the death of, or grievous bodily +harm to, some person, whether such person is the person actually +killed or not, although such knowledge is accompanied by +indifference whether death or grievous bodily harm is caused or +not, or by a wish that it may not be caused; "(c.) An intent to +commit any felony whatever; "(d.) An intent to oppose by force +any officer of justice on his way to, in, or returning from the +execution of the duty of arresting, keeping in custody, or +imprisoning any person whom he is lawfully entitled to arrest, +keep in custody, or imprison, or the duty of keeping the peace or +dispersing an unlawful assembly, provided that the offender has +notice that the person killed is such an officer so employed." + +Malice, as used in common speech, includes intent, and something +more. When an act is said to be done with an intent to do harm, +it is meant that a wish for the harm is the motive of the act. +Intent, however, is perfectly consistent with the harm being +regretted as such, and being wished only as a means to something +else. But when an act is said to be done maliciously, it is +meant, not only that a wish for the harmful effect is the motive, +but also that the harm is wished for its own sake, or, as Austin +would say with more accuracy, for the sake of the pleasurable +feeling which knowledge of the suffering caused by the act would +excite. Now it is apparent from Sir James [53] Stephen's +enumeration, that of these two elements of malice the intent +alone is material to murder. It is just as much murder to shoot a +sentry for the purpose of releasing a friend, as to shoot him +because you hate him. Malice, in the definition of murder, has +not the same meaning as in common speech, and, in view of the +considerations just mentioned, it has been thought to mean +criminal intention. /1/ + +But intent again will be found to resolve itself into two things; +foresight that certain consequences will follow from an act, and +the wish for those consequences working as a motive which induces +the act. The question then is, whether intent, in its turn, +cannot be reduced to a lower term. Sir James Stephen's statement +shows that it can be, and that knowledge that the act will +probably cause death, that is, foresight of the consequences of +the act, is enough in murder as in tort. + +For instance, a newly born child is laid naked out of doors, +where it must perish as a matter of course. This is none the less +murder, that the guilty party would have been very glad to have a +stranger find the child and save it. /2/ + +But again, What is foresight of consequences? It is a picture of +a future state of things called up by knowledge of the present +state of things, the future being viewed as standing to the +present in the relation of effect to cause. Again, we must seek a +reduction to lower terms. If the known present state of things is +such that the act done will very certainly cause death, and the +probability is a matter of common knowledge, one who does the +act, [54] knowing the present state of things, is guilty of +murder, and the law will not inquire whether he did actually +foresee the consequences or not. The test of foresight is not +what this very criminal foresaw, but what a man of reasonable +prudence would have foreseen. + +On the other hand, there must be actual present knowledge of the +present facts which make an act dangerous. The act is not enough +by itself. An act, it is true, imports intention in a certain +sense. It is a muscular contraction, and something more. A spasm +is not an act. The contraction of the muscles must be willed. And +as an adult who is master of himself foresees with mysterious +accuracy the outward adjustment which will follow his inward +effort, that adjustment may be said to be intended. But the +intent necessarily accompanying the act ends there. Nothing would +follow from the act except for the environment. All acts, taken +apart from their surrounding circumstances, are indifferent to +the law. For instance, to crook the forefinger with a certain +force is the same act whether the trigger of a pistol is next to +it or not. It is only the surrounding circumstances of a pistol +loaded and cocked, and of a human being in such relation to it, +as to be manifestly likely to be hit, that make the act a wrong. +Hence, it is no sufficient foundation for liability, on any sound +principle, that the proximate cause of loss was an act. + +The reason for requiring an act is, that an act implies a choice, +and that it is felt to be impolitic and unjust to make a man +answerable for harm, unless he might have chosen otherwise. But +the choice must be made with a chance of contemplating the +consequence complained of, or else it has no bearing on +responsibility for that consequence. [55] If this were not true, +a man might be held answerable for everything which would not +have happened but for his choice at some past time. For instance, +for having in a fit fallen on a man, which he would not have done +had he not chosen to come to the city where he was taken ill. + +All foresight of the future, all choice with regard to any +possible consequence of action, depends on what is known at the +moment of choosing. An act cannot be wrong, even when done under +circumstances in which it will be hurtful, unless those +circumstances are or ought to be known. A fear of punishment for +causing harm cannot work as a motive, unless the possibility of +harm may be foreseen. So far, then, as criminal liability is +founded upon wrong-doing in any sense, and so far as the threats +and punishments of the law are intended to deter men from +bringing about various harmful results, they must be confined to +cases where circumstances making the conduct dangerous were +known. + +Still, in a more limited way, the same principle applies to +knowledge that applies to foresight. It is enough that such +circumstances were actually known as would have led a man of +common understanding to infer from them the rest of the group +making up the present state of things. For instance, if a workman +on a house-top at mid-day knows that the space below him is a +street in a great city, he knows facts from which a man of common +understanding would infer that there were people passing below. +He is therefore bound to draw that inference, or, in other words, +is chargeable with knowledge of that fact also, whether he draws +the inference or not. If then, he throws down a heavy beam into +the street, he does an act [56] which a person of ordinary +prudence would foresee is likely to cause death, or grievous +bodily harm, and he is dealt with as if he foresaw it, whether he +does so in fact or not. If a death is caused by the act, he is +guilty of murder. /1/ But if the workman has reasonable cause to +believe that the space below is a private yard from which every +one is excluded, and which is used as a rubbish heap, his act is +not blameworthy, and the homicide is a mere misadventure. + +To make an act which causes death murder, then, the actor ought, +on principle, to know, or have notice of the facts which make the +act dangerous. There are certain exceptions to this principle +which will be stated presently, but they have less application to +murder than to some smaller statutory crimes. The general rule +prevails for the most part in murder. + +But furthermore, on the same principle, the danger which in fact +exists under the known circumstances ought to be of a class which +a man of reasonable prudence could foresee. Ignorance of a fact +and inability to foresee a consequence have the same effect on +blameworthiness. If a consequence cannot be foreseen, it cannot +be avoided. But there is this practical difference, that whereas, +in most cases, the question of knowledge is a question of the +actual condition of the defendant's consciousness, the question +of what he might have foreseen is determined by the standard of +the prudent man, that is, by general experience. For it is to be +remembered that the object of the law is to prevent human life +being endangered or taken; and that, although it so far considers +blameworthiness in punishing as not to hold a man responsible for +consequences which [57] no one, or only some exceptional +specialist, could have foreseen, still the reason for this +limitation is simply to make a rule which is not too hard for the +average member of the community. As the purpose is to compel men +to abstain from dangerous conduct, and not merely to restrain +them from evil inclinations, the law requires them at their peril +to know the teachings of common experience, just as it requires +them to know the law. Subject to these explanations, it may be +said that the test of murder is the degree of danger to life +attending the act under the known circumstances of the case. /1/ + +It needs no further explanation to show that, when the particular +defendant does for any reason foresee what an ordinary man of +reasonable prudence would not have foreseen, the ground of +exemption no longer applies. A harmful act is only excused on the +ground that the party neither did foresee, nor could with proper +care have foreseen harm. + +It would seem, at first sight, that the above analysis ought to +exhaust the whole subject of murder. But it does not without some +further explanation. If a man forcibly resists an officer +lawfully making an arrest, and kills him, knowing him to be an +officer, it may be murder, although no act is done which, but for +his official function, would be criminal at all. So, if a man +does an act with intent to commit a felony, and thereby +accidentally kills another; for instance, if he fires at +chickens, intending to steal them, and accidentally kills the +owner, whom he does not see. Such a case as this last seems +hardly to be reconcilable with the general principles which have +been laid down. It has been argued somewhat as [58] follows:--The +only blameworthy act is firing at the chickens, knowing them to +belong to another. It is neither more nor less so because an +accident happens afterwards; and hitting a man, whose presence +could not have been suspected, is an accident. The fact that the +shooting is felonious does not make it any more likely to kill +people. If the object of the rule is to prevent such accidents, +it should make accidental killing with firearms murder, not +accidental killing in the effort to steal; while, if its object +is to prevent stealing, it would do better to hang one thief in +every thousand by lot. + +Still, the law is intelligible as it stands. The general test of +murder is the degree of danger attending the acts under the known +state of facts. If certain acts are regarded as peculiarly +dangerous under certain circumstances, a legislator may make them +punishable if done under these circumstances, although the danger +was not generally known. The law often takes this step, although +it does not nowadays often inflict death in such cases. It +sometimes goes even further, and requires a man to find out +present facts, as well as to foresee future harm, at his peril, +although they are not such as would necessarily be inferred from +the facts known. + +Thus it is a statutory offence in England to abduct a girl under +sixteen from the possession of the person having lawful charge of +her. If a man does acts which induce a girl under sixteen to +leave her parents, he is not chargeable, if he had no reason to +know that she was under the lawful charge of her parents, /1/ and +it may be presumed that he would not be, if he had reasonable +cause to believe that she was a boy. But if he knowingly abducts +a girl from [59] her parents, he must find out her age at his +peril. It is no defence that he had every reason to think her +over sixteen. /1/ So, under a prohibitory liquor law, it has been +held that, if a man sells "Plantation Bitters," it is no defence +that he does not know them to be intoxicating. /2/ And there are +other examples of the same kind. + +Now, if experience shows, or is deemed by the law-maker to show, +that somehow or other deaths which the evidence makes accidental +happen disproportionately often in connection with other +felonies, or with resistance to officers, or if on any other +ground of policy it is deemed desirable to make special efforts +for the prevention of such deaths, the lawmaker may consistently +treat acts which, under the known circumstances, are felonious, +or constitute resistance to officers, as having a sufficiently +dangerous tendency to be put under a special ban. The law may, +therefore, throw on the actor the peril, not only of the +consequences foreseen by him, but also of consequences which, +although not predicted by common experience, the legislator +apprehends. I do not, however, mean to argue that the rules under +discussion arose on the above reasoning, any more than that they +are right, or would be generally applied in this country. + +Returning to the main line of thought it will be instructive to +consider the relation of manslaughter to murder. One great +difference between the two will be found to lie in the degree of +danger attaching to the act in the given state of facts. If a man +strikes another with a small stick which is not likely to kill, +and which he has no reason to suppose will do more than slight +bodily harm, but which [60] does kill the other, he commits +manslaughter, not murder. /1/ But if the blow is struck as hard +as possible with an iron bar an inch thick, it is murder. /2/ So +if, at the time of striking with a switch, the party knows an +additional fact, by reason of which he foresees that death will +be the consequence of a slight blow, as, for instance, that the +other has heart disease, the offence is equally murder. /3/ To +explode a barrel of gunpowder in a crowded street, and kill +people, is murder, although the actor hopes that no such harm +will be done. /4/ But to kill a man by careless riding in the +same street would commonly be manslaughter. /5/ Perhaps, however, +a case could be put where the riding was so manifestly dangerous +that it would be murder. + +To recur to an example which has been used already for another +purpose: "When a workman flings down a stone or piece of timber +into the street, and kills a man; this may be either +misadventure, manslaughter, or murder, according to the +circumstances under which the original act was done: if it were +in a country village, where few passengers are, and he calls out +to all people to have a care, it is misadventure only; but if it +were in London, or other populous town, where people are +continually passing, it is manslaughter, though he gives loud +warning; and murder, if he knows of their passing, and gives no +warning at all." /6/ + +The law of manslaughter contains another doctrine [61] which +should be referred to in order to complete the understanding of +the general principles of the criminal law. This doctrine is, +that provocation may reduce an offence which would otherwise have +been murder to manslaughter. According to current morality, a man +is not so much to blame for an act done under the disturbance of +great excitement, caused by a wrong done to himself, as when he +is calm. The law is made to govern men through their motives, and +it must, therefore, take their mental constitution into account. + +It might be urged, on the other side, that, if the object of +punishment is prevention, the heaviest punishment should be +threatened where the strongest motive is needed to restrain; and +primitive legislation seems sometimes to have gone on that +principle. But if any threat will restrain a man in a passion, a +threat of less than death will be sufficient, and therefore the +extreme penalty has been thought excessive. + +At the same time the objective nature of legal standards is shown +even here. The mitigation does not come from the fact that the +defendant was beside himself with rage. It is not enough that he +had grounds which would have had the same effect on every man of +his standing and education. The most insulting words are not +provocation, although to this day, and still more when the law +was established, many people would rather die than suffer them +without action. There must be provocation sufficient to justify +the passion, and the law decides on general considerations what +provocations are sufficient. + +It is said that even what the law admits to be "provocation does +not extenuate the guilt of homicide, unless the person provoked +is at the time when he does the deed [62] deprived of the power +of self-control by the provocation which he has received." /1/ +There are obvious reasons for taking the actual state of the +defendant's consciousness into account to this extent. The only +ground for not applying the general rule is, that the defendant +was in such a state that he could not be expected to remember or +be influenced by the fear of punishment; if he could be, the +ground of exception disappears. Yet even here, rightly or +wrongly, the law has gone far in the direction of adopting +external tests. The courts seem to have decided between murder +and manslaughter on such grounds as the nature of the weapon +used, /2/ or the length of time between the provocation and the +act. /3/ But in other cases the question whether the prisoner was +deprived of self-control by passion has been left to the jury. +/4/ + +As the object of this Lecture is not to give an outline of the +criminal law, but to explain its general theory, I shall only +consider such offences as throw some special light upon the +subject, and shall treat of those in such order as seems best +fitted for that purpose. It will now be useful to take up +malicious mischief, and to compare the malice required to +constitute that offence with the malice aforethought of murder. + +The charge of malice aforethought in an indictment for murder has +been shown not to mean a state of the defendant's mind, as is +often thought, except in the sense that he knew circumstances +which did in fact make his conduct dangerous. It is, in truth, an +allegation like that of negligence, which asserts that the party +accused did not [63] come up to the legal standard of action +under the circumstances in which he found himself, and also that +there was no exceptional fact or excuse present which took the +case out of the general rule. It is an averment of a conclusion +of law which is permitted to abridge the facts (positive and +negative) on which it is founded. + +When a statute punishes the "wilfully and maliciously" injuring +another's property, it is arguable, if not clear, that something +more is meant. The presumption that the second word was not added +without some meaning is seconded by the unreasonableness of +making every wilful trespass criminal. /1/ If this reasoning +prevails, maliciously is here used in its popular sense, and +imports that the motive for the defendant's act was a wish to +harm the owner of the property, or the thing itself, if living, +as an end, and for the sake of the harm. Malice in this sense has +nothing in common with the malice of murder. + +Statutory law need not profess to be consistent with itself, or +with the theory adopted by judicial decisions. Hence there is +strictly no need to reconcile such a statute with the principles +which have been explained. But there is no inconsistency. +Although punishment must be confined to compelling external +conformity to a rule of conduct, so far that it can always be +avoided by avoiding or doing certain acts as required, with +whatever intent or for whatever motive, still the prohibited +conduct may not be hurtful unless it is accompanied by a +particular state of feeling. + +Common disputes about property are satisfactorily settled by +compensation. But every one knows that sometimes secret harm is +done by neighbor to neighbor out of [64] pure malice and spite. +The damage can be paid for, but the malignity calls for revenge, +and the difficulty of detecting the authors of such wrongs, which +are always done secretly, affords a ground for punishment, even +if revenge is thought insufficient. + +How far the law will go in this direction it is hard to say. The +crime of arson is defined to be the malicious and wilful burning +of the house of another man, and is generally discussed in close +connection with malicious mischief. It has been thought that the +burning was not malicious where a prisoner set fire to his +prison, not from a desire to consume the building, but solely to +effect his escape. But it seems to be the better opinion that +this is arson, /1/ in which case an intentional burning is +malicious within the meaning of the rule. When we remember that +arson was the subject of one of the old appeals which take us far +back into the early law, /2/ we may readily understand that only +intentional burnings were redressed in that way. /3/ The appeal +of arson was brother to the appeal de pace et plagis. As the +latter was founded on a warlike assault, the former supposed a +house-firing for robbery or revenge, /4/ such as that by which +Njal perished in the Icelandic Saga. But this crime seems to have +had the same history as others. As soon as intent is admitted to +be sufficient, the law is on the high-road to an external +standard. A man who intentionally sets fire to his own house, +which is so near to other houses that the fire will manifestly +endanger them, is guilty of arson if one of the other houses is +burned in consequence. /5/ In this case, an act which would not +[65] have been arson, taking only its immediate consequences into +account, becomes arson by reason of more remote consequences +which were manifestly likely to follow, whether they were +actually intended or not. If that may be the effect of setting +fire to things which a man has a right to burn, so far as they +alone are concerned, why, on principle, should it not be the +effect of any other act which is equally likely under the +surrounding circumstances to cause the same harm. /1/ Cases may +easily be imagined where firing a gun, or making a chemical +mixture, or piling up oiled rags, or twenty other things, might +be manifestly dangerous in the highest degree and actually lead +to a conflagration. If, in such cases, the crime is held to have +been committed, an external standard is reached, and the analysis +which has been made of murder applies here. + +There is another class of cases in which intent plays an +important part, for quite different reasons from those which have +been offered to account for the law of malicious mischief. The +most obvious examples of this class are criminal attempts. +Attempt and intent, of course, are two distinct things. Intent to +commit a crime is not itself criminal. There is no law against a +man's intending to commit a murder the day after tomorrow. The +law only deals with conduct. An attempt is an overt act. It +differs from the attempted crime in this, that the act has failed +to bring about the result which would have given it the character +of the principal crime. If an attempt to murder results in death +within a year and a day, it is murder. If an attempt to steal +results in carrying off the owner's goods, it is larceny. + +If an act is done of which the natural and probable [66] effect +under the circumstances is the accomplishment of a substantive +crime, the criminal law, while it may properly enough moderate +the severity of punishment if the act has not that effect in the +particular case, can hardly abstain altogether from punishing it, +on any theory. It has been argued that an actual intent is all +that can give the act a criminal character in such instances. /1/ +But if the views which I have advanced as to murder and +manslaughter are sound, the same principles ought logically to +determine the criminality of acts in general. Acts should be +judged by their tendency under the known circumstances, not by +the actual intent which accompanies them. + +It may be true that in the region of attempts, as elsewhere, the +law began with cases of actual intent, as those cases are the +most obvious ones. But it cannot stop with them, unless it +attaches more importance to the etymological meaning of the word +attempt than to the general principles of punishment. Accordingly +there is at least color of authority for the proposition that an +act is punishable as an attempt, if, supposing it to have +produced its natural and probable effect, it would have amounted +to a substantive crime. /2/ + +But such acts are not the only punishable attempts. There is +another class in which actual intent is clearly necessary, and +the existence of this class as well as the name (attempt) no +doubt tends to affect the whole doctrine. Some acts may be +attempts or misdemeanors which [67] could not have effected the +crime unless followed by other acts on the part of the +wrong-doer. For instance, lighting a match with intent to set +fire to a haystack has been held to amount to a criminal attempt +to burn it, although the defendant blew out the match on seeing +that he was watched. /1/ So the purchase of dies for making +counterfeit coin is a misdemeanor, although of course the coin +would not be counterfeited unless the dies were used. /2/ + +In such cases the law goes on a new principle, different from +that governing most substantive crimes. The reason for punishing +any act must generally be to prevent some harm which is foreseen +as likely to follow that act under the circumstances in which it +is done. In most substantive crimes the ground on which that +likelihood stands is the common working of natural causes as +shown by experience. But when an act is punished the natural +effect of which is not harmful under the circumstances, that +ground alone will not suffice. The probability does not exist +unless there are grounds for expecting that the act done will be +followed by other acts in connection with which its effect will +be harmful, although not so otherwise. But as in fact no such +acts have followed, it cannot, in general, be assumed, from the +mere doing of what has been done, that they would have followed +if the actor had not been interrupted. They would not have +followed it unless the actor had chosen, and the only way +generally available to show that he would have chosen to do them +is by showing that he intended to do them when he did what he +did. The accompanying intent in that case renders the otherwise +[68] innocent act harmful, because it raises a probability that +it will be followed by such other acts and events as will all +together result in harm. The importance of the intent is not to +show that the act was wicked, but to show that it was likely to +be followed by hurtful consequences. + +It will be readily seen that there are limits to this kind of +liability. The law does not punish every act which is done with +the intent to bring about a crime. If a man starts from Boston to +Cambridge for the purpose of committing a murder when he gets +there, but is stopped by the draw and goes home, he is no more +punishable than if he had sat in his chair and resolved to shoot +somebody, but on second thoughts had given up the notion. On the +other hand, a slave who ran after a white woman, but desisted +before he caught her, has been convicted of an attempt to commit +rape. /1/ We have seen what amounts to an attempt to burn a +haystack; but it was said in the same case, that, if the +defendant had gone no further than to buy a box of matches for +the purpose, he would not have been liable. + +Eminent judges have been puzzled where to draw the line, or even +to state the principle on which it should be drawn, between the +two sets of cases. But the principle is believed to be similar to +that on which all other lines are drawn by the law. Public +policy, that is to say, legislative considerations, are at the +bottom of the matter; the considerations being, in this case, the +nearness of the danger, the greatness of the harm, and the degree +of apprehension felt. When a man buys matches to fire a haystack, +or starts on a journey meaning to murder at the end of it, there +is still a considerable chance that he will [69] change his mind +before he comes to the point. But when he has struck the match, +or cocked and aimed the pistol, there is very little chance that +he will not persist to the end, and the danger becomes so great +that the law steps in. With an object which could not be used +innocently, the point of intervention might be put further back, +as in the case of the purchase of a die for coining. + +The degree of apprehension may affect the decision, as well as +the degree of probability that the crime will be accomplished. No +doubt the fears peculiar to a slaveowning community had their +share in the conviction which has just been mentioned. + +There is one doubtful point which should not be passed over. It +has been thought that to shoot at a block of wood thinking it to +be a man is not an attempt to murder, /1/ and that to put a hand +into an empty pocket, intending to pick it, is not an attempt to +commit larceny, although on the latter question there is a +difference of opinion. /2/ The reason given is, that an act which +could not have effected the crime if the actor had been allowed +to follow it up to all results to which in the nature of things +it could have led, cannot be an attempt to commit that crime when +interrupted. At some point or other, of course, the law must +adopt this conclusion, unless it goes on the theory of +retribution for guilt, and not of prevention of harm. + +But even to prevent harm effectually it will not do to be too +exact. I do not suppose that firing a pistol at a man with intent +to kill him is any the less an attempt to murder because the +bullet misses its aim. Yet there the act has produced the whole +effect possible to it in the [70] course of nature. It is just as +impossible that that bullet under those circumstances should hit +that man, as to pick an empty pocket. But there is no difficulty +in saying that such an act under such circumstances is so +dangerous, so far as the possibility of human foresight is +concerned, that it should be punished. No one can absolutely +know, though many would be pretty sure, exactly where the bullet +will strike; and if the harm is done, it is a very great harm. If +a man fires at a block, no harm can possibly ensue, and no theft +can be committed in an empty pocket, besides that the harm of +successful theft is less than that of murder. Yet it might be +said that even such things as these should be punished, in order +to make discouragement broad enough and easy to understand. + +There remain to be considered certain substantive crimes, which +differ in very important ways from murder and the like, and for +the explanation of which the foregoing analysis of intent in +criminal attempts and analogous misdemeanors will be found of +service. + +The type of these is larceny. Under this name acts are punished +which of themselves would not be sufficient to accomplish the +evil which the law seeks to prevent, and which are treated as +equally criminal, whether the evil has been accomplished or not. +Murder, manslaughter, and arson, on the other hand, are not +committed unless the evil is accomplished, and they all consist +of acts the tendency of which under the surrounding circumstances +is to hurt or destroy person or property by the mere working of +natural laws. + +In larceny the consequences immediately flowing from the act are +generally exhausted with little or no harm to the owner. Goods +are removed from his possession by [71] trespass, and that is +all, when the crime is complete. But they must be permanently +kept from him before the harm is done which the law seeks to +prevent. A momentary loss of possession is not what has been +guarded against with such severe penalties. What the law means to +prevent is the loss of it wholly and forever, as is shown by the +fact that it is not larceny to take for a temporary use without +intending to deprive the owner of his property. If then the law +punishes the mere act of taking, it punishes an act which will +not of itself produce the evil effect sought to be prevented, and +punishes it before that effect has in any way come to pass. + +The reason is plain enough. The law cannot wait until the +property has been used up or destroyed in other hands than the +owner's, or until the owner has died, in order to make sure that +the harm which it seeks to prevent has been done. And for the +same reason it cannot confine itself to acts likely to do that +harm. For the harm of permanent loss of property will not follow +from the act of taking, but only from the series of acts which +constitute removing and keeping the property after it has been +taken. After these preliminaries, the bearing of intent upon the +crime is easily seen. + +According to Mr. Bishop, larceny is "the taking and removing, by +trespass, of personal property which the trespasser knows to +belong either generally or specially to another, with the intent +to deprive such owner of his ownership therein; and perhaps it +should be added, for the sake of some advantage to the +trespasser, a proposition on which the decisions are not +harmonious." /1/ + +There must be an intent to deprive such owner of his [72] +ownership therein, it is said. But why? Is it because the law is +more anxious not to put a man in prison for stealing unless he is +actually wicked, than it is not to hang him for killing another? +That can hardly be. The true answer is, that the intent is an +index to the external event which probably would have happened, +and that, if the law is to punish at all, it must, in this case, +go on probabilities, not on accomplished facts. The analogy to +the manner of dealing with attempts is plain. Theft may be called +an attempt to permanently deprive a man of his property, which is +punished with the same severity whether successful or not. If +theft can rightly be considered in this way, intent must play the +same part as in other attempts. An act which does not fully +accomplish the prohibited result may be made wrongful by evidence +that but for some interference it would have been followed by +other acts co-ordinated with it to produce that result. This can +only be shown by showing intent. In theft the intent to deprive +the owner of his property establishes that the thief would have +retained, or would not have taken steps to restore, the stolen +goods. Nor would it matter that the thief afterwards changed his +mind and returned the goods. From the point of view of attempt, +the crime was already complete when the property was carried off. + +It may be objected to this view, that, if intent is only a +makeshift which from a practical necessity takes the place of +actual deprivation, it ought not to be required where the actual +deprivation is wholly accomplished, provided the same criminal +act produces the whole effect. Suppose, for instance, that by one +and the same motion a man seizes and backs another's horse over a +precipice. The whole evil which the law seeks to prevent is the +natural and manifestly [73] certain consequence of the act under +the known circumstances. In such a case, if the law of larceny is +consistent with the theories here maintained, the act should be +passed upon according to its tendency, and the actual intent of +the wrong-doer not in any way considered. Yet it is possible, to +say the least, that even in such a case the intent would make all +the difference. I assume that the act was without excuse and +wrongful, and that it would have amounted to larceny, if done for +the purpose of depriving the owner of his horse. Nevertheless, if +it was done for the sake of an experiment, and without actual +foresight of the destruction, or evil design against the owner, +the trespasser might not be held a thief. + +The inconsistency, if there is one, seems to be explained by the +way in which the law has grown. The distinctions of the common +law as to theft are not those of a broad theory of legislation; +they are highly technical, and very largely dependent upon +history for explanation. /1/ + +The type of theft is taking to one's own user It used to be, and +sometimes still is, thought that the taking must be lucri catesa, +for the sake of some advantage to the thief. In such cases the +owner is deprived of his property by the thief's keeping it, not +by its destruction, and the permanence of his loss can only be +judged of beforehand by the intent to keep. The intent is +therefore always necessary, and it is naturally stated in the +form of a self-regarding intent. It was an advance on the old +precedents when it was decided that the intent to deprive the +owner of his property was sufficient. As late as 1815 the English +judges stood only six to five in favor of the proposition [74] +that it was larceny to take a horse intending to kill it for no +other purpose than to destroy evidence against a friend. /1/ Even +that case, however, did not do away with the universality of +intent as a test, for the destruction followed the taking, and it +is an ancient rule that the criminality of the act must be +determined by the state of things at the time of the taking, and +not afterwards. Whether the law of larceny would follow what +seems to be the general principle of criminal law, or would be +held back by tradition, could only be decided by a case like that +supposed above, where the same act accomplishes both taking and +destruction. As has been suggested already, tradition might very +possibly prevail. + +Another crime in which the peculiarities noticed in larceny are +still more clearly marked, and at the same time more easily +explained, is burglary. It is defined as breaking and entering +any dwelling-house by night with intent to commit a felony +therein. /2/ The object of punishing such a breaking and entering +is not to prevent trespasses, even when committed by night, but +only such trespasses as are the first step to wrongs of a greater +magnitude, like robbery or murder. /3/ In this case the function +of intent when proved appears more clearly than in theft, but it +is precisely similar. It is an index to the probability of +certain future acts which the law seeks to prevent. And here the +law gives evidence that this is the true explanation. For if the +apprehended act did follow, then it is no longer necessary to +allege that the breaking and entering was with that intent. An +indictment for burglary which charges that [75] the defendant +broke into a dwelling-house and stole certain property, is just +as good as one which alleges that he broke in with intent to +steal. /1/ + +It is believed that enough has now been said to explain the +general theory of criminal liability, as it stands at common law. +The result may be summed up as follows. All acts are indifferent +per se. + +In the characteristic type of substantive crime acts are rendered +criminal because they are done finder circumstances in which they +will probably cause some harm which the law seeks to prevent. + +The test of criminality in such cases is the degree of danger +shown by experience to attend that act under those circumstances. + +In such cases the mens rea, or actual wickedness of the party, is +wholly unnecessary, and all reference to the state of his +consciousness is misleading if it means anything more than that +the circumstances in connection with which the tendency of his +act is judged are the circumstances known to him. Even the +requirement of knowledge is subject to certain limitations. A man +must find out at his peril things which a reasonable and prudent +man would have inferred from the things actually known. In some +cases, especially of statutory crimes, he must go even further, +and, when he knows certain facts, must find out at his peril +whether the other facts are present which would make the act +criminal. A man who abducts a girl from her parents in England +must find out at his peril whether she is under sixteen. + +[76] In some cases it may be that the consequence of the act, +under the circumstances, must be actually foreseen, if it is a +consequence which a prudent man would not have foreseen. The +reference to the prudent man, as a standard, is the only form in +which blameworthiness as such is an element of crime, and what +would be blameworthy in such a man is an element;--first, as a +survival of true moral standards; second, because to punish what +would not be blameworthy in an average member of the community +would be to enforce a standard which was indefensible +theoretically, and which practically was too high for that +community. + +In some cases, actual malice or intent, in the common meaning of +those words, is an element in crime. But it will be found that, +when it is so, it is because the act when done maliciously is +followed by harm which would not have followed the act alone, or +because the intent raises a strong probability that an act, +innocent in itself, will be followed by other acts or events in +connection with which it will accomplish the result sought to be +prevented by the law. + + +[77] + + + + +LECTURE III. -- TORTS.--TRESPASS AND NEGLIGENCE. + +The object of the next two Lectures is to discover whether there +is any common ground at the bottom of all liability in tort, and +if so, what that ground is. Supposing the attempt to succeed, it +will reveal the general principle of civil liability at common +law. The liabilities incurred by way of contract are more or less +expressly fixed by the agreement of the parties concerned, but +those arising from a tort are independent of any previous consent +of the wrong-doer to bear the loss occasioned by his act. If A +fails to pay a certain sum on a certain day, or to deliver a +lecture on a certain night, after having made a binding promise +to do so, the damages which he has to pay are recovered in +accordance with his consent that some or all of the harms which +may be caused by his failure shall fall upon him. But when A +assaults or slanders his neighbor, or converts his neighbor's +property, he does a harm which he has never consented to bear, +and if the law makes him pay for it, the reason for doing so must +be found in some general view of the conduct which every one may +fairly expect and demand from every other, whether that other has +agreed to it or not. + +Such a general view is very hard to find. The law did not begin +with a theory. It has never worked one out. The point from which +it started and that at which I shall [78] try to show that it has +arrived, are on different planes. In the progress from one to the +other, it is to be expected that its course should not be +straight and its direction not always visible. All that can be +done is to point out a tendency, and to justify it. The tendency, +which is our main concern, is a matter of fact to be gathered +from the cases. But the difficulty of showing it is much enhanced +by the circumstance that, until lately, the substantive law has +been approached only through the categories of the forms of +action. Discussions of legislative principle have been darkened +by arguments on the limits between trespass and case, or on the +scope of a general issue. In place of a theory of tort, we have a +theory of trespass. And even within that narrower limit, +precedents of the time of the assize and jurata have been applied +without a thought of their connection with a long forgotten +procedure. + +Since the ancient forms of action have disappeared, a broader +treatment of the subject ought to be possible. Ignorance is the +best of law reformers. People are glad to discuss a question on +general principles, when they have forgotten the special +knowledge necessary for technical reasoning. But the present +willingness to generalize is founded on more than merely negative +grounds. The philosophical habit of the day, the frequency of +legislation, and the ease with which the law may be changed to +meet the opinions and wishes of the public, all make it natural +and unavoidable that judges as well as others should openly +discuss the legislative principles upon which their decisions +must always rest in the end, and should base their judgments upon +broad considerations of policy to which the traditions of the +bench would hardly have tolerated a reference fifty years ago. + +[79] The business of the law of torts is to fix the dividing +lines between those cases in which a man is liable for harm which +he has done, and those in which he is not. But it cannot enable +him to predict with certainty whether a given act under given +circumstances will make him liable, because an act will rarely +have that effect unless followed by damage, and for the most +part, if not always, the consequences of an act are not known, +but only guessed at as more or less probable. All the rules that +the law can lay down beforehand are rules for determining the +conduct which will be followed by liability if it is followed by +harm--that is, the conduct which a man pursues at his peril. The +only guide for the future to be drawn from a decision against a +defendant in an action of tort is that similar acts, under +circumstances which cannot be distinguished except by the result +from those of the defendant, are done at the peril of the actor; +that if he escapes liability, it is simply because by good +fortune no harm comes of his conduct in the particular event. + +If, therefore, there is any common ground for all liability in +tort, we shall best find it by eliminating the event as it +actually turns out, and by considering only the principles on +which the peril of his conduct is thrown upon the actor. We are +to ask what are the elements, on the defendant's side, which must +all be present before liability is possible, and the presence of +which will commonly make him liable if damage follows. + +The law of torts abounds in moral phraseology. It has much to say +of wrongs, of malice, fraud, intent, and negligence. Hence it may +naturally be supposed that the risk of a man's conduct is thrown +upon him as the result of some moral short-coming. But while this +notion has been [80] entertained, the extreme opposite will be +found to have been a far more popular opinion;--I mean the notion +that a man is answerable for all the consequences of his acts, +or, in other words, that he acts at his peril always, and wholly +irrespective of the state of his consciousness upon the matter. + +To test the former opinion it would be natural to take up +successively the several words, such as negligence and intent, +which in the language of morals designate various well-understood +states of mind, and to show their significance in the law. To +test the latter, it would perhaps be more convenient to consider +it under the head of the several forms of action. So many of our +authorities are decisions under one or another of these forms, +that it will not be safe to neglect them, at least in the first +instance; and a compromise between the two modes of approaching +the subject may be reached by beginning with the action of +trespass and the notion of negligence together, leaving wrongs +which are defined as intentional for the next Lecture. + +Trespass lies for unintentional, as well as for intended wrongs. +Any wrongful and direct application of force is redressed by that +action. It therefore affords a fair field for a discussion of the +general principles of liability for unintentional wrongs at +common law. For it can hardly be supposed that a man's +responsibility for the consequences of his acts varies as the +remedy happens to fall on one side or the other of the penumbra +which separates trespass from the action on the case. And the +greater part of the law of torts will be found under one or the +other of those two heads. + +It might be hastily assumed that the action on the case [81] is +founded on the defendant's negligence. But if that be so, the +same doctrine must prevail in trespass. It might be assumed that +trespass is founded on the defendant's having caused damage by +his act, without regard to negligence. But if that be true, the +law must apply the same criterion to other wrongs differing from +trespass only in some technical point; as, for instance, that the +property damaged was in the defendant's possession. Neither of +the above assumptions, however, can be hastily permitted. It +might very well be argued that the action on the case adopts the +severe rule just suggested for trespass, except when the action +is founded on a contract. Negligence, it might be said, had +nothing to do with the common-law liability for a nuisance, and +it might be added that, where negligence was a ground of +liability, a special duty had to be founded in the defendant's +super se assumpsit, or public calling. /1/ On the other hand, we +shall see what can be said for the proposition, that even in +trespass there must at least be negligence. But whichever +argument prevails for the one form of action must prevail for the +other. The discussion may therefore be shortened on its technical +side, by confining it to trespass so far as may be practicable +without excluding light to be got from other parts of the law. + +As has just been hinted, there are two theories of the common-law +liability for unintentional harm. Both of them seem to receive +the implied assent of popular textbooks, and neither of them is +wanting in plausibility and the semblance of authority. + +The first is that of Austin, which is essentially the theory of a +criminalist. According to him, the characteristic [82] feature of +law, properly so called, is a sanction or detriment threatened +and imposed by the sovereign for disobedience to the sovereign's +commands. As the greater part of the law only makes a man civilly +answerable for breaking it, Austin is compelled to regard the +liability to an action as a sanction, or, in other words, as a +penalty for disobedience. It follows from this, according to the +prevailing views of penal law, that such liability ought only to +be based upon personal fault; and Austin accepts that conclusion, +with its corollaries, one of which is that negligence means a +state of the party's mind. /1/ These doctrines will be referred +to later, so far as necessary. + +The other theory is directly opposed to the foregoing. It seems +to be adopted by some of the greatest common law authorities, and +requires serious discussion before it can be set aside in favor +of any third opinion which may be maintained. According to this +view, broadly stated, under the common law a man acts at his +peril. It may be held as a sort of set-off, that he is never +liable for omissions except in consequence of some duty +voluntarily undertaken. But the whole and sufficient ground for +such liabilities as he does incur outside the last class is +supposed to be that he has voluntarily acted, and that damage has +ensued. If the act was voluntary, it is totally immaterial that +the detriment which followed from it was neither intended nor due +to the negligence of the actor. + +In order to do justice to this way of looking at the subject, we +must remember that the abolition of the common-law forms of +pleading has not changed the rules of substantive law. Hence, +although pleaders now generally [83] allege intent or negligence, +anything which would formerly have been sufficient to charge a +defendant in trespass is still sufficient, notwithstanding the +fact that the ancient form of action and declaration has +disappeared. + +In the first place, it is said, consider generally the protection +given by the law to property, both within and outside the limits +of the last-named action. If a man crosses his neighbor's +boundary by however innocent a mistake, or if his cattle escape +into his neighbor's field, he is said to be liable in trespass +quare clausum fregit. If an auctioneer in the most perfect good +faith, and in the regular course of his business, sells goods +sent to his rooms for the purpose of being sold, he may be +compelled to pay their full value if a third person turns out to +be the owner, although he has paid over the proceeds, and has no +means of obtaining indemnity. + +Now suppose that, instead of a dealing with the plaintiff's +property, the case is that force has proceeded directly from the +defendant's body to the plaintiff's body, it is urged that, as +the law cannot be less careful of the persons than of the +property of its subjects, the only defences possible are similar +to those which would have been open to an alleged trespass on +land. You may show that there was no trespass by showing that the +defendant did no act; as where he was thrown from his horse upon +the plaintiff, or where a third person took his hand and struck +the plaintiff with it. In such cases the defendant's body is file +passive instrument of an external force, and the bodily motion +relied on by the plaintiff is not his act at all. So you may show +a justification or excuse in the conduct of the plaintiff +himself. But if no such excuse is shown, and the defendant has +voluntarily acted, he must answer [84] for the consequences, +however little intended and however unforeseen. If, for instance, +being assaulted by a third person, the defendant lifted his stick +and accidentally hit the plaintiff, who was standing behind him, +according to this view he is liable, irrespective of any +negligence toward the party injured. + +The arguments for the doctrine under consideration are, for the +most part, drawn from precedent, but it is sometimes supposed to +be defensible as theoretically sound. Every man, it is said, has +an absolute right to his person, and so forth, free from +detriment at the hands of his neighbors. In the cases put, the +plaintiff has done nothing; the defendant, on the other hand, has +chosen to act. As between the two, the party whose voluntary +conduct has caused the damage should suffer, rather than one who +has had no share in producing it. + +We have more difficult matter to deal with when we turn to the +pleadings and precedents in trespass. The declaration says +nothing of negligence, and it is clear that the damage need not +have been intended. The words vi et armis and contra pacere, +which might seem to imply intent, are supposed to have been +inserted merely to give jurisdiction to the king's court. +Glanvill says it belongs to the sheriff, in case of neglect on +the part of lords of franchise, to take cognizance of melees, +blows, and even wounds, unless the accuser add a charge of breach +of the king's peace (nisi accusator adjiciat de pace Domini Regis +infracta). /1/ Reeves observes, "In this distinction between the +sheriff's jurisdiction and that of the king, we see the reason of +the allegation in modern indictments and writs, vi et amis, of +'the king's crown and dignity,' 'the king's [85] peace,' and 'the +peace,'--this last expression being sufficient, after the peace +of the sheriff had ceased to be distinguished as a separate +jurisdiction." /1/ + +Again, it might be said that, if the defendant's intent or +neglect was essential to his liability, the absence of both would +deprive his act of the character of a trespass, and ought +therefore to be admissible under the general issue. But it is +perfectly well settled at common law that "Not guilty" only +denies the act. /2/ + +Next comes the argument from authority. I will begin with an +early and important case. /3/ It was trespass quare clausum. The +defendant pleaded that he owned adjoining land, upon which was a +thorn hedge; that he cut the thorns, and that they, against his +will (ipso invito), fell on the plaintiff's land, and the +defendant went quickly upon the same, and took them, which was +the trespass complained of. And on demurrer judgment was given +for the plaintiff. The plaintiff's counsel put cases which have +been often repeated. One of them, Fairfax, said: "There is a +diversity between an act resulting in a felony, and one resulting +in a trespass.... If one is cutting trees, and the boughs fall +on a man and wound him, in this case he shall have an action of +trespass, &c., and also, sir, if one is shooting at butts, and +his bow shakes in his hands, and kills a man, ipso invito, it is +no felony, as has been said, [86] &c.; but if he wounds one by +shooting, he shall have a good action of trespass against him, +and yet the shooting was lawful, &c., and the wrong which the +other receives was against his will, &c.; and so here, &c." +Brian, another counsel, states the whole doctrine, and uses +equally familiar illustrations. "When one does a thing, he is +bound to do it in such a way that by his act no prejudice or +damage shall be done to &c. As if I am building a house, and when +the timber is being put up a piece of timber falls on my +neighbor's house and breaks his house, he shall have a good +action, &c.; and yet the raising of the house was lawful, and the +timber fell, me invito, &c. And so if one assaults me and I +cannot escape, and I in self-defence lift my stick to strike him, +and in lifting it hit a man who is behind me, in this case he +shall have an action against me, yet my raising my stick was +lawful in self-defence, and I hit him, me invito, &c.; and so +here, &C." + + +"Littleton, J. to the same intent, and if a man is damaged he +ought to be recompensed.... If your cattle come on my land and +eat my grass, notwithstanding you come freshly and drive them +out, you ought to make amends for what your cattle have done, be +it more or less.... And, sir, if this should be law that he +might enter and take the thorns, for the same reason, if he cut a +large tree, he might come with his wagons and horses to carry the +trees off, which is not reason, for perhaps he has corn or other +crops growing, &c., and no more here, for the law is all one in +great things and small.... Choke, C. J. to the same intent, for +when the principal thing was not lawful, that which depends upon +it was not lawful; for when he cut the thorns and they fell on my +land, [87] this falling was not lawful, and therefore his coming +to take them out was not lawful. As to what was said about their +falling in ipso invito, that is no plea, but he ought to show +that he could not do it in any other way, or that he did all that +was in his power to keep them out." + +Forty years later, /1/ the Year Books report Rede, J. as adopting +the argument of Fairfax in the last case. In trespass, he says, +"the intent cannot be construed; but in felony it shall be. As +when a man shoots at butts and kills a man, it is not felony et +il ser come n'avoit l'entent de luy tuer; and so of a tiler on a +house who with a stone kills a man unwittingly, it is not felony. +/2/ But when a man shoots at the butts and wounds a man, though +it is against his will, he shall be called a trespasser against +his intent." + +There is a series of later shooting cases, Weaver v. Ward, /3/ +Dickenson v. Watson, /4/ and Underwood v. Hewson, /5/ followed by +the Court of Appeals of New York in Castle v. Duryee, /6/ in +which defences to the effect that the damage was done +accidentally and by misfortune, and against the will of the +defendant, were held insufficient. + +In the reign of Queen Elizabeth it was held that where a man with +a gun at the door of his house shot at a fowl, and thereby set +fire to his own house and to the house of his neighbor, he was +liable in an action on the case generally, the declaration not +being on the custom of the realm, [88] "viz. for negligently +keeping his fire." "For the injury is the same, although this +mischance was not by a common negligence, but by misadventure." +/1/ + +The above-mentioned instances of the stick and shooting at butts +became standard illustrations; they are repeated by Sir Thomas +Raymond, in Bessey v. Olliot, /2/ by Sir William Blackstone, in +the famous squib case, /3/ and by other judges, and have become +familiar through the textbooks. Sir T. Raymond, in the above +case, also repeats the thought and almost the words of Littleton, +J., which have been quoted, and says further: "In all civil acts +the law doth not so much regard the intent of the actor, as the +loss and damage of the party suffering." Sir William Blackstone +also adopts a phrase from Dickenson v. Watson, just cited: +"Nothing but inevitable necessity" is a justification. So Lord +Ellenborough, in Leame v. Bray: /4/ "If the injury were received +from the personal act of another, it was deemed sufficient to +make it trespass"; or, according to the more frequently quoted +language of Grose, J., in the same case: "Looking into all the +cases from the Year Book in the 21 H. VII. down to the latest +decision on the subject, I find the principle to be, that if the +injury be done by the act of the party himself at the time, or he +be the immediate cause of it, though it happen accidentally or by +misfortune, yet he is answerable in trespass." Further citations +are deemed unnecessary. + +In spite, however, of all the arguments which may be [89] urged +for the rule that a man acts at his peril, it has been rejected +by very eminent courts, even under the old forms of action. In +view of this fact, and of the further circumstance that, since +the old forms have been abolished, the allegation of negligence +has spread from the action on the case to all ordinary +declarations in tort which do not allege intent, probably many +lawyers would be surprised that any one should think it worth +while to go into the present discussion. Such is the natural +impression to be derived from daily practice. But even if the +doctrine under consideration had no longer any followers, which +is not the case, it would be well to have something more than +daily practice to sustain our views upon so fundamental a +question; as it seems to me at least, the true principle is far +from being articulately grasped by all who are interested in it, +and can only be arrived at after a careful analysis of what has +been thought hitherto. It might be thought enough to cite the +decisions opposed to the rule of absolute responsibility, and to +show that such a rule is inconsistent with admitted doctrines and +sound policy. But we may go further with profit, and inquire +whether there are not strong grounds for thinking that the common +law has never known such a rule, unless in that period of dry +precedent which is so often to be found midway between a creative +epoch and a period of solvent philosophical reaction. +Conciliating the attention of those who, contrary to most modern +practitioners, still adhere to the strict doctrine, by reminding +them once more that there are weighty decisions to be cited +adverse to it, and that, if they have involved an innovation, the +fact that it has been made by such magistrates as Chief Justice +Shaw goes far to prove that the change was politic, I [90] think +I may assert that a little reflection will show that it was +required not only by policy, but by consistency. I will begin +with the latter. + +The same reasoning which would make a man answerable in trespass +for all damage to another by force directly resulting from his +own act, irrespective of negligence or intent, would make him +answerable in case for the like damage similarly resulting from +the act of his servant, in the course of the latter's employment. +The discussions of the company's negligence in many railway cases +would therefore be wholly out of place, for although, to be sure, +there is a contract which would make the company liable for +negligence, that contract cannot be taken to diminish any +liability which would otherwise exist for a trespass on the part +of its employees. + +More than this, the same reasoning would make a defendant +responsible for all damage, however remote, of which his act +could be called the cause. So long, at least, as only physical or +irresponsible agencies, however unforeseen, co-operated with the +act complained of to produce the result, the argument which would +resolve the case of accidentally striking the plaintiff, when +lifting a stick in necessary self-defence, adversely to the +defendant, would require a decision against him in every case +where his act was a factor in the result complained of. The +distinction between a direct application of force, and causing +damage indirectly, or as a more remote consequence of one's act, +although it may determine whether the form of action should be +trespass or case, does not touch the theory of responsibility, if +that theory be that a man acts at his peril. + +[91] As was said at the outset, if the strict liability is to be +maintained at all, it must be maintained throughout. A principle +cannot be stated which would retain the strict liability in +trespass while abandoning it in case. It cannot be said that +trespass is for acts alone, and case for consequences of those +acts. All actions of trespass are for consequences of acts, not +for the acts themselves. And some actions of trespass are for +consequences more remote from the defendant's act than in other +instances where the remedy would be case. + +An act is always a voluntary muscular contraction, and nothing +else. The chain of physical sequences which it sets in motion or +directs to the plaintiff's harm is no part of it, and very +generally a long train of such sequences intervenes. An example +or two will make this extremely clear. + +When a man commits an assault and battery with a pistol, his only +act is to contract the muscles of his arm and forefinger in a +certain way, but it is the delight of elementary writers to point +out what a vast series of physical changes must take place before +the harm is done. Suppose that, instead of firing a pistol, he +takes up a hose which is discharging water on the sidewalk, and +directs it at the plaintiff, he does not even set in motion the +physical causes which must co-operate with his act to make a +battery. Not only natural causes, but a living being, may +intervene between the act and its effect. Gibbons v. Pepper, /1/ +which decided that there was no battery when a man's horse was +frightened by accident or a third person and ran away with him, +and ran over the plaintiff, takes the distinction that, if the +rider by spurring is the cause of [92] the accident, then he is +guilty. In Scott v. Shepherd, /1/ already mentioned, trespass was +maintained against one who had thrown a squib into a crowd, where +it was tossed from hand to hand in self-defence until it burst +and injured the plaintiff. Here even human agencies were a part +of the chain between the defendant's act and the result, although +they were treated as more or less nearly automatic, in order to +arrive at the decision. + +Now I repeat, that, if principle requires us to charge a man in +trespass when his act has brought force to bear on another +through a comparatively short train of intervening causes, in +spite of his having used all possible care, it requires the same +liability, however numerous and unexpected the events between the +act and the result. If running a man down is a trespass when the +accident can be referred to the rider's act of spurring, why is +it not a tort in every case, as was argued in Vincent v. +Stinehour, /2/ seeing that it can always be referred more +remotely to his act of mounting and taking the horse out? + +Why is a man not responsible for the consequences of an act +innocent in its direct and obvious effects, when those +consequences would not have followed but for the intervention of +a series of extraordinary, although natural, events? The reason +is, that, if the intervening events are of such a kind that no +foresight could have been expected to look out for them, the +defendant is not to blame for having failed to do so. It seems to +be admitted by the English judges that, even on the question +whether the acts of leaving dry trimmings in hot weather by the +side of a railroad, and then sending an engine over the track, +are [93] negligent,--that is, are a ground of liability,--the +consequences which might reasonably be anticipated are material. +/1/ Yet these are acts which, under the circumstances, can hardly +be called innocent in their natural and obvious effects. The same +doctrine has been applied to acts in violation of statute which +could not reasonably have been expected to lead to the result +complained of. /2/ + +But there is no difference in principle between the case where a +natural cause or physical factor intervenes after the act in some +way not to be foreseen, and turns what seemed innocent to harm, +and the case where such a cause or factor intervenes, unknown, at +the time; as, for the matter of that, it did in the English cases +cited. If a man is excused in the one case because he is not to +blame, he must be in the other. The difference taken in Gibbons +v. Pepper, cited above, is not between results which are and +those which are not the consequences of the defendant's acts: it +is between consequences which he was bound as a reasonable man to +contemplate, and those which he was not. Hard spurring is just so +much more likely to lead to harm than merely riding a horse in +the street, that the court thought that the defendant would be +bound to look out for the consequences of the one, while it would +not hold him liable for those resulting merely from the other; +[94] because the possibility of being run away with when riding +quietly, though familiar, is comparatively slight. If, however, +the horse had been unruly, and had been taken into a frequented +place for the purpose of being broken, the owner might have been +liable, because "it was his fault to bring a wild horse into a +place where mischief might probably be done." + +To return to the example of the accidental blow with a stick +lifted in self-defence, there is no difference between hitting a +person standing in one's rear and hitting one who was pushed by a +horse within range of the stick just as it was lifted, provided +that it was not possible, under the circumstances, in the one +case to have known, in the other to have anticipated, the +proximity. In either case there is wanting the only element which +distinguishes voluntary acts from spasmodic muscular contractions +as a ground of liability. In neither of them, that is to say, has +there been an opportunity of choice with reference to the +consequence complained of,--a chance to guard against the result +which has come to pass. A choice which entails a concealed +consequence is as to that consequence no choice. + +The general principle of our law is that loss from accident must +lie where it falls, and this principle is not affected by the +fact that a human being is the instrument of misfortune. But +relatively to a given human being anything is accident which he +could not fairly have been expected to contemplate as possible, +and therefore to avoid. In the language of the late Chief Justice +Nelson of New York: "No case or principle can be found, or if +found can be maintained, subjecting an individual to liability +for [95] an act done without fault on his part.... All the cases +concede that an injury arising from inevitable accident, or, +which in law or reason is the same thing, from an act that +ordinary human care and foresight are unable to guard against, is +but the misfortune of the sufferer, and lays no foundation for +legal responsibility." /1/ If this were not so, any act would be +sufficient, however remote, which set in motion or opened the +door for a series of physical sequences ending in damage; such as +riding the horse, in the case of the runaway, or even coming to a +place where one is seized with a fit and strikes the plaintiff in +an unconscious spasm. Nay, why need the defendant have acted at +all, and why is it not enough that his existence has been at the +expense of the plaintiff? The requirement of an act is the +requirement that the defendant should have made a choice. But the +only possible purpose of introducing this moral element is to +make the power of avoiding the evil complained of a condition of +liability. There is no such power where the evil cannot be +foreseen. /2/ Here we reach the argument from policy, and I shall +accordingly postpone for a moment the discussion of trespasses +upon land, and of conversions, and will take up the liability for +cattle separately at a later stage. + +A man need not, it is true, do this or that act, the term act +implies a choice,--but he must act somehow. Furthermore, the +public generally profits by individual activity. As action cannot +be avoided, and tends to the public good, there is obviously no +policy in throwing the hazard of what is at once desirable and +inevitable upon the actor. [96] The state might conceivably make +itself a mutual insurance company against accidents, and +distribute the burden of its citizens' mishaps among all its +members. There might be a pension for paralytics, and state aid +for those who suffered in person or estate from tempest or wild +beasts. As between individuals it might adopt the mutual +insurance principle pro tanto, and divide damages when both were +in fault, as in the rusticum judicium of the admiralty, or it +might throw all loss upon the actor irrespective of fault. The +state does none of these things, however, and the prevailing view +is that its cumbrous and expensive machinery ought not to be set +in motion unless some clear benefit is to be derived from +disturbing the status quo. State interference is an evil, where +it cannot be shown to be a good. Universal insurance, if desired, +can be better and more cheaply accomplished by private +enterprise. The undertaking to redistribute losses simply on the +ground that they resulted from the defendant's act would not only +be open to these objections, but, as it is hoped the preceding +discussion has shown, to the still graver one of offending the +sense of justice. Unless my act is of a nature to threaten +others, unless under the circumstances a prudent man would have +foreseen the possibility of harm, it is no more justifiable to +make me indemnify my neighbor against the consequences, than to +make me do the same thing if I had fallen upon him in a fit, or +to compel me to insure him against lightning. + +I must now recur to the conclusions drawn from innocent +trespasses upon land, and conversions, and the supposed analogy +of those cases to trespasses against the person, lest the law +concerning the latter should be supposed to lie between two +antinomies, each necessitating with equal cogency an opposite +conclusion to the other. + +[97] Take first the case of trespass upon land attended by actual +damage. When a man goes upon his neighbor's land, thinking it is +his own, he intends the very act or consequence complained of. He +means to intermeddle with a certain thing in a certain way, and +it is just that intended intermeddling for which he is sued. /1/ +Whereas, if he accidentally hits a stranger as he lifts his staff +in self defence, the fact, which is the gist of the +action,--namely, the contact between the staff and his neighbor's +head,--was not intended, and could not have been foreseen. It +might be answered, to be sure, that it is not for intermeddling +with property, but for intermeddling with the plaintiff's +property, that a man is sued; and that in the supposed cases, +just as much as in that of the accidental blow, the defendant is +ignorant of one of the facts making up the total environment, and +which must be present to make his action wrong. He is ignorant, +that is to say, that the true owner either has or claims any +interest in the property in question, and therefore he does not +intend a wrongful act, because he does not mean to deal with his +neighbor's property. But the answer to this is, that he does +intend to do the damage complained of. One who diminishes the +value of property by intentional damage knows it belongs to +somebody. If he thinks it belongs to himself, he expects whatever +harm he may do to come out of his own pocket. It would be odd if +he were to get rid of the burden by discovering that it belonged +to his neighbor. It is a very different thing to say that he who +intentionally does harm must bear the loss, from saying that one +from whose acts harm follows accidentally, as [98] a consequence +which could not have been foreseen, must bear it. + +Next, suppose the act complained of is an exercise of dominion +over the plaintiff's property, such as a merely technical +trespass or a conversion. If the defendant thought that the +property belonged to himself, there seems to be no abstract +injustice in requiring him to know the limits of his own titles, +or, if he thought that it belonged to another, in holding him +bound to get proof of title before acting. Consider, too, what +the defendant's liability amounts to, if the act, whether an +entry upon land or a conversion of chattels, has been unattended +by damage to the property, and the thing has come back to the +hands of the true owner. The sum recovered is merely nominal, and +the payment is nothing more than a formal acknowledgment of the +owner's title; which, considering the effect of prescription and +statutes of limitation upon repeated acts of dominion, is no more +than right. /1/ All semblance of injustice disappears when the +defendant is allowed to avoid the costs of an action by tender or +otherwise. + +But suppose the property has not come back to the hands of the +true owner. If the thing remains in the hands of the defendant, +it is clearly right that he should surrender it. And if instead +of the thing itself he holds the proceeds of a sale, it is as +reasonable to make him pay over its value in trover or assumpsit +as it would have been to compel a surrender of the thing. But the +question whether the defendant has subsequently paid over the +proceeds of the sale of a chattel to a third person, cannot +affect the rights of the true owner of the [99] chattel. In the +supposed case of an auctioneer, for instance, if he had paid the +true owner, it would have been an answer to his bailor's claim. +If he has paid his bailor instead, he has paid one whom he was +not bound to pay, and no general principle requires that this +should be held to divest the plaintiff's right. + +Another consideration affecting the argument that the law as to +trespasses upon property establishes a general principle, is that +the defendant's knowledge or ignorance of the plaintiff's title +is likely to lie wholly in his own breast, and therefore hardly +admits of satisfactory proof. Indeed, in many cases it cannot +have been open to evidence at all at the time when the law was +settled, before parties were permitted to testify. Accordingly, +in Basely v. Clarkson, /1/ where the defence set up to an action +of trespass quare clausum was that the defendant in mowing his +own land involuntarily and by mistake mowed down some of the +plaintiff's grass, the plaintiff had judgment on demurrer. "For +it appears the fact was voluntary, and his intention and +knowledge are not traversable; they can't be known." + +This language suggests that it would be sufficient to explain the +law of trespass upon property historically, without attempting to +justify it. For it seems to be admitted that if the defendant's +mistake could be proved it might be material. /2/ It will be +noticed, further, that any general argument from the law of +trespass upon laud to that governing trespass against the person +is shown to be misleading by the law as to cattle. The owner is +bound at his peril [100] to keep them off his neighbor's +premises, but he is not bound at his peril in all cases to keep +them from his neighbor's person. + +The objections to such a decision as supposed in the case of an +auctioneer do not rest on the general theory of liability, but +spring altogether from the special exigencies of commerce. It +does not become unjust to hold a person liable for unauthorized +intermeddling with another's property, until there arises the +practical necessity for rapid dealing. But where this practical +necessity exists, it is not surprising to find, and we do find, a +different tendency in the law. The absolute protection of +property, however natural to a primitive community more occupied +in production than in exchange, is hardly consistent with the +requirements of modern business. Even when the rules which we +have been considering were established, the traffic of the public +markets was governed by more liberal principles. On the continent +of Europe it was long ago decided that the policy of protecting +titles must yield to the policy of protecting trade. Casaregis +held that the general principle nemo plus juris in alium +transferre potest quam ipse habet must give way in mercantile +transactions to possession vaut titre. /1/ In later times, as +markets overt have lost their importance, the Factors' Acts and +their successive amendments have tended more and more in the +direction of adopting the Continental doctrine. + +I must preface the argument from precedent with a reference to +what has been said already in the first Lecture about early forms +of liability, and especially about [101] the appeals. It was +there shown that the appeals de pace et plagis and of mayhem +became the action of trespass, and that those appeals and the +early actions of trespass were always, so far as appears, for +intentional wrongs. /1/ + +The contra pacem in the writ of trespass was no doubt inserted to +lay a foundation for the king's writ; but there seems to be no +reason to attribute a similar purpose to vi et armis, or cum vi +sua, as it was often put. Glanvill says that wounds are within +the sheriff's jurisdiction, unless the appellor adds a charge of +breach of the king's peace. /2/ Yet the wounds are given vi et +armis as much in the one case as in the other. Bracton says that +the lesser wrongs described by him belong to the king's +jurisdiction, "because they are sometimes against the peace of +our lord the king," /3/ while, as has been observed, they were +supposed to be always committed intentionally. It might even +perhaps be inferred that the allegation contra pacem was +originally material, and it will be remembered that trespasses +formerly involved the liability to pay a fine to the king. /4/ + +If it be true that trespass was originally confined to +intentional wrongs, it is hardly necessary to consider the +argument drawn from the scope of the general issue. In form it +was a mitigation of the strict denial de verbo in verbum of the +ancient procedure, to which the inquest given by the king's writ +was unknown. /5/ The strict form seems to have lasted in England +some time after the trial of the issue by recognition was +introduced. /6/ When [102] a recognition was granted, the inquest +was, of course, only competent to speak to the facts, as has been +said above. /1/ When the general issue was introduced, trespass +was still confined to intentional wrongs. + +We may now take up the authorities. It will be remembered that +the earlier precedents are of a date when the assize and jurata +had not given place to the modern jury. These bodies spoke from +their own knowledge to an issue defined by the writ, or to +certain familiar questions of fact arising in the trial of a +cause, but did not hear the whole case upon evidence adduced. +Their function was more limited than that which has been gained +by the jury, and it naturally happened that, when they had +declared what the defendant had done, the judges laid down the +standard by which those acts were to be measured without their +assistance. Hence the question in the Year Books is not a loose +or general inquiry of the jury whether they think the alleged +trespasser was negligent on such facts as they may find, but a +well-defined issue of law, to be determined by the court, whether +certain acts set forth upon the record are a ground of liability. +It is possible that the judges may have dealt pretty strictly +with defendants, and it is quite easy to pass from the premise +that defendants have been held trespassers for a variety of acts, +without mention of neglect, to the conclusion that any act by +which another was damaged will make the actor chargeable. But a +more exact scrutiny of the early books will show that liability +in general, then as later, was [103] founded on the opinion of +the tribunal that the defendant ought to have acted otherwise, +or, in other words, that he was to blame. + +Returning first to the case of the thorns in the Year Book, /1/ +it will be seen that the falling of the thorns into the +plaintiff's close, although a result not wished by the defendant, +was in no other sense against his will. When he cut the thorns, +he did an act which obviously and necessarily would have that +consequence, and he must be taken to have foreseen and not to +have prevented it. Choke, C. J. says, "As to what was said about +their falling in, ipso invito, that is no plea, but he ought to +show that he could not do it in any other way, or that he did all +in his power to keep them out"; and both the judges put the +unlawfulness of the entry upon the plaintiff's land as a +consequence of the unlawfulness of dropping the thorns there. +Choke admits that, if the thorns or a tree had been blown over +upon the plaintiff's land, the defendant might have entered to +get them. Chief Justice Crew says of this case, in Millen v. +Fawdry, /2/ that the opinion was that "trespass lies, because he +did not plead that he did his best endeavor to hinder their +falling there; yet this was a hard case." The statements of law +by counsel in argument may be left on one side, although Brian is +quoted and mistaken for one of the judges by Sir William +Blackstone, in Scott v. Shepherd. + +The principal authorities are the shooting cases, and, as +shooting is an extra-hazardous act, it would not be surprising +if it should be held that men do it at their peril in public +places. The liability has been put on the general ground of +fault, however, wherever the line of necessary [104] precaution +may be drawn. In Weaver v. Ward, /1/ the defendant set up that +the plaintiff and he were skirmishing in a trainband, and that +when discharging his piece he wounded the plaintiff by accident +and misfortune, and against his own will. On demurrer, the court +says that "no man shall be excused of a trespass,... except it +may be judged utterly without his fault. As if a man by force +take my hand and strike you, or if here the defendant had said, +that the plaintiff ran cross his piece when it was discharging, +or had set forth the case with the circumstances so as it had +appeared to the court that it had been inevitable, and that the +defendant had committed no negligence to give occasion to the +hurt." The later cases simply follow Weaver v. Ward. + +The quotations which were made above in favor of the strict +doctrine from Sir T. Raymond, in Bessey v. Olliot, and from Sir +William Blackstone, in Scott v. Shepherd, are both taken from +dissenting opinions. In the latter case it is pretty clear that +the majority of the court considered that to repel personal +danger by instantaneously tossing away a squib thrown by another +upon one's stall was not a trespass, although a new motion was +thereby imparted to the squib, and the plaintiff's eye was put +out in consequence. The last case cited above, in stating the +arguments for absolute responsibility, was Leame v. Bray. /2/ The +question under discussion was whether the action (for running +down the plaintiff) should not have been case rather than +trespass, the defendant founding his objection to trespass on the +ground that the injury happened through his neglect, but was not +done wilfully. There was therefore no question of absolute +responsibility for one's acts [105] before the court, as +negligence was admitted; and the language used is all directed +simply to the proposition that the damage need not have been done +intentionally. + +In Wakeman v. Robinson, /1/another runaway case, there was +evidence that the defendant pulled the wrong rein, and that he +ought to have kept a straight course. The jury were instructed +that, if the injury was occasioned by an immediate act of the +defendant, it was immaterial whether the act was wilful or +accidental. On motion for a new trial, Dallas, C. J. said, "If +the accident happened entirely without default on the part of the +defendant, or blame imputable to him, the action does not lie +....The accident was clearly occasioned by the default of the +defendant. The weight of evidence was all that way. I am now +called upon to grant a new trial, contrary to the justice of the +case, upon the ground, that the jury were not called on to +consider whether the accident was unavoidable, or occasioned by +the fault of the defendant. There can be no doubt that the +learned judge who presided would have taken the opinion of the +jury on that ground, if he had been requested so to do." This +language may have been inapposite under the defendant's plea (the +general issue), but the pleadings were not adverted to, and the +doctrine is believed to be sound. + +In America there have been several decisions to the point. In +Brown v. Kendall, /2/ Chief Justice Shaw settled the question for +Massachusetts. That was trespass for assault and battery, and it +appeared that the defendant, while trying to separate two +fighting dogs, had raised his stick over his shoulder in the act +of striking, and had accidentally hit the plaintiff in the eye, +inflicting upon him a [106] severe injury. The case was stronger +for the plaintiff than if the defendant had been acting in +self-defence; but the court held that, although the defendant was +bound by no duty to separate the dogs, yet, if he was doing a +lawful act, he was not liable unless he was wanting in the care +which men of ordinary prudence would use under the circumstances, +and that the burden was on the plaintiff to prove the want of +such care. + +In such a matter no authority is more deserving of respect than +that of Chief Justice Shaw, for the strength of that great judge +lay in an accurate appreciation of the requirements of the +community whose officer he was. Some, indeed many, English judges +could be named who have surpassed him in accurate technical +knowledge, but few have lived who were his equals in their +understanding of the grounds of public policy to which all laws +must ultimately be referred. It was this which made him, in the +language of the late Judge Curtis, the greatest magistrate which +this country has produced. + +Brown v. Kendall has been followed in Connecticut, /1/ in a case +where a man fired a pistol, in lawful self-defence as he alleged, +and hit a bystander. The court was strongly of opinion that the +defendant was not answerable on the general principles of +trespass, unless there was a failure to use such care as was +practicable under the circumstances. The foundation of liability +in trespass as well as case was said to be negligence. The +Supreme Court of the United States has given the sanction of its +approval to the same doctrine. /2/ The language of Harvey v. +Dunlop /3/ has been [107] quoted, and there is a case in Vermont +which tends in the same direction. /1/ + +Supposing it now to be conceded that the general notion upon +which liability to an action is founded is fault or +blameworthiness in some sense, the question arises, whether it is +so in the sense of personal moral shortcoming, as would +practically result from Austin's teaching. The language of Rede, +J., which has been quoted from the Year Book, gives a sufficient +answer. "In trespass the intent" (we may say more broadly, the +defendant's state of mind) "cannot be construed." Suppose that a +defendant were allowed to testify that, before acting, he +considered carefully what would be the conduct of a prudent man +under the circumstances, and, having formed the best judgment he +could, acted accordingly. If the story was believed, it would be +conclusive against the defendant's negligence judged by a moral +standard which would take his personal characteristics into +account. But supposing any such evidence to have got before the +jury, it is very clear that the court would say, Gentlemen, the +question is not whether the defendant thought his conduct was +that of a prudent man, but whether you think it was. /2/ + +Some middle point must be found between the horns of this +dilemma. + +[108 The standards of the law are standards of general +application. The law takes no account of the infinite varieties +of temperament, intellect, and education which make the internal +character of a given act so different in different men. It does +not attempt to see men as God sees them, for more than one +sufficient reason. In the first place, the impossibility of +nicely measuring a man's powers and limitations is far clearer +than that of ascertaining his knowledge of law, which has been +thought to account for what is called the presumption that every +man knows the law. But a more satisfactory explanation is, that, +when men live in society, a certain average of conduct, a +sacrifice of individual peculiarities going beyond a certain +point, is necessary to the general welfare. If, for instance, a +man is born hasty and awkward, is always having accidents and +hurting himself or his neighbors, no doubt his congenital defects +will be allowed for in the courts of Heaven, but his slips are no +less troublesome to his neighbors than if they sprang from guilty +neglect. His neighbors accordingly require him, at his proper +peril, to come up to their standard, and the courts which they +establish decline to take his personal equation into account. + +The rule that the law does, in general, determine liability by +blameworthiness, is subject to the limitation that minute +differences of character are not allowed for. The law considers, +in other words, what would be blameworthy in the average man, the +man of ordinary intelligence and prudence, and determines +liability by that. If we fall below the level in those gifts, it +is our misfortune; so much as that we must have at our peril, for +the reasons just given. But he who is intelligent and prudent +does not act at his peril, in theory of law. On the contrary, it +is [109] only when he fails to exercise the foresight of which he +is capable, or exercises it with evil intent, that he is +answerable for the consequences. + +There are exceptions to the principle that every man is presumed +to possess ordinary capacity to avoid harm to his neighbors, +which illustrate the rule, and also the moral basis of liability +in general. When a man has a distinct defect of such a nature +that all can recognize it as making certain precautions +impossible, he will not be held answerable for not taking them. A +blind man is not required to see at his peril; and although he +is, no doubt, bound to consider his infirmity in regulating his +actions, yet if he properly finds himself in a certain situation, +the neglect of precautions requiring eyesight would not prevent +his recovering for an injury to himself, and, it may be presumed, +would not make him liable for injuring another. So it is held +that, in cases where he is the plaintiff, an infant of very +tender years is only bound to take the precautions of which an +infant is capable; the same principle may be cautiously applied +where he is defendant. /1/ Insanity is a more difficult matter to +deal with, and no general rule can be laid down about it. There +is no doubt that in many cases a man may be insane, and yet +perfectly capable of taking the precautions, and of being +influenced by the motives, which the circumstances demand. But if +insanity of a pronounced type exists, manifestly incapacitating +the sufferer from complying with the rule which he has broken, +good sense would require it to be admitted as an excuse. + +Taking the qualification last established in connection with the +general proposition previously laid down, it will [110] now be +assumed that, on the one hand, the law presumes or requires a man +to possess ordinary capacity to avoid harming his neighbors, +unless a clear and manifest incapacity be shown; but that, on the +other, it does not in general hold him liable for unintentional +injury, unless, possessing such capacity, he might and ought to +have foreseen the danger, or, in other words, unless a man of +ordinary intelligence and forethought would have been to blame +for acting as he did. The next question is, whether this vague +test is all that the law has to say upon the matter, and the same +question in another form, by whom this test is to be applied. + +Notwithstanding the fact that the grounds of legal liability are +moral to the extent above explained, it must be borne in mind +that law only works within the sphere of the senses. If the +external phenomena, the manifest acts and omissions, are such as +it requires, it is wholly indifferent to the internal phenomena +of conscience. A man may have as bad a heart as he chooses, if +his conduct is within the rules. In other words, the standards of +the law are external standards, and, however much it may take +moral considerations into account, it does so only for the +purpose of drawing a line between such bodily motions and rests +as it permits, and such as it does not. What the law really +forbids, and the only thing it forbids, is the act on the wrong +side of the line, be that act blameworthy or otherwise. + +Again, any legal standard must, in theory, be one which would +apply to all men, not specially excepted, under the same +circumstances. It is not intended that the public force should +fall upon an individual accidentally, or at the whim of any body +of men. The standard, that is, [111] must be fixed. In practice, +no doubt, one man may have to pay and another may escape, +according to the different feelings of different juries. But this +merely shows that the law does not perfectly accomplish its ends. +The theory or intention of the law is not that the feeling of +approbation or blame which a particular twelve may entertain +should be the criterion. They are supposed to leave their +idiosyncrasies on one side, and to represent the feeling of the +community. The ideal average prudent man, whose equivalent the +jury is taken to be in many cases, and whose culpability or +innocence is the supposed test, is a constant, and his conduct +under given circumstances is theoretically always the same. + +Finally, any legal standard must, in theory, be capable of being +known. When a man has to pay damages, he is supposed to have +broken the law, and he is further supposed to have known what the +law was. + +If, now, the ordinary liabilities in tort arise from failure to +comply with fixed and uniform standards of external conduct, +which every man is presumed and required to know, it is obvious +that it ought to be possible, sooner or later, to formulate these +standards at least to some extent, and that to do so must at last +be the business of the court. It is equally clear that the +featureless generality, that the defendant was bound to use such +care as a prudent man would do under the circumstances, ought to +be continually giving place to the specific one, that he was +bound to use this or that precaution under these or those +circumstances. The standard which the defendant was bound to come +up to was a standard of specific acts or omissions, with +reference to the specific circumstances in which he found +himself. If in the whole department of [112] unintentional wrongs +the courts arrived at no further utterance than the question of +negligence, and left every case, without rudder or compass, to +the jury, they would simply confess their inability to state a +very large part of the law which they required the defendant to +know, and would assert, by implication, that nothing could be +learned by experience. But neither courts nor legislatures have +ever stopped at that point. + +From the time of Alfred to the present day, statutes and +decisions have busied themselves with defining the precautions to +be taken in certain familiar cases; that is, with substituting +for the vague test of the care exercised by a prudent man, a +precise one of specific acts or omissions. The fundamental +thought is still the same, that the way prescribed is that in +which prudent men are in the habit of acting, or else is one laid +down for cases where prudent men might otherwise be in doubt. + +It will be observed that the existence of the external tests of +liability which will be mentioned, while it illustrates the +tendency of the law of tort to become more and more concrete by +judicial decision and by statute, does not interfere with the +general doctrine maintained as to the grounds of liability. The +argument of this Lecture, although opposed to the doctrine that a +man acts or exerts force at his peril, is by no means opposed to +the doctrine that he does certain particular acts at his peril. +It is the coarseness, not the nature, of the standard which is +objected to. If, when the question of the defendant's negligence +is left to a jury, negligence does not mean the actual state of +the defendant's mind, but a failure to act as a prudent man of +average intelligence would have done, he is required to conform +to an objective standard at his [113] peril, even in that case. +When a more exact and specific rule has been arrived at, he must +obey that rule at his peril to the same extent. But, further, if +the law is wholly a standard of external conduct, a man must +always comply with that standard at his peril. + +Some examples of the process of specification will be useful. In +LL. Alfred, 36, /1/ providing for the case of a man's staking +himself on a spear carried by another, we read, "Let this +(liability) be if the point be three fingers higher than the +hindmost part of the shaft; if they be both on a level,... be +that without danger." + +The rule of the road and the sailing rules adopted by Congress +from England are modern examples of such statutes. By the former +rule, the question has been narrowed from the vague one, Was the +party negligent? to the precise one, Was he on the right or left +of the road? To avoid a possible misconception, it may be +observed that, of course, this question does not necessarily and +under all circumstances decide that of liability; a plaintiff may +have been on the wrong side of the road, as he may have been +negligent, and yet the conduct of the defendant may have been +unjustifiable, and a ground of liability. /2/ So, no doubt, a +defendant could justify or excuse being on the wrong side, under +some circumstances. The difference between alleging that a +defendant was on the wrong side of the road, and that he was +negligent, is the difference between an allegation of facts +requiring to be excused by a counter allegation of further facts +to prevent their being a ground of liability, and an allegation +which involves a conclusion of law, and denies in advance the +existence of an [114] excuse. Whether the former allegation ought +not to be enough, and whether the establishment of the fact ought +not to shift the burden of proof, are questions which belong to +the theory of pleading and evidence, and could be answered either +way consistently with analogy. I should have no difficulty in +saying that the allegation of facts which are ordinarily a ground +of liability, and which would be so unless excused, ought to be +sufficient. But the forms of the law, especially the forms of +pleading, do not change with every change of its substance, and a +prudent lawyer would use the broader and safer phrase. + +The same course of specification which has been illustrated from +the statute-book ought also to be taking place in the growth of +judicial decisions. That this should happen is in accordance with +the past history of the law. It has been suggested already that +in the days of the assize and jurata the court decided whether +the facts constituted a ground of liability in all ordinary +cases. A question of negligence might, no doubt, have gone to the +jury. Common sense and common knowledge are as often sufficient +to determine whether proper care has been taken of an animal, as +they are to say whether A or B owns it. The cases which first +arose were not of a kind to suggest analysis, and negligence was +used as a proximately simple element for a long time before the +need or possibility of analysis was felt. Still, when an issue of +this sort is found, the dispute is rather what the acts or +omissions of the defendant were than on the standard of conduct. +/1/ The [115] distinction between the functions of court and jury +does not come in question until the parties differ as to the +standard of conduct. Negligence, like ownership, is a complex +conception. Just as the latter imports the existence of certain +facts, and also the consequence (protection against all the +world) which the law attaches to those facts; the former imports +the existence of certain facts (conduct) and also the consequence +(liability) which the law attaches to those facts. In most cases +the question is upon the facts, and it is only occasionally that +one arises on the consequence. + +It will have been noticed how the judges pass on the defendant's +acts (on grounds of fault and public policy) in the case of the +thorns, and that in Weaver v. Ward /1/it is said that the facts +constituting an excuse, and showing that the defendant was free +from negligence, should have been spread upon the record, in +order that the court might judge. A similar requirement was laid +down with regard to the defence of probable cause in an action +for malicious prosecution. /2/ And to this day the question of +probable cause is always passed on by the court. Later evidence +will be found in what follows. + +There is, however, an important consideration, which has not yet +been adverted to. It is undoubtedly possible that those who have +the making of the law should deem it wise to put the mark higher +in some cases than the point established by common practice at +which blameworthiness begins. For instance, in Morris v. Platt, +/2/ the court, while declaring in the strongest terms that, in +general, [116] negligence is the foundation of liability for +accidental trespasses, nevertheless hints that, if a decision of +the point were necessary, it might hold a defendant to a stricter +rule where the damage was caused by a pistol, in view of the +danger to the public of the growing habit of carrying deadly +weapons. Again, it might well seem that to enter a man's house +for the purpose of carrying a present, or inquiring after his +health when he was ill, was a harmless and rather praiseworthy +act, although crossing the owner's boundary was intentional. It +is not supposed that an action would lie at the present day for +such a cause, unless the defendant had been forbidden the house. +Yet in the time of Henry VIII. it was said to be actionable if +without license, "for then under that color my enemy might be in +my house and kill me." /1/ There is a clear case where public +policy establishes a standard of overt acts without regard to +fault in any sense. In like manner, policy established exceptions +to the general prohibition against entering another's premises, +as in the instance put by Chief Justice Choke in the Year Book, +of a tree being blown over upon them, or when the highway became +impassable, or for the purpose of keeping the peace. /2/ + +Another example may perhaps be found in the shape which has been +given in modern times to the liability for animals, and in the +derivative principle of Rylands v. Fletcher, /3/ that when a +person brings on his lands, and collects and keeps there, +anything likely to do mischief if it escapes, he must keep it in +at his peril; and, if he does not do so, is prima facie +answerable for all the [117] damage which is the natural +consequence of its escape. Cases of this sort do not stand on the +notion that it is wrong to keep cattle, or to have a reservoir of +water, as might have been thought with more plausibility when +fierce and useless animals only were in question. /1/ It may even +be very much for the public good that the dangerous accumulation +should be made (a consideration which might influence the +decision in some instances, and differently in different +jurisdictions); but as there is a limit to the nicety of inquiry +which is possible in a trial, it may be considered that the +safest way to secure care is to throw the risk upon the person +who decides what precautions shall be taken. The liability for +trespasses of cattle seems to lie on the boundary line between +rules based on policy irrespective of fault, and requirements +intended to formulate the conduct of a prudent man. + +It has been shown in the first Lecture how this liability for +cattle arose in the early law, and how far the influence of early +notions might be traced in the law of today, Subject to what is +there said, it is evident that the early discussions turn on the +general consideration whether the owner is or is not to blame. +/2/ But they do not stop there: they go on to take practical +distinctions, based on common experience. Thus, when the +defendant chased sheep out of his land with a dog, and as soon as +the sheep were out called in his dog, but the dog pursued them +into adjoining land, the chasing of the sheep beyond the +defendant's line was held no trespass, because "the nature of a +dog is such that he cannot be ruled suddenly." /3/ + +[118] It was lawful in ploughing to turn the horses on adjoining +land, and if while so turning the beasts took a mouthful of +grass, or subverted the soil with the plough, against the will of +the driver, he had a good justification, because the law will +recognize that a man cannot at every instant govern his cattle as +he will. /1/ So it was said that, if a man be driving cattle +through a town, and one of them goes into another man's house, +and he follows him, trespass does not lie for this. /2/ So it was +said by Doderidge, J., in the same case, that if deer come into +my land out of the forest, and I chase them with dogs, it is +excuse enough for me to wind my horn to recall the dogs, because +by this the warden of the forest has notice that a deer is being +chased. /3/ + +The very case of Mason v. Keeling, /4/ which is referred to in +the first Lecture for its echo of primitive notions, shows that +the working rules of the law had long been founded on good sense. +With regard to animals not then treated as property, which in the +main were the wilder animals, the law was settled that, "if they +are of a tame nature, there must be notice of the ill quality; +and the law takes notice, that a dog is not of a fierce nature, +but rather the contrary." /5/ If the animals "are such as are +naturally [119] mischievous in their kind, he shall answer for +hurt done by them, without any notice." /1/ The latter principle +has been applied to the case of a bear, /2/ and amply accounts +for the liability of the owner of such animals as horses and oxen +in respect of trespasses upon land, although, as has been seen, +it was at one time thought to stand upon his ownership. It is +said to be the universal nature of cattle to stray, and, when +straying in cultivated land, to do damage by trampling down and +eating the crops, whereas a dog does no harm. It is also said to +be usual and easy to restrain them. /3/ If, as has been +suggested, the historical origin of the rule was different, it +does not matter. + +Following the same line of thought, the owner of cattle is not +held absolutely answerable for all damage which they may do the +person. According to Lord Holt in the alcove opinion, these +animals, "which are not so familiar to mankind" as dogs, "the +owner ought to confine, and take all reasonable caution that they +do no mischief.... But... if the owner puts a horse or an ox to +grass in his field, which is adjoining to the highway, and the +horse or the ox breaks the hedge and runs into the highway, and +kicks or gores some passenger, an action will not lie against the +owner; otherwise, if he had notice that they had done such a +thing before." + +[120] Perhaps the most striking authority for the position that +the judge's duties are not at an end when the question of +negligence is reached, is shown by the discussions concerning the +law of bailment. Consider the judgment in Coggs v. Bernard, /1/ +the treatises of Sir William Jones and Story, and the chapter of +Kent upon the subject. They are so many attempts to state the +duty of the bailee specifically, according to the nature of the +bailment and of the object bailed. Those attempts, to be sure, +were not successful, partly because they were attempts to engraft +upon the native stock a branch of the Roman law which was too +large to survive the process, but more especially because the +distinctions attempted were purely qualitative, and were +therefore useless when dealing with a jury. /2/ To instruct a +jury that they must find the defendant guilty of gross negligence +before he can be charged, is open to the reproach that for such a +body the word "gross" is only a vituperative epithet. But it +would not be so with a judge sitting in admiralty without a jury. +The Roman law and the Supreme Court of the United States agree +that the word means something. /3/ Successful or not, it is +enough for the present argument that the attempt has been made. + +The principles of substantive law which have been established by +the courts are believed to have been somewhat obscured by having +presented themselves oftenest in the form of rulings upon the +sufficiency of evidence. When a judge rules that there is no +evidence of negligence, he does something more than is embraced +in an ordinary ruling that there is no evidence of a fact. He +rules that [121] acts or omissions proved or in question do not +constitute a ground of legal liability, and in this way the law +is gradually enriching itself from daily life, as it should. +Thus, in Crafton v. Metropolitan Railway Co., /1/ the plaintiff +slipped on the defendant's stairs and was severely hurt. The +cause of his slipping was that the brass nosing of the stairs had +been worn smooth by travel over it, and a builder testified that +in his opinion the staircase was unsafe by reason of this +circumstance and the absence of a hand-rail. There was nothing to +contradict this except that great numbers of persons had passed +over the stairs and that no accident had happened there, and the +plaintiff had a verdict. The court set the verdict aside, and +ordered a nonsuit. The ruling was in form that there was no +evidence of negligence to go to the jury; but this was obviously +equivalent to saying, and did in fact mean, that the railroad +company had done all that it was bound to do in maintaining such +a staircase as was proved by the plaintiff. A hundred other +equally concrete instances will be found in the text-books. + +On the other hand, if the court should rule that certain acts or +omissions coupled with damage were conclusive evidence of +negligence unless explained, it would, in substance and in truth, +rule that such acts or omissions were a ground of liability, /2/ +or prevented a recovery, as the case might be. Thus it is said to +be actionable negligence to let a house for a dwelling knowing it +to be so infected with small-pox as to be dangerous to health, +and concealing the knowledge. /3/ To explain the acts or +omissions in such a [122] case would be to prove different +conduct from that ruled upon, or to show that they were not, +juridically speaking, the cause of the damage complained of. The +ruling assumes, for the purposes of the ruling, that the facts in +evidence are all the facts. + +The cases which have raised difficulties needing explanation are +those in which the court has ruled that there was prima facie +evidence of negligence, or some evidence of negligence to go to +the jury. + +Many have noticed the confusion of thought implied in speaking of +such cases as presenting mixed questions of law and fact. No +doubt, as has been said above, the averment that the defendant +has been guilty of negligence is a complex one: first, that he +has done or omitted certain things; second, that his alleged +conduct does not come up to the legal standard. And so long as +the controversy is simply on the first half, the whole complex +averment is plain matter for the jury without special +instructions, just as a question of ownership would be where the +only dispute was as to the fact upon which the legal conclusion +was founded. /1/ But when a controversy arises on the second +half, the question whether the court or the jury ought to judge +of the defendant's conduct is wholly unaffected by the accident, +whether there is or is not also a dispute as to what that conduct +was. If there is such a dispute, it is entirely possible to give +a series of hypothetical instructions adapted to every state of +facts which it is open to the jury to find. If there is no such +dispute, the court may still take their opinion as to the +standard. The problem is [123] to explain the relative functions +of court and jury with regard to the latter. + +When a case arises in which the standard of conduct, pure and +simple, is submitted to the jury, the explanation is plain. It is +that the court, not entertaining any clear views of public policy +applicable to the matter, derives the rule to be applied from +daily experience, as it has been agreed that the great body of +the law of tort has been derived. But the court further feels +that it is not itself possessed of sufficient practical +experience to lay down the rule intelligently. It conceives that +twelve men taken from the practical part of the community can aid +its judgment. /1/ Therefore it aids its conscience by taking the +opinion of the jury. + +But supposing a state of facts often repeated in practice, is it +to be imagined that the court is to go on leaving the standard to +the jury forever? Is it not manifest, on the contrary, that if +the jury is, on the whole, as fair a tribunal as it is +represented to be, the lesson which can be got from that source +will be learned? Either the court will find that the fair +teaching of experience is that the conduct complained of usually +is or is not blameworthy, and therefore, unless explained, is or +is not a ground of liability; or it will find the jury +oscillating to and fro, and will see the necessity of making up +its mind for itself. There is no reason why any other such +question should not be settled, as well as that of liability for +stairs with smooth strips of brass upon their edges. The +exceptions would mainly be found where the standard was rapidly +changing, as, for instance, in some questions of medical +treatment. /2/ + +[124] If this be the proper conclusion in plain cases, further +consequences ensue. Facts do not often exactly repeat themselves +in practice; but cases with comparatively small variations from +each other do. A judge who has long sat at nisi prius ought +gradually to acquire a fund of experience which enables him to +represent the common sense of the community in ordinary instances +far better than an average jury. He should be able to lead and to +instruct them in detail, even where he thinks it desirable, on +the whole, to take their opinion. Furthermore, the sphere in +which he is able to rule without taking their opinion at all +should be continually growing. + +It has often been said, that negligence is pure matter of fact, +or that, after the court has declared the evidence to be such +that negligence may be inferred from it, the jury are always to +decide whether the inference shall be drawn. /1/ But it is +believed that the courts, when they lay down this broad +proposition, are thinking of cases where the conduct to be passed +upon is not proved directly, and the main or only question is +what that conduct was, not what standard shall be applied to it +after it is established. + +Most cases which go to the jury on a ruling that there is +evidence from which they may find negligence, do not go to them +principally on account of a doubt as to the standard, but of a +doubt as to the conduct. Take the case where the fact in proof is +an event such as the dropping of a brick from a railway bridge +over a highway upon the plaintiff, the fact must be inferred that +the dropping was [125] due, not to a sudden operation of weather, +but to a gradual falling out of repair which it was physically +possible for the defendant to have prevented, before there can be +any question as to the standard of conduct. /1/ + +So, in the case of a barrel falling from a warehouse window, it +must be found that the defendant or his servants were in charge +of it, before any question of standard can arise. /2/ It will be +seen that in each of these well-known cases the court assumed a +rule which would make the defendant liable if his conduct was +such as the evidence tended to prove. When there is no question +as to the conduct established by the evidence, as in the case of +a collision between two trains belonging to the same company, the +jury have, sometimes at least, been told in effect that, if they +believed the evidence, the defendant was liable. /3/ + +The principal argument that is urged in favor of the view that a +more extended function belongs to the jury as matter of right, is +the necessity of continually conforming our standards to +experience. No doubt the general foundation of legal liability in +blameworthiness, as determined by the existing average standards +of the community, should always be kept in mind, for the purpose +of keeping such concrete rules as from time to time may be laid +down conformable to daily life. No doubt this conformity is the +practical justification for requiring a man to know the civil +law, as the fact that crimes are also generally sins is one of +the practical justifications for requiring a man to know the +criminal law. But these considerations only lead to [126] the +conclusion that precedents should be overruled when they become +inconsistent with present conditions; and this has generally +happened, except with regard to the construction of deeds and +wills. On the other hand, it is very desirable to know as nearly +as we can the standard by which we shall be judged at a given +moment, and, moreover, the standards for a very large part of +human conduct do not vary from century to century. + +The considerations urged in this Lecture are of peculiar +importance in this country, or at least in States where the law +is as it stands in Massachusetts. In England, the judges at nisi +prius express their opinions freely on the value and weight of +the evidence, and the judges in banc, by consent of parties, +constantly draw inferences of fact. Hence nice distinctions as to +the province of court and jury are not of the first necessity. +But when judges are forbidden by statute to charge the jury with +respect to matters of fact, and when the court in banc will never +hear a case calling for inferences of fact, it becomes of vital +importance to understand that, when standards of conduct are left +to the jury, it is a temporary surrender of a judicial function +which may be resumed at any moment in any case when the court +feels competent to do so. Were this not so, the almost universal +acceptance of the first proposition in this Lecture, that the +general foundation of liability for unintentional wrongs is +conduct different from that of a prudent man under the +circumstances, would leave all our rights and duties throughout a +great part of the law to the necessarily more or less accidental +feelings of a jury. + +It is perfectly consistent with the views maintained in this +Lecture that the courts have been very slow to withdraw questions +of negligence from the jury, without distinguishing [127] nicely +whether the doubt concerned the facts or the standard to be +applied. Legal, like natural divisions, however clear in their +general outline, will be found on exact scrutiny to end in a +penumbra or debatable land. This is the region of the jury, and +only cases falling on this doubtful border are likely to be +carried far in court. Still, the tendency of the law must always +be to narrow the field of uncertainty. That is what analogy, as +well as the decisions on this very subject, would lead us to +expect. + +The growth of the law is very apt to take place in this way. Two +widely different cases suggest a general distinction, which is a +clear one when stated broadly. But as new eases cluster around +the opposite poles, and begin to approach each other, the +distinction becomes more difficult to trace; the determinations +are made one way or the other on a very slight preponderance of +feeling, rather than of articulate reason; and at last a +mathematical line is arrived at by the contact of contrary +decisions, which is so far arbitrary that it might equally well +have been drawn a little farther to the one side or to the other, +but which must have been drawn somewhere in the neighborhood of +where it falls. /1/ + +In this way exact distinctions have been worked out upon +questions in which the elements to be considered are few. For +instance, what is a reasonable time for presenting negotiable +paper, or what is a difference in kind and what a difference only +in quality, or the rule against perpetuities. + +An example of the approach of decisions towards each other from +the opposite poles, and of the function of the jury midway, is to +be found in the Massachusetts adjudications, [128] that, if a +child of two years and four months is unnecessarily sent +unattended across and down a street in a large city, he cannot +recover for a negligent injury; /1/ that to allow a boy of eight +to be abroad alone is not necessarily negligent; /2/ and that the +effect of permitting a boy of ten to be abroad after dark is for +the jury; /3/ a coupled with the statement, which may be ventured +on without authority, that such a permission to a young man of +twenty possessed of common intelligence has no effect whatever. + +Take again the law of ancient lights in England. An obstruction +to be actionable must be substantial. Under ordinary +circumstances the erection of a structure a hundred yards off, +and one foot above the ground, would not be actionable. One +within a foot of the window, and covering it, would be, without +any finding of a jury beyond these facts. In doubtful cases +midway, the question whether the interference was substantial has +been left to the jury. /4/ But as the elements are few and +permanent, an inclination has been shown to lay down a definite +rule, that, in ordinary cases, the building complained of must +not be higher than the distance of its base from the dominant +windows. And although this attempt to work out an exact line +requires much caution, it is entirely philosophical in spirit. +/5/ + +The same principle applies to negligence. If the whole evidence +in the case was that a party, in full command of [129] senses and +intellect, stood on a railway track, looking at an approaching +engine until it ran him down, no judge would leave it to the jury +to say whether the conduct was prudent. If the whole evidence was +that he attempted to cross a level track, which was visible for +half a mile each way, and on which no engine was in sight, no +court would allow a jury to find negligence. Between these +extremes are cases which would go to the jury. But it is obvious +that the limit of safety in such cases, supposing no further +elements present, could be determined to a foot by mathematical +calculation. + +The trouble with many cases of negligence is, that they are of a +kind not frequently recurring, so as to enable any given judge to +profit by long experience with juries to lay down rules, and that +the elements are so complex that courts are glad to leave the +whole matter in a lump for the jury's determination. + +I reserve the relation between negligent and other torts for the +next Lecture. + + + + +LECTURE IV. -- FRAUD, MALICE, AND INTENT.--THE THEORY OF TORTS. + +[130] The next subjects to be considered are fraud, malice, and +intent. In the discussion of unintentional wrongs, the greatest +difficulty to be overcome was found to be the doctrine that a man +acts always at his peril. In what follows, on the other hand, the +difficulty will be to prove that actual wickedness of the kind +described by the several words just mentioned is not an element +in the civil wrongs to which those words are applied. + +It has been shown, in dealing with the criminal law, that, when +we call an act malicious in common speech, we mean that harm to +another person was intended to come of it, and that such harm was +desired for its own sake as an end in itself. For the purposes of +the criminal law, however, intent alone was found to be +important, and to have the same consequences as intent with +malevolence superadded. Pursuing the analysis, intent was found +to be made up of foresight of the harm as a consequence, coupled +with a desire to bring it about, the latter being conceived as +the motive for the act in question. Of these, again, foresight +only seemed material. As a last step, foresight was reduced to +its lowest term, and it was concluded that, subject to exceptions +which were explained, the general basis of criminal liability was +knowledge, at the time of action, [131] of facts from which +common experience showed that certain harmful results were likely +to follow. + +It remains to be seen whether a similar reduction is possible on +the civil side of the law, and whether thus fraudulent, +malicious, intentional, and negligent wrongs can be brought into +a philosophically continuous series. + +A word of preliminary explanation will be useful. It has been +shown in the Lecture just referred to that an act, although +always importing intent, is per se indifferent to the law. It is +a willed, and therefore an intended coordination of muscular +contractions. But the intent necessarily imported by the act ends +there. And all muscular motions or co-ordinations of them are +harmless apart from concomitant circumstances, the presence of +which is not necessarily implied by the act itself. To strike out +with the fist is the same act, whether done in a desert or in a +crowd. + +The same considerations which have been urged to show that an act +alone, by itself, does not and ought not to impose either civil +or criminal liability, apply, at least frequently, to a series of +acts, or to conduct, although the series shows a further +co-ordination and a further intent. For instance, it is the same +series of acts to utter a sentence falsely stating that a certain +barrel contains No. 1 Mackerel, whether the sentence is uttered +in the secrecy of the closet, or to another man in the course of +a bargain. There is, to be sure, in either case, the further +intent, beyond the co-ordination of muscles for a single sound, +to allege that a certain barrel has certain contents,--an intent +necessarily shown by the ordering of the words. But both the +series of acts and the intent are per se indifferent. They are +innocent when spoken in solitude, and [132] are only a ground of +liability when certain concomitant circumstances are shown. + +The intent which is meant when spoken of as an element of legal +liability is an intent directed toward the harm complained of, or +at least toward harm. It is not necessary in every case to carry +the analysis back to the simple muscular contractions out of +which a course of conduct is made up. On the same principle that +requires something more than an act followed by damage to make a +man liable, we constantly find ourselves at liberty to assume a +co-ordinated series of acts as a proximately simple element, per +se indifferent, in considering what further circumstances or +facts must be present before the conduct in question is at the +actor's peril. It will save confusion and the need of repetition +if this is borne in mind in the following discussion. + +The chief forms of liability in which fraud, malice, and intent +are said to be necessary elements, are deceit, slander and libel, +malicious prosecution, and conspiracy, to which, perhaps, may be +added trover. + +Deceit is a notion drawn from the moral world, and in its popular +sense distinctly imports wickedness. The doctrine of the common +law with regard to it is generally stated in terms which are only +consistent with actual guilt, and all actual guilty intent. It is +said that a man is liable to an action for deceit if he makes a +false representation to another, knowing it to be false, but +intending that the other should believe and act upon it, if the +person addressed believes it, and is thereby persuaded to act to +his own harm. This is no doubt the typical case, and it is a case +of intentional moral wrong. Now, what is the party's conduct +here. It consists in uttering certain words, [133] so ordered +that the utterance of them imports a knowledge of the meaning +which they would convey if heard. But that conduct with only that +knowledge is neither moral nor immoral. Go one step further, and +add the knowledge of another's presence within hearing, still the +act has no determinate character. The elements which make it +immoral are the knowledge that the statement is false, and the +intent that it shall be acted on. + +The principal question then is, whether this intent can be +reduced to the same terms as it has been in other cases. There is +no difficulty in the answer. It is perfectly clear that the +intent that a false representation should be acted on would be +conclusively established by proof that the defendant knew that +the other party intended to act upon it. If the defendant foresaw +the consequence of his acts, he is chargeable, whether his motive +was a desire to induce the other party to act, or simply an +unwillingness for private reasons to state the truth. If the +defendant knew a present fact (the other party's intent), which, +according to common experience, made it likely that his act would +have the harmful consequence, he is chargeable, whether he in +fact foresaw the consequence or not. + +In this matter the general conclusion follows from a single +instance. For the moment it is admitted that in one case +knowledge of a present fact, such as the other party's intent to +act on the false statement, dispenses with proof of an intent to +induce him to act upon it, it is admitted that the lesser element +is all that is necessary in the larger compound. For intent +embraces knowledge sufficing for foresight, as has been shown. +Hence, when you prove intent you prove knowledge, and intent may +often [134] be the easier to prove of the two. But when you prove +knowledge you do not prove intent. + +It may be said, however, that intent is implied or presumed in +such a case as has been supposed. But this is only helping out a +false theory by a fiction. It is very much like saying that a +consideration is presumed for an instrument under seal; which is +merely a way of reconciling the formal theory that all contracts +must have a consideration with the manifest fact that sealed +instruments do not require one. Whenever it is said that a +certain thing is essential to liability, but that it is +conclusively presumed from something else, there is always ground +for suspicion that the essential clement is to be found in that +something else, and not in what is said to be presumed from it. + +With regard to the intent necessary to deceit, we need not stop +with the single instance which has been given. The law goes no +farther than to require proof either of the intent, or that the +other party was justified in inferring such intention. So that +the whole meaning of the requirement is, that the natural and +manifest tendency of the representation, under the known +circumstances, must have been to induce the opinion that it was +made with a view to action, and so to induce action on the faith +of it. The standard of what is called intent is thus really an +external standard of conduct under the known circumstances, and +the analysis of the criminal law holds good here. + +Nor is this all. The law pursuing its course of specification, as +explained in the last Lecture, decides what is the tendency of +representations in certain cases,--as, for instance, that a horse +is sound at the time of making a [135] sale; or, in general, of +any statement of fact which it is known the other party intends +to rely on. Beyond these scientific rules lies the vague realm of +the jury. + +The other moral element in deceit is knowledge that the statement +was false. With this I am not strictly concerned, because all +that is necessary is accomplished when the elements of risk are +reduced to action and knowledge. But it will aid in the general +object of showing that the tendency of the law everywhere is to +transcend moral and reach external standards, if this knowledge +of falsehood can be transmuted into a formula not necessarily +importing guilt, although, of course, generally accompanied by it +in fact. The moment we look critically at it, we find the moral +side shade away. + +The question is, what known circumstances are enough throw the +risk of a statement upon him who makes it, if it induces another +man to act, and it turns out untrue. Now, it is evident that a +man may take the risk of his statement by express agreement, or +by an implied one which the law reads into his bargain. He may in +legal language warrant the truth of it, and if it is not true, +the law treats it as a fraud, just as much when he makes it fully +believing it, as when he knows that it is untrue, and means to +deceive. If, in selling a horse, the seller warranted him to be +only five years old, and in fact he was thirteen, the seller +could be sued for a deceit at common law, although he thought the +horse was only five. /1/ The common-law liability for the truth +of statements is, therefore, more extensive than the sphere of +actual moral fraud. But, again, it is enough in general if a +representation [136] is made recklessly, without knowing whether +it is true or false. Now what does "recklessly" mean. It does not +mean actual personal indifference to the truth of the statement. +It means only that the data for the statement were so far +insufficient that a prudent man could not have made it without +leading to the inference that he was indifferent. That is to say, +repeating an analysis which has been gone through with before, it +means that the law, applying a general objective standard, +determines that, if a man makes his statement on those data, he +is liable, whatever was the state of his mind, and although he +individually may have been perfectly free from wickedness in +making it. + +Hence similar reasoning to that which has been applied already to +intent may be applied to knowledge of falsity. Actual knowledge +may often be easier to prove than that the evidence was +insufficient to warrant the statement, and when proved it +contains the lesser element. But as soon as the lesser element is +shown to be enough, it is shown that the law is ready to apply an +external or objective standard here also. + +Courts of equity have laid down the doctrine in terms which are +so wholly irrespective of the actual moral condition of the +defendant as to go to an opposite extreme. It is said that "when +a representation in a matter of business is made by one man to +another calculated to induce him to adapt his conduct to it, it +is perfectly immaterial whether the representation is made +knowing it to be untrue, or whether it is made believing it to be +true, if, in fact, it was untrue." /1/ + +Perhaps the actual decisions could be reconciled on a [137] +narrower principle, but the rule just stated goes the length of +saying that in business matters a man makes every statement (of a +kind likely to be acted on) at his peril. This seems hardly +justifiable in policy. The moral starting point of liability in +general should never be forgotten, and the law cannot without +disregarding it hold a man answerable for statements based on +facts which would have convinced a wise and prudent man of their +truth. The public advantage and necessity of freedom in imparting +information, which privileges even the slander of a third person, +ought a fortiori, it seems to me, to privilege statements made at +the request of the party who complains of them. + +The common law, at any rate, preserves the reference to morality +by making fraud the ground on which it goes. It does not hold +that a man always speaks at his peril. But starting from the +moral ground, it works out an external standard of what would be +fraudulent in the average prudent member of the community, and +requires every member at his peril to avoid that. As in other +cases, it is gradually accumulating precedents which decide that +certain statements under certain circumstances are at the peril +of the party who makes them. + +The elements of deceit which throw the risk of his conduct upon a +party are these. First, making a statement of facts purporting to +be serious. Second, the known presence of another within hearing. +Third, known facts sufficient to warrant the expectation or +suggest the probability that the other party will act on the +statement. (What facts are sufficient has been specifically +determined by the courts in some instances; in others, no doubt, +the question would go to the jury on the principles heretofore +explained.) Fourth, the [138] falsehood of the statement. This +must be known, or else the known evidence concerning the matter +of the statement must be such as would not warrant belief +according to the ordinary course of human experience. (On this +point also the court may be found to lay down specific rules in +some cases. /1/) + +I next take up the law of slander. It has often been said that +malice is one of the elements of liability, and the doctrine is +commonly stated in this way: that malice must exist, but that it +is presumed by law from the mere speaking of the words; that +again you may rebut this presumption of malice by showing that +the words were spoken under circumstances which made the +communication privileged,--as, for instance, by a lawyer in the +necessary course of his argument, or by a person answering in +good faith to inquiries as to the character of a former servant,-- +and then, it is said, the plaintiff may meet this defence in some +cases by showing that the words were spoken with actual malice. + +All this sounds as if at least actual intent to cause the damage +complained of, if not malevolence, were at the bottom of this +class of wrongs. Yet it is not so. For although the use of the +phrase "malice" points as usual to an original moral standard, +the rule that it is presumed upon proof of speaking certain words +is equivalent to saying that the overt conduct of speaking those +words may be actionable whether the consequence of damage to the +plaintiff was intended or not. And this fails in with the general +theory, because the manifest tendency of slanderous words is to +harm the person of whom they are spoken. Again, the real +substance of the defence is not that the damage [139] was not +intended,--that would be no defence at all; but that, whether +it was intended or not,--that is, even if the defendant foresaw +it and foresaw it with pleasure,--the manifest facts and +circumstances under which he said it were such that the law +considered the damage to the plaintiff of less importance than +the benefit of free speaking. + +It is more difficult to apply the same analysis to the last stage +of the process, but perhaps it is not impossible. It is said that +the plaintiff may meet a case of privilege thus made out on the +part of the defendant, by proving actual malice, that is, actual +intent to cause the damage complained of. But how is this actual +malice made out? It is by showing that the defendant knew the +statement which he made was false, or that his untrue statements +were grossly in excess of what the occasion required. Now is it +not very evident that the law is looking to a wholly different +matter from the defendant's intent? The fact that the defendant +foresaw and foresaw with pleasure the damage to the plaintiff, is +of no more importance in this case than it would be where the +communication was privileged. The question again is wholly a +question of knowledge, or other external standard. And what makes +even knowledge important? It is that the reason for which a man +is allowed in the other instances to make false charges against +his neighbors is wanting. It is for the public interest that +people should be free to give the best information they can under +certain circumstances without fear, but there is no public +benefit in having lies told at any time; and when a charge is +known to be false, or is in excess of what is required by the +occasion, it is not necessary to make that charge in order to +speak freely, and [140] therefore it falls under the ordinary +rule, that certain charges are made at the party's peril in case +they turn out to be false, whether evil consequences were +intended or not. The defendant is liable, not because his intent +was evil, but because he made false charges without excuse. + +It will be seen that the peril of conduct here begins farther +back than with deceit, as the tendency of slander is more +universally harmful. There must be some concomitant +circumstances. There must at least be a human being in existence +whom the statement designates. There must be another human being +within hearing who understands the statement, and the statement +must be false. But it is arguable that the latter of these facts +need not be known, as certainly the falsity of the charge need +not be, and that a man must take the risk of even an idle +statement being heard, unless he made it under known +circumstances of privilege. It would be no great curtailment of +freedom to deny a man immunity in attaching a charge of crime to +the name of his neighbor, even when he supposes himself alone. +But it does not seem clear that the law would go quite so far as +that. + +The next form of liability is comparatively insignificant. I mean +the action for malicious prosecution. A man may recover damages +against another for maliciously and without probable cause +instituting a criminal, or, in some cases, a civil prosecution +against him upon a false charge. The want of probable cause +refers, of course, only to the state of the defendant's +knowledge, not to his intent. It means the absence of probable +cause in the facts known to the defendant when he instituted the +suit. But the standard applied to the defendant's consciousness +is external to it. The question is not whether he thought the +[141] facts to constitute probable cause, but whether the court +thinks they did. + +Then as to malice. The conduct of the defendant consists in +instituting proceedings on a charge which is in fact false, and +which has not prevailed. That is the root of the whole matter. If +the charge was true, or if the plaintiff has been convicted, even +though he may be able now to prove that he was wrongly convicted, +the defendant is safe, however great his malice, and however +little ground he had for his charge. + +Suppose, however, that the charge is false, and does not prevail. +It may readily be admitted that malice did originally mean a +malevolent motive, an actual intent to harm the plaintiff by +making a false charge. The legal remedy here, again, started from +the moral basis, the occasion for it, no doubt, being similar to +that which gave rise to the old law of conspiracy, that a man's +enemies would sometimes seek his destruction by setting the +criminal law in motion against him. As it was punishable to +combine for such a purpose, it was concluded, with some +hesitation, that, when a single individual wickedly attempted the +same thing, he should be liable on similar grounds. /1/ I must +fully admit that there is weighty authority to the effect that +malice in its ordinary sense is to this day a distinct fact to be +proved and to be found by the jury. + +But this view cannot be accepted without hesitation. It is +admitted that, on the one side, the existence of probable cause, +believed in, is a justification notwithstanding malice; /2/ that, +on the other, "it is not enough to show [142] that the case +appeared sufficient to this particular party, but it must be +sufficient to induce a sober, sensible and discreet person to act +upon it, or it must fail as a justification for the proceeding +upon general grounds." /1/ On the one side, malice alone will not +make a man liable for instituting a groundless prosecution; on +the other, his justification will depend, not on his opinion of +the facts, but on that of the court. When his actual moral +condition is disregarded to this extent, it is a little hard to +believe that the existence of an improper motive should be +material. Yet that is what malice must mean in this case, if it +means anything. /2/ For the evil effects of a successful +indictment are of course intended by one who procures all other +to be indicted. I cannot but think that a jury would be told that +knowledge or belief that the charge was false at the time of +making it was conclusive evidence of malice. And if so, on +grounds which need not be repeated, malice is not the important +thing, but the facts known to the defendant. + +Nevertheless, as it is obviously treading on delicate ground to +make it actionable to set the regular processes of the law in +motion, it is, of course, entirely possible to say that the +action shall be limited to those cases where the charge was +preferred from improper motives, at least if the defendant +thought that there was probable cause. Such a limitation would +stand almost alone in the law of civil liability. But the nature +of the wrong is peculiar, and, moreover, it is quite consistent +with the theory of liability here advanced that it should be +confined in any given instance to actual wrong-doing in a moral +sense. + +The only other cause of action in which the moral condition [143] +of the defendant's consciousness might seem to be important is +conspiracy. The old action going by that name was much like +malicious prosecution, and no doubt was originally confined to +cases where several persons had conspired to indict another from +malevolent motives. But in the modern action on the case, where +conspiracy is charged, the allegation as a rule only means that +two or more persons were so far co-operating in their acts that +the act of any one was the act of all. Generally speaking, the +liability depends not on the co-operation or conspiring, but on +the character of the acts done, supposing them all to be done by +one man, or irrespective of the question whether they were done +by one or several. There may be cases, to be sure, in which the +result could not be accomplished, or the offence could not +ordinarily be proved, without a combination of several; as, for +instance, the removal of a teacher by a school board. The +conspiracy would not affect the case except in a practical way, +but the question would be raised whether, notwithstanding the +right of the board to remove, proof that they were actuated by +malevolence would not make a removal actionable. Policy, it might +be said, forbids going behind their judgment, but actual evil +motives coupled with the absence of grounds withdraw this +protection, because policy, although it does not require them to +take the risk of being right, does require that they should judge +honestly on the merits. /1/ + +Other isolated instances like the last might, perhaps, be found +in different parts of the law, in which actual malevolence would +affect a man's liability for his conduct. Again, in trover for +the conversion of another's chattel, where the dominion exercised +over it was of a slight and ambiguous [144] nature, it has been +said that the taking must be "with the intent of exercising an +ownership over the chattel inconsistent with the real owner's +right of possession." /1/ But this seems to be no more than a +faint shadow of the doctrine explained with regard to larceny, +and does not require any further or special discussion. Trover is +commonly understood to go, like larceny, on the plaintiff's being +deprived of his property, although in practice every possessor +has the action, and, generally speaking, the shortest wrongful +withholding of possession is a conversion. + +Be the exceptions more or less numerous, the general purpose of +the law of torts is to secure a man indemnity against certain +forms of harm to person, reputation, or estate, at the hands of +his neighbors, not because they are wrong, but because they are +harms. The true explanation of the reference of liability to a +moral standard, in the sense which has been explained, is not +that it is for the purpose of improving men's hearts, but that it +is to give a man a fair chance to avoid doing the harm before he +is held responsible for it. It is intended to reconcile the +policy of letting accidents lie where they fall, and the +reasonable freedom of others with the protection of the +individual from injury. + +But the law does not even seek to indemnify a man from all harms. +An unrestricted enjoyment of all his possibilities would +interfere with other equally important enjoyments on the part of +his neighbors. There are certain things which the law allows a +man to do, notwithstanding the fact that he foresees that harm to +another will follow from them. He may charge a man with crime if +the charge is true. He may establish himself in business where he +foresees that [145] of his competition will be to diminish the +custom of another shopkeeper, perhaps to ruin him. He may a +building which cuts another off from a beautiful prospect, or he +may drain subterranean waters and thereby drain another's well; +and many other cases might be put. + +As any of these things may be done with foresight of their evil +consequences, it would seem that they might be done with intent, +and even with malevolent intent, to produce them. The whole +argument of this Lecture and the preceding tends to this +conclusion. If the aim of liability is simply to prevent or +indemnify from harm so far as is consistent with avoiding the +extreme of making a man answer for accident, when the law permits +the harm to be knowingly inflicted it would be a strong thing if +the presence of malice made any difference in its decisions. That +might happen, to be sure, without affecting the general views +maintained here, but it is not to be expected, and the weight of +authority is against it. + +As the law, on the one hand, allows certain harms to be inflicted +irrespective of the moral condition of him who inflicts them, so, +at the other extreme, it may on grounds of policy throw the +absolute risk of certain transactions on the person engaging in +them, irrespective of blameworthiness in any sense. Instances of +this sort have been mentioned in the last Lecture, /1/ and will +be referred to again. + +Most liabilities in tort lie between these two extremes, and are +founded on the infliction of harm which the defendant had a +reasonable opportunity to avoid at the time of the acts or +omissions which were its proximate cause. Rut as fast as specific +rules are worked out in place of the [146] vague reference to the +conduct of the average man, they range themselves alongside of +other specific rules based on public policy, and the grounds from +which they spring cease to be manifest. So that, as will be seen +directly, rules which seem to lie outside of culpability in any +sense have sometimes been referred to remote fault, while others +which started from the general notion of negligence may with +equal ease be referred to some extrinsic ground of policy. + +Apart from the extremes just mentioned, it is now easy to see how +the point at which a man's conduct begins to be at his own peril +is generally fixed. When the principle is understood on which +that point is determined by the law of torts, we possess a common +ground of classification, and a key to the whole subject, so far +as tradition has not swerved the law from a consistent theory. It +has been made pretty clear from what precedes, that I find that +ground in knowledge of circumstances accompanying an act or +conduct indifferent but for those circumstances. + +But it is worth remarking, before that criterion is discussed, +that a possible common ground is reached at the preceding step in +the descent from malice through intent and foresight. Foresight +is a possible common denominator of wrongs at the two extremes of +malice and negligence. The purpose of the law is to prevent or +secure a man indemnity from harm at the hands of his neighbors, +so far as consistent with other considerations which have been +mentioned, and excepting, of course, such harm as it permits to +be intentionally inflicted. When a man foresees that harm will +result from his conduct, the principle which exonerates him from +accident no longer applies, and he is liable. But, as has been +shown, he is bound to foresee [147] whatever a prudent and +intelligent man would have foreseen, and therefore he is liable +for conduct from which such a man would have foreseen that harm +was liable to follow. + +Accordingly, it would be possible to state all cases of +negligence in terms of imputed or presumed foresight. It would be +possible even to press the presumption further, applying the very +inaccurate maxim, that every man is presumed to intend the +natural consequences of his own acts; and this mode of expression +will, in fact, be found to have been occasionally used, /1/ more +especially in the criminal law, where the notion of intent has a +stronger foothold. /2/ The latter fiction is more remote and less +philosophical than the former; but, after all, both are equally +fictions. Negligence is not foresight, but precisely the want of +it; and if foresight were presumed, the ground of the +presumption, and therefore the essential element, would be the +knowledge of facts which made foresight possible. + +Taking knowledge, then, as the true starting-point, the next +question is how to determine the circumstances necessary to be +known in any given case in order to make a man liable for the +consequences of his act. They must be such as would have led a +prudent man to perceive danger, although not necessarily to +foresee the specific harm. But this is a vague test. How is it +decided what those circumstances are? The answer must be, by +experience. + +But there is one point which has been left ambiguous in the +preceding Lecture and here, and which must be touched upon. It +has been assumed that conduct which [148] the man of ordinary +intelligence would perceive to be dangerous under the +circumstances, would be blameworthy if pursued by him. It might +not be so, however. Suppose that, acting under the threats of +twelve armed men, which put him in fear of his life, a man enters +another's close and takes a horse. In such a case, he actually +contemplates and chooses harm to another as the consequence of +his act. Yet the act is neither blameworthy nor punishable. But +it might be actionable, and Rolle, C. J. ruled that it was so in +Gilbert v. Stone. /1/ If this be law, it goes the full length of +deciding that it is enough if the defendant has had a chance to +avoid inflicting the harm complained of. And it may well be +argued that, although he does wisely to ransom his life as he +best may, there is no reason why he should be allowed to +intentionally and permanently transfer his misfortunes to the +shoulders of his neighbors. + +It cannot be inferred, from the mere circumstance that certain +conduct is made actionable, that therefore the law regards it as +wrong, or seeks to prevent it. Under our mill acts a man has to +pay for flowing his neighbor's lands, in the same way that he has +to pay in trover for converting his neighbor's goods. Yet the law +approves and encourages the flowing of lands for the erection of +mills. + +Moral predilections must not be allowed to influence our minds in +settling legal distinctions. If we accept the test of the +liability alone, how do we distinguish between trover and the +mill acts? Or between conduct which is prohibited, and that which +is merely taxed? The only distinction which I can see is in the +difference of the collateral consequences attached to the two +classes of conduct. In the one, the maxim in pari delicto potior +est [149] conditio defendentis, and the invalidity of contracts +contemplating it, show that the conduct is outside the protection +of the law. In the other, it is otherwise. /1/ This opinion is +confirmed by the fact, that almost the only cases in which the +distinction between prohibition and taxation comes up concern the +application of these maxims. + +But if this be true, liability to an action does not necessarily +import wrong-doing. And this may be admitted without at all +impairing the force of the argument in the foregoing Lecture, +which only requires that people should not be made to pay for +accidents which they could not have avoided. + +It is doubtful, however, whether the ruling of Chief Justice +Rolle would now be followed. The squib case, Scott v. Shepherd, +and the language of some text-books, are more or less opposed to +it. /2/ If the latter view is law, then an act must in general +not only be dangerous, but one which would be blameworthy on the +part of the average man, in order to make the actor liable. But, +aside from such exceptional cases as Gilbert v. Stone, the two +tests agree, and the difference need not be considered in what +follows. + +I therefore repeat, that experience is the test by which it is +decided whether the degree of danger attending given conduct +under certain known circumstances is sufficient to throw the risk +upon the party pursuing it. + +For instance, experience shows that a good many guns supposed to +be unloaded go off and hurt people. The ordinarily intelligent +and prudent member of the community [150] would foresee the +possibility of danger from pointing a gun which he had not +inspected into a crowd, and pulling the trigger, although it was +said to be unloaded. Hence, it may very properly be held that a +man who does such a thing does it at his peril, and that, if +damage ensues, he is answerable for it. The co-ordinated acts +necessary to point a gun and pull a trigger, and the intent and +knowledge shown by the co-ordination of those acts, are all +consistent with entire blamelessness. They threaten harm to no +one without further facts. But the one additional circumstance of +a man in the line and within range of the piece makes the conduct +manifestly dangerous to any one who knows the fact. There is no +longer any need to refer to the prudent man, or general +experience. The facts have taught their lesson, and have +generated a concrete and external rule of liability. He who snaps +a cap upon a gun pointed in the direction of another person, +known by him to be present, is answerable for the consequences. + +The question what a prudent man would do under given +circumstances is then equivalent to the question what are the +teachings of experience as to the dangerous character of this or +that conduct under these or those circumstances; and as the +teachings of experience are matters of fact, it is easy to see +why the jury should be consulted with regard to them. They are, +however, facts of a special and peculiar function. Their only +bearing is on the question, what ought to have been done or +omitted under the circumstances of the case, not on what was +done. Their function is to suggest a rule of conduct. + +Sometimes courts are induced to lay down rules by facts of a more +specific nature; as that the legislature passed a certain +statute, and that the case at bar is within [151] the fair +meaning of its words; or that the practice of a specially +interested class, or of the public at large, has generated a rule +of conduct outside the law which it is desirable that the courts +should recognize and enforce. These are matters of fact, and have +sometimes been pleaded as such. But as their only importance is, +that, if believed, they will induce the judges to lay down a rule +of conduct, or in other words a rule of law, suggested by them, +their tendency in most instances is to disappear as fast as the +rules suggested by them become settled. /1/ While the facts are +uncertain, as they are still only motives for decision upon the +law,--grounds for legislation, so to speak,--the judges may +ascertain them in any way which satisfies their conscience. Thus, +courts recognize the statutes of the jurisdiction judicially, +although the laws of other jurisdictions, with doubtful wisdom, +are left to the jury. /2/ They may take judicial cognizance of a +custom of merchants. /3/ In former days, at least, they might +inquire about it in pais after a demurrer. /4/ They may act on +the statement of a special jury, as in the time of Lord Mansfield +and his successors, or upon the finding of a common jury based on +the testimony of witnesses, as is the practice to-day in this +country. But many instances will be found the text-books which +show that, when the facts are ascertained, they soon cease to be +referred to, and give place to a rule of law. + +[152] The same transition is noticeable with regard to the +teachings of experience. There are many cases, no doubt, in which +the court would lean for aid upon a jury; but there are also many +in which the teaching has been formulated in specific rules. +These rules will be found to vary considerably with regard to the +number of concomitant circumstances necessary to throw the peril +of conduct otherwise indifferent on the actor. As the +circumstances become more numerous and complex, the tendency to +cut the knot with the jury becomes greater. It will be useful to +follow a line of cases up from the simple to the more +complicated, by way of illustration. The difficulty of +distinguishing rules based on other grounds of policy from those +which have been worked out in the field of negligence, will be +particularly noticed. + +In all these cases it will be found that there has been a +voluntary act on the part of the person to be charged. The reason +for this requirement was shown in the foregoing Lecture. +Unnecessary though it is for the defendant to have intended or +foreseen the evil which he has caused, it is necessary that he +should have chosen the conduct which led to it. But it has also +been shown that a voluntary act is not enough, and that even a +co-ordinated series of acts or conduct is often not enough by +itself. But the co-ordination of a series of acts shows a further +intent than is necessarily manifested by any single act, and +sometimes proves with almost equal certainty the knowledge of one +or more concomitant circumstances. And there are cases where +conduct with only the intent and knowledge thus necessarily +implied is sufficient to throw the risk of it on the actor. + +For instance, when a man does the series of acts called [153] +walking, it is assumed for all purposes of responsibility that he +knows the earth is under his feet. The conduct per se is +indifferent, to be sure. A man may go through the motions of +walking without legal peril, if he chooses to practise on a +private treadmill; but if he goes through the same motions on the +surface of the earth, it cannot be doubted that he knows that the +earth is there. With that knowledge, he acts at his peril in +certain respects. If he crosses his neighbor's boundary, he is a +trespasser. The reasons for this strict rule have been partially +discussed in the last Lecture. Possibly there is more of history +or of past or present notions of policy its explanation than is +there suggested, and at any rate I do not care to justify the +rule. But it is intelligible. A man who walks knows that he is +moving over the surface of the earth, he knows that he is +surrounded by private estates which he has no right to enter, and +he knows that his motion, unless properly guided, will carry him +into those estates. He is thus warned, and the burden of his +conduct is thrown upon himself. + +But the act of walking does not throw the peril of all possible +consequences upon him. He may run a man down in the street, but +he is not liable for that unless he does it negligently. Confused +as the law is with cross-lights of tradition, and hard as we may +find it to arrive at perfectly satisfactory general theory, it +does distinguish in a pretty sensible way, according to the +nature and degree of the different perils incident to a given +situation. + +From the simple case of walking we may proceed to the more +complex cases of dealings with tangible objects of property. It +may be said that, generally speaking, a man meddles with such +things at his own risk. It does not [154] matter how honestly he +may believe that they belong to himself, or are free to the +public, or that he has a license from the owner, or that the case +is one in which the law has limited the rights of ownership; he +takes the chance of how the fact may turn out, and if the fact is +otherwise than as he supposes, he must answer for his conduct. As +has been already suggested, he knows that he is exercising more +or less dominion over property, or that he is injuring it; he +must make good his right if it is challenged. + +Whether this strict rule is based on the common grounds of +liability, or upon some special consideration of past or present +policy, policy has set some limits to it, as was mentioned in the +foregoing Lecture. + +Another case of conduct which is at the risk of the party without +further knowledge than it necessarily imports, is the keeping of +a tiger or bear, or other animal of a species commonly known to +be ferocious. If such an animal escapes and does damage, the +owner is liable simply on proof that he kept it. In this instance +the comparative remoteness of the moment of choice in the line of +causation from the effect complained of, will be particularly +noticed. Ordinary cases of liability arise out of a choice which +was the proximate cause of the harm upon which the action is +founded. But here there is usually no question of negligence in +guarding the beast. It is enough in most, if not in all cases, +that the owner has chosen to keep it. Experience has shown that +tigers and bears are alert to find means of escape, and that, if +they escape, they are very certain to do harm of a serious +nature. The possibility of a great danger has the same effect as +the probability of a less one, and the law throws the risk of +[155] the venture on the person who introduces the peril into the +community. + +This remoteness of the opportunity of choice goes far to show +that this risk is thrown upon the owner for other reasons than +the ordinary one of imprudent conduct. It has been suggested that +the liability stood upon remote inadvertence. /1/ But the law +does not forbid a man to keep a menagerie, or deem it in any way +blameworthy. It has applied nearly as strict a rule to dealings +which are even more clearly beneficial to the community than a +show of wild beasts. + +This seems to be one of those cases where the ground of liability +is to be sought in policy coupled with tradition, rather than in +any form of blameworthiness, or the existence of such a chance to +avoid doing the harm as a man is usually allowed. But the fact +that remote inadvertence has been suggested for an explanation +illustrates what has been said about the difficulty of deciding +whether a given rule is founded on special grounds, or has been +worked out within the sphere of negligence, when once a special +rule has been laid down. + +It is further to be noticed that there is no question of the +defendant's knowledge of the nature of tigers, although without +that knowledge he cannot be said to have intelligently chosen to +subject the community to danger. Here again even in the domain of +knowledge the law applies its principle of averages. The fact +that tigers and bears are dangerous is so generally known, that +a man who keeps them is presumed to know their peculiarities. In +other words, he does actually know that he has an animal with +certain teeth, claws, and so forth, and he must find out the +[156] rest of what an average member of the community would know, +at his peril. + +What is true as to damages in general done by ferocious wild +beasts is true as to a particular class of damages done by +domestic cattle, namely, trespasses upon another's land. This has +been dealt with in former Lectures, and it is therefore needless +to do more than to recall it here, and to call attention to the +distinction based on experience and policy between damage which +is and that which is not of a kind to be expected. Cattle +generally stray and damage cultivated land when they get upon it. +They only exceptionally hurt human beings. + +I need not recur to the possible historical connection of either +of these last forms of liability with the noxoe deditio, because, +whether that origin is made out or not, the policy of the rule +has been accepted as sound, and carried further in England within +the last few years by the doctrine that a man who brings upon his +land and keeps there anything likely to do mischief if it escape, +must keep it in at his peril. /1/ The strictness of this +principle will vary in different jurisdictions, as the balance +varies between the advantages to the public and the dangers to +individuals from the conduct in question. Danger of harm to +others is not the only thing to be considered, as has been said +already. The law allows some harms to be intentionally inflicted, +and a fortiori some risks to be intentionally run. In some +Western States a man is not required to keep his cattle fenced +in. Some courts have refused to follow Rylands v. Fletcher. /2/ +On the other hand, the principle has been applied to artificial +[157] reservoirs of water, to cesspools, to accumulations of snow +and ice upon a building by reason of the form of its roof, and to +party walls. /1/ + +In these cases, as in that of ferocious animals, it is no excuse +that the defendant did not know, and could not have found out, +the weak point from which the dangerous object escaped. The +period of choice was further back, and, although he was not to +blame, he was bound at his peril to know that the object was a +continual threat to his neighbors, and that is enough to throw +the risk of the business on him. + +I now pass to cases one degree more complex than those so far +considered. In these there must be another concomitant +circumstance known to the party in addition to those of which the +knowledge is necessarily or practically proved by his conduct. +The cases which naturally suggest themselves again concern +animals. Experience as interpreted by the English law has shown +that dogs, rams, and bulls are in general of a tame and mild +nature, and that, if any one of them does by chance exhibit a +tendency to bite, butt, or gore, it is an exceptional phenomenon. +Hence it is not the law that a man keeps dogs, rams, bulls, and +other like tame animals at his peril as to the personal damages +which they may inflict, unless he knows or has notice that the +particular animal kept by him has the abnormal tendency which +they do sometimes show. The law has, however, been brought a +little nearer to actual experience by statute in many +jurisdictions. + +Now let us go one step farther still. A man keeps an unbroken and +unruly horse, knowing it to be so. That is not enough to throw +the risk of its behavior on him. The [158] tendency of the known +wildness is not dangerous generally, but only under particular +circumstances. Add to keeping, the attempt to break the horse; +still no danger to the public is disclosed. But if the place +where the owner tries to break it is a crowded thoroughfare, the +owner knows an additional circumstance which, according to common +experience, makes this conduct dangerous, and therefore must take +the risk of what harm may be done. /1/ On the other hand, if a +man who was a good rider bought a horse with no appearance of +vice and mounted it to ride home, there would be no such apparent +danger as to make him answerable if the horse became unruly and +did damage. /2/ Experience has measured the probabilities and +draws the line between the two cases. + +Whatever may be the true explanation of the rule applied to +keeping tigers, or the principle of Rylands v. Fletcher, in the +last cases we have entered the sphere of negligence, and, if we +take a case lying somewhere between the two just stated, and add +somewhat to the complexity of the circumstances, we shall find +that both conduct and standard would probably be left without +much discrimination to the jury, on the broad issue whether the +defendant had acted as a prudent man would have done under the +circumstances. + +As to wrongs called malicious or intentional it is not necessary +to mention the different classes a second time, and to find them +a place in this series. As has been seen, they vary in the number +of circumstances which must be known. Slander is conduct which is +very generally at the risk of [159] the speaker, because, as +charges of the kind with which it deals are manifestly +detrimental, the questions which practically arise for the most +part concern the defence of truth or privilege. Deceit requires +more, but still simple facts. Statements do not threaten the harm +in question unless they are made under such circumstances as to +naturally lead to action, and are made on insufficient grounds. + +It is not, however, without significance, that certain wrongs are +described in language importing intent. The harm in such cases is +most frequently done intentionally, if intent to cause a certain +harm is shown, there need to prove knowledge of facts which made +it that harm would follow. Moreover, it is often much easier to +prove intent directly, than to prove the knowledge which would +make it unnecessary. + +The cases in which a man is treated as the responsible cause of a +given harm, on the one hand, extend beyond those in which his +conduct was chosen in actual contemplation of that result, and in +which, therefore, he may be to have chosen to cause that harm; +and, on the other hand, they do not extend to all instances where +the damages would not have happened but for some remote election +his part. Generally speaking, the choice will be found to have +extended further than a simple act, and to co-ordinated acts into +conduct. Very commonly it will have extended further still, to +some external consequence. But generally, also, it will be found +to have stopped short of the consequence complained of. + +The question in each case is whether the actual choice, or, in +other words, the actually contemplated result, was near enough to +the remoter result complained of to throw the peril of it upon +the actor. + +[160] Many of the cases which have been put thus far are cases +where the proximate cause of the loss was intended to be produced +by the defendant. But it will be seen that the same result may be +caused by a choice at different points. For instance, a man is +sued for having caused his neighbor's house to burn down. The +simplest case is, that he actually intended to burn it down. If +so, the length of the chain of physical causes intervening is of +no importance, and has no bearing on the case. + +But the choice may have stopped one step farther back. The +defendant may have intended to light a fire on his own land, and +may not have intended to burn the house. Then the nature of the +intervening and concomitant physical causes becomes of the +highest importance. The question will be the degree of danger +attending the contemplated (and therefore chosen) effect of the +defendant's conduct under the circumstances known to him. If this +was very plain and very great, as, for instance, if his conduct +consisted in lighting stubble near a haystack close to the house, +and if the manifest circumstances were that the house was of +wood, the stubble very dry, and the wind in a dangerous quarter, +the court would probably rule that he was liable. If the +defendant lighted an ordinary fire in a fireplace in an adjoining +house, having no knowledge that the fireplace was unsafely +constructed, the court would probably rule that he was not +liable. Midway, complicated and doubtful cases would go to the +jury. + +But the defendant may not even have intended to set the fire, and +his conduct and intent may have been simply to fire a gun, or, +remoter still, to walk across a room, in doing which he +involuntarily upset a bottle of acid. So that cases may go to the +jury by reason of the remoteness [161] of the choice in the +series of events, as well as because of the complexity of the +circumstances attending the act or conduct. The difference is, +perhaps, rather dramatic than substantial. + +But the philosophical analysis of every wrong begins by +determining what the defendant has actually chosen, that is to +say, what his voluntary act or conduct has been, and what +consequences he has actually contemplated as flowing from them, +and then goes on to determine what dangers attended either the +conduct under the known circumstances, or its contemplated +consequence under the contemplated circumstances. + +Take a case like the glancing of Sir Walter Tyrrel's arrow. If an +expert marksman contemplated that the arrow would hit a certain +person, cadit qucoestio. If he contemplated that it would glance +in the direction of another person, but contemplated no more than +that, in order to judge of his liability we must go to the end of +his fore-sight, and, assuming the foreseen event to happen, +consider what the manifest danger was then. But if no such event +was foreseen, the marksman must be judged by the circumstances +known to him at the time of shooting. + +The theory of torts may be summed up very simply. At the two +extremes of the law are rules determined by policy without +reference of any kind to morality. Certain harms a man may +inflict even wickedly; for certain others he must answer, +although his conduct has been prudent and beneficial to the +community. + +But in the main the law started from those intentional wrongs +which are the simplest and most pronounced cases, as well as the +nearest to the feeling of revenge which leads to self-redress. It +thus naturally adopted the vocabulary, [162] and in some degree +the tests, of morals. But as the law has grown, even when its +standards have continued to model themselves upon those of +morality, they have necessarily become external, because they +have considered, not the actual condition of the particular +defendant, but whether his conduct would have been wrong in the +fair average member of the community, whom he is expected to +equal at his peril. + +In general, this question will be determined by considering the +degree of danger attending the act or conduct under the known +circumstances. If there is danger that harm to another will +follow, the act is generally wrong in the sense of the law. + +But in some cases the defendant's conduct may not have been +morally wrong, and yet he may have chosen to inflict the harm, as +where he has acted in fear of his life. In such cases he will be +liable, or not, according as the law makes moral blameworthiness, +within the limits explained above, the ground of liability, or +deems it sufficient if the defendant has had reasonable warning +of danger before acting. This distinction, however, is generally +unimportant, and the known tendency of the act under the known +circumstances to do harm may be accepted as the general test of +conduct. + +The tendency of a given act to cause harm under given +circumstances must be determined by experience. And experience +either at first hand or through the voice of the jury is +continually working out concrete rules, which in form are still +more external and still more remote from a reference to the moral +condition of the defendant, than even the test of the prudent man +which makes the first stage of the division between law and +morals. It does this in the domain [163] of wrongs described as +intentional, as systematically as in those styled unintentional +or negligent. + +But while the law is thus continually adding to its specific +rules, it does not adopt the coarse and impolitic principle that +a man acts always at his peril. On the contrary, its concrete +rules, as well as the general questions addressed to the jury, +show that the defendant must have had at least a fair chance of +avoiding the infliction of harm before he becomes answerable for +such a consequence of his conduct. And it is certainly arguable +that even a fair chance to avoid bringing harm to pass is not +sufficient to throw upon a person the peril of his conduct, +unless, judged by average standards, he is also to blame for what +he does. + +[164] + + + + +LECTURE V. -- THE BAILEE AT COMMON LAW. + +So far the discussion has been confined to the general principles +of liability, and to the mode of ascertaining the point at which +a man begins to act at his own peril. But it does not matter to a +man whether he acts at his own peril or not, unless harm comes of +it, and there must always be some one within reach of the +consequences of the act before any harm can be done. Furthermore, +and more to the point, there are certain forms of harm which are +not likely to be suffered, and which can never be complained of +by any one except a person who stands in a particular relation to +the actor or to some other person or thing. Thus it is neither a +harm nor a wrong to take fish from a pond unless the pond is +possessed or owned by some one, and then only to the possessor or +owner. It is neither a harm nor a wrong to abstain from +delivering a bale of wool at a certain time and place, unless a +binding promise has been made so to deliver it, and then it is a +wrong only to the promisee. + +The next thing to be done is to analyze those special relations +out of which special rights and duties arise. The chief of +them--and I mean by the word "relations" relations of fact +simply--are possession and contract, and I shall take up those +subjects successively. + +The test of the theory of possession which prevails in any system +of law is to be found in its mode of dealing [165] who have a +thing within their power, but not own it, or assert the position +of an owner for with regard to it, bailees, in a word. It is +therefore, as a preliminary to understanding the common-law +theory of possession, to study the common law with regard to +bailees. + +The state of things which prevailed on the border between England +and Scotland within recent times, and which is brought back in +the flesh by the ballad of the Fray O'Suport, is very like that +which in an earlier century left its skeleton in the folk-laws of +Germany and England. Cattle were the principal property known, +and cattle-stealing the principal form of wrongful taking of +property. Of law there was very little, and what there was +depended almost wholly upon the party himself to enforce. The +Salic Law of the fifth century and the Anglo-Saxon laws of Alfred +are very full in their directions about following the trail. If +the cattle were come up with before three days were gone, the +pursuer had the fight to take and keep them, subject only to +swearing that he lost them against his will. If more than three +days went by before the cattle were found, the defendant might +swear, if he could, to facts which would disprove the claimant's +loss. + +This procedure was in truth a legal procedure; but it depended +for its beginning and for its execution on the party making the +claim. From its "executive" nature, it could hardly have been +started by any other than the person on the spot, in whose +keeping the cattle were. The oath was to the effect that the +party had lost possession against his will. But if all that a man +had to swear was that he had lost possession against his will, it +is a natural conclusion that the right to take the oath and make +use of [166] the procedure depended on possession, and not on +ownership. Possession was not merely sufficient, but it was +essential. Only he who was in possession could say that he had +lost the property against his will, just as only he who was on +the spot could follow the cattle. /1/ + +This, so far as known, was the one means afforded by the early +law of our race for the recovery of property lost against one's +will. So that, in a word, this procedure, modelled on the +self-redress natural to the case which gave rise to it, was the +only remedy, was confined to the man in possession, and was not +open to the owner unless he was that man. + +To this primitive condition of society has been traced a rule +which maintained itself to later times and a more civilized +procedure, that, if chattels were intrusted by their owner to +another person, the bailee, and not the bailor, was the proper +party to sue for their wrongful appropriation by a third. It +followed that if the bailee, or person [167] so intrusted, sold +or gave the goods in his charge to another, the owner could only +look to the bailee, and could not sue the stranger; not from any +principle in favor of trade, intended to protect those who bought +in good faith from parties in possession, but because there was +no form of action known which was open to him. But as the +remedies were all in the bailee's hands, it also followed that he +was bound to hold his bailor harmless. If the goods were lost, it +was no excuse that they were stolen without his fault. He alone +could recover the lost property, and therefore he was bound to do +so. + +In the course of time this reason ceased to exist. An owner out +of possession could sue the wrongful taker of his property, as +well as one who had possession. But the strict liability of the +bailee remained, as such rules do remain in the law, long after +the causes which gave rise to it had disappeared, and at length +we find cause and effect inverted. We read in Beaumanoir (A.D. +1283) that, if a hired thing is stolen, the suit belongs to the +bailee, because he is answerable to the person from whom he +hired. /1/ At first the bailee was answerable to the owner, +because he was the only person who could sue. Now it was said he +could sue because he was answerable to the owner. + +All the above peculiarities reappear in the Anglo-Norman law, and +from that day to this all kinds of bailees have been treated as +having possession in a legal sense, as I shall presently show. + +It is desirable to prove the native origin of our law of +bailment, in order that, when theory comes to be considered, +modern German opinion may not be valued at more than its true +worth. The only existing theories on [168] the subject come from +Germany. The German philosophers who have written upon law have +known no other system than the Roman, and the German lawyers who +have philosophized have been professors of Roman law. Some rules +which we think clear are against what the German civilians would +regard as first principles. To test the value of those +principles, or at least to prevent the hasty assumption that they +are universal, toward which there is a slight tendency among +English writers, it is well to realize that we are dealing with a +new system, of which philosophy has not yet taken account. + +In the first place, we find an action to recover stolen property, +which, like the Salic procedure, was based on possession, not on +title. Bracton says that one may sue for his chattel as stolen, +by the testimony of good men, and that it does not matter whether +the thing thus taken was his own property or another's, provided +it was in his custody. /1/ + +The point of especial importance, it will be remembered, was the +oath. The oath of the probi homines would seem from the letter of +Bracton to have been that the thing was lost (adirata), and this +we are expressly told was the fact in a report of the year 1294. +"Note that where a man's chattel is lost (ou la chosse de un home +est endire), he may count that he [the finder] tortiously detains +it, &c., and tortiously for this that whereas he lost the said +thing on such a day, &c., he [the loser] came on such a day, &c. +[169] (la vynt yl e en jour), and found it in the house of such +an one, and told him, &c., and prayed him to restore the Sing, +but that he would not restore it, &c., to his damage, &c.; and if +he, &c. In this case, the demandant must prove (his own hand the +twelfth) that he lost the thing." /1/ + +Assuming that as the first step we find a procedure kindred to +that of the early German folk-laws, the more important question +is whether we find any principles similar to those which have +just been explained. One of these, it will be remembered, +concerned wrongful transfer by the bailee. We find it laid down +in the Year Books that, if I deliver goods to a bailee to keep +for me, and he sells or gives them to a stranger, the property is +vested in the stranger by the gift, and I cannot maintain +trespass against him; but that I have a good remedy against the +bailee by writ of detinue (for his failure to return the goods). +/2/ These cases have been understood, and it would seem on the +whole rightly, not merely to deny trespass to the bailor, but any +action whatever. Modern writers have added, however, the +characteristically modern qualification, that the purchase must +be bona fide, and without notice. /3/ It may be answered, that +the proposition extends to gifts as well as to sales by the +bailee, that there is no such condition in the old books, and +that it is contrary to the spirit of the strict doctrines of the +common law to read it in. No lawyer needs to be told that, even +so qualified, this is no [170] longer the law. /1/ The doctrine +of the Year Books must be regarded as a survival from the +primitive times when we have seen the same rule in force, unless +we are prepared to believe that in the fifteenth century they had +a nicer feeling for the rights of bona fide purchasers than at +present. + +The next point in logical order would be the degree of +responsibility to which the bailee was held as towards his bailor +who intrusted him. But for convenience I will consider first the +explanation which was given of the bailee's right of action +against third persons wrongfully taking the goods from his +possession. The inverted explanation of Beaumanoir will be +remembered, that the bailee could sue because he was answerable +over, in place of the original rule, that he was answerable over +so strictly because only he could sue. We find the same reasoning +often repeated in the Year Books, and, indeed, from that day to +this it has always been one of the commonplaces of the law. Thus +Hankford, then a judge of the Common Bench, says (circa A.D. +1410), /2/ "If a stranger takes beasts in my custody, I shall +have a writ of trespass against him, and shall recover the value +of the beasts, because I am chargeable for the beasts to my +bailor, who has the property." There are cases in which this +reasoning was pushed to the conclusion, that if, by the terms of +the trust, the bailee was not answerable for the goods if stolen, +he would not have an action against the thief. /3/ The same +explanation is repeated to this day. Thus we read in a well- +known textbook, [171] "For the bailee being responsible to the +bailor, if the goods be lost or damaged by negligence, or if he +do not deliver them up on lawful demand, it is therefore +reasonable that he should have a right of action," &c. /1/ In +general, nowadays, a borrower or hirer of property is not +answerable if it is taken from him against his will, and if the +reason offered were a true one, it would follow that, as he was +not answerable over, he could not sue the wrong-doer. It would +only be necessary for the wrong-doer to commit a wrong so gross +as to free the bailee from responsibility, in order to deprive +him of his right of action. The truth is, that any person in +possession, whether intrusted and answerable over or not, a +finder of property as well as a bailee, can sue any one except +the true owner for interfering with his possession, as will be +shown more particularly at the end of the next Lecture. + +The bailor also obtained a right of action against the wrong-doer +at a pretty early date. It is laid down by counsel in 48 Edward +III., /2/ in an action of trespass by an agister of cattle, that, +"in this case, he who has the property may have a writ of +trespass, and he who has the custody another writ of trespass. +Persay: Sir, it is true. But [172] he who recovers first shall +oust the other of the action, and so it shall be in many cases, +as if tenant by elegit is ousted, each shall have the assize, +and, if the one recover first, the writ of the other is abated, +and so here." + +It would seem from other books that this was spoken of bailments +generally, and was not limited to those which are terminable at +the pleasure of the bailor. Thus in 22 Edward IV., counsel say, +"If I bail to you my goods, and another takes them out of your +possession, I shall have good action of trespass quare vi et +armis." /1/ And this seems to have been Rolle's understanding in +the passage usually relied on by modern courts. /2/ + +It was to be expected that some action should be given to the +bailor as soon as the law had got machinery which could be worked +without help from the fresh pursuit and armed hands of the +possessor and his friends. To allow the bailor to sue, and to +give him trespass, were pretty nearly the same thing before the +action on the case was heard of. Many early writs will be found +which show that trespass had not always the clear outline which +it developed later. The point which seems to be insisted on in +the Year Books is, as Brooke sums it up in the margin of his +Abridgment, that two shall have an action for a single act,--not +that both shall have trespass rather than case. /3/ It should be +added that the Year Books quoted do not go beyond the case of a +wrongful taking out of the custody of the bailee, the old case of +the folk-laws. /4/ Even thus [173] the right to maintain trespass +is now denied where bailee has the exclusive right to the goods +by lease or lien; /1/ although the doctrine has been repeated +with reference to bailments terminable at the pleasure of the +bailor. /2/ But the modified rule does not concern the present +discussion, any more than the earlier form, because it still +leaves open the possessory remedies to all bailees without +exception. This appears from the relation of the modified rule to +the ancient law; from the fact that Baron Parke, in the just +cited case of Manders v. Williams, hints that he would have been +prepared to apply the old rule to its full extent but for Gordon +v. Harper, and still more obviously from the fact, that the +bailee's right to trespass and trover is asserted in the same +breath with that of the bailor, as well as proved by express +decisions to be cited. + +It is true that in Lotan v. Cross, /3/ Lord Ellenborough ruled at +nisi prius that a lender could maintain trespass for damage done +to a chattel in the hands of a borrower, and that the case is +often cited as authority without remark. Indeed, it is sometimes +laid down generally, in reputable text-books, that a gratuitous +bailment does not change the possession, but leaves it in the +bailor; /4/ that a gratuitous bailee is quasi a servant of the +bailor, and the possession of one is the possession of the other; +and that it is for this reason that, although the bailee may sue +on [174] his possession, the bailor has the same actions. /1/ A +part of this confusion has already been explained, and the rest +will be when I come to speak of servants, between whom and all +bailees there is a broad and well-known distinction. But on +whatever ground Lotan v. Cross may stand, if on any, it cannot +for a moment be admitted that borrowers in general have not +trespass and trover. A gratuitous deposit for the sole benefit of +the depositor is a much stronger case for the denial of these +remedies to the depositary; yet we have a decision by the full +court, in which Lord Ellenborough also took part, that a +depositary has case, the reasoning implying that a fortiori a +borrower would have trespass. And this has always been the law. +/2/ It has been seen that a similar doctrine necessarily resulted +from the nature of the early German procedure; and the cases +cited in the note show that, in this as in other respects, the +English followed the traditions of their race. + +The meaning of the rule that all bailees have the possessory +remedies is, that in the theory of the common law every bailee +has a true possession, and that a bailee recovers on the strength +of his possession, just as a finder does, and as even a wrongful +possessor may have full damages or a return of the specific thing +from a stranger to the title. On the other hand, so far as the +possessory actions are still allowed to bailors, it is not on the +ground that they also have possession, but is probably by a +survival, which [175] explained, and which in the modern form of +the an anomaly. /1/ The reason usually given is, that a right of +immediate possession is sufficient,--a reason which the notion +that the bailor is actually possessed. + +The point which is essential to understanding the common-law +theory of possession is now established: that all bailees from +time immemorial have been regarded by the English law as +possessors, and entitled to the possessory remedies. It is not +strictly necessary to go on and complete the proof that our law +of bailment is of pure German descent. But, apart from curiosity, +the doctrine remaining to be discussed has had such important +influence upon the law of the present day, that I shall follow it +out with some care. That doctrine was the absolute responsibility +of the bailee to the bailor, if the goods were wrongfully taken +from him. /2/ + +The early text-writers are not as instructive as might be hoped, +owing to the influence of the Roman law. Glanvil, however, says +in terms that, if a borrowed thing be destroyed or lost in any +way while in the borrower's custody, he is absolutely bound to +return a reasonable price. /3/ So does Bracton, who partially +repeats but modifies the language of Justinian as to commodatum, +depositum, and pignus; /4/ and as to the duty of the hirer to use +the care of a diligentissimus paterfamilias. /5/ + +[176] The language and decisions of the courts are perfectly +clear; and there we find the German tradition kept alive for +several centuries. I begin with the time of Edward II., about +1315. In detinue the plea was that the plaintiff delivered the +defendant a chest locked with his key, that the chattels were in +the chest, and that they were taken from the defendant together +with his own goods by robbery. The replication was that the goods +were delivered to the defendant out of enclosure, and Fitzherbert +says the party was driven to that issue; /1/ which implies that, +if not in the chest, but in the defendant's custody, he was +liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest +would make any difference; but the old books agree that there is +no delivery if the goods are under lock and key; and this is the +origin of the distinction as to carriers breaking bulk in modern +criminal law. /3/ In the reign of Edward III., /4/ the case of a +pledge came up, which seems always to have been regarded as a +special bailment to keep as one's own goods. The defence was, +that the goods were stolen with the defendant's own. The +plaintiff was driven to reply a tender before the theft, which +would have put an end to the pledge, and left the defendant a +general bailee. /5/ Issue was taken thereon, which confirms the +other cases, by implying that in that event the defendant would +be liable. + +Next I take a case of the time of Henry VI., A.D. 1455. /6/ [177] +was an action of debt against the Marshal of the Marshalsea, or +jailer of the King's Bench prison, for an escape of a prisoner. +Jailers in charge of prisoners were governed by the same law as +bailees in charge of cattle. The body of the prisoner was +delivered to the jailer to keep under the same liabilities that +cows or goods might have been. /1/ He set up in defence that +enemies of the king broke into the prison and carried off the +prisoner, against the will of the defendant. The question was +whether this was a good defence. The court said that, if alien +enemies of the king, for instance the French, released the +prisoner, or perhaps if the burning of the prison gave him a +chance to escape, the excuse would be good, "because then [the +defendant] has remedy against no one." But if subjects of the +king broke the prison, the defendant would be liable, for they +are not enemies, but traitors, and then, it is implied, the +defendant would have a right of action against them, and +therefore would himself be answerable. In this case the court got +very near to the original ground of liability, and distinguished +accordingly. The person intrusted was liable in those cases where +he had a remedy over against the wrong-doer (and in which, +originally, he was the only person who had such a remedy); and, +on the other hand, his liability, being founded on that +circumstance, ceased where the remedy ceased. The jailer could +not sue the soldiers of an invading army of Frenchmen; but in +theory he could sue any British subject who carried off the +prisoner, however little it was likely that he would get much +satisfaction in that way. + +A few years later the law is stated the same way by the famous +Littleton. He says that, if goods are delivered to [178] a man, +he shall have an action of trespass if they are carried off, for +he is chargeable over. /1/ That is, he is bound to make the loss +good to the party who intrusted him. + +In 9 Edward IV., /2/ Danby says if a bailee received goods to +keep as his proper goods, then robbery shall excuse him, +otherwise not. Again, in a later case /3/ robbery is said not to +be an excuse. There may have been some hesitation as to robbery +when the robber was unknown, and so the bailee had no remedy +over, /4/ or even as to robbery generally, on the ground that by +reason of the felony the bailee could not go against either the +robber's body or his estate; for the one was hanged and the other +forfeited. /5/ But there is not a shadow of doubt that the bailee +was not excused by an ordinary wrongful taking. "If the goods are +taken by a trespasser, of whom the bailee has conusance, he shall +be chargeable to his bailor, and shall have his action over +against his trespasser." /6/ The same point was touched in other +passages of the Year Books, /7/ and the rule of law is clearly +implied by the reason which was given for the bailee's right to +sue in the cases cited above. + +The principle was directly decided in accordance with the ancient +law in the famous case of Southcote v. Bennet. /8/ This was +detinue of goods delivered to the defendant to [179] keep safely. +The defendant confessed the delivery, and set up he was robbed of +the goods by J.S. "And, after argument at the bar, Gawdy and +Clench, ceteris absentibus, held that the plaintiff ought to +recover, because it was not a special bailment; that the +defendant accepted them to keep as his proper goods, and not +otherwise; but it is a delivery, which chargeth him to keep them +at his peril. And it is not any plea in a detinue to say that he +was robbed by one such; for he hath his remedy over by trespass, +or appeal, to have them again." The above from Croke's report +implies, what Lord Coke expressly says, that "to be kept, and to +be kept safe, is all one," and both reports agree that the +obligation was founded on the delivery alone. Croke's report +confirms the caution which Lord Coke adds to his report: "Note, +reader, it is good policy for him who takes any goods to keep, to +take them in special manner, scil. to keep them as he keeps his +own goods,... or if they happen to be stolen or purloined, that +he shall not be answerable for them; for he who accepted them +ought to take them in such or the like manner, or otherwise he +may be charged by his general acceptance." + +Down to this time, at least, it was clear law that, if a person +accepted the possession of goods to keep for another even as a +favor, and lost them by wrongful taking, wholly without his +fault, he was bound to make good the loss, unless when he took +possession he expressly stipulated against such a responsibility. +The attempts of Lord Holt in Coggs v. Bernard, and of Sir William +Jones in his book on Bailments, to show that Southcote v. Bennet +was not sustained by authority, were futile, as any one who will +Study the Year Books for himself may see. The same principle was +laid down seven years before by Peryam, [180] C. B., in Drake v. +Royman, /1/ and Southcote's Case was followed as a leading +precedent without question for a hundred years. + +Thus the circle of analogies between the English and the early +German law is complete. There is the same procedure for lost +property, turning on the single question whether the plaintiff +had lost possession against his will; the same principle that, if +the person intrusted with the property parted with it to another, +the owner could not recover it, but must get his indemnity from +his bailee; the same inverted explanation, that the bailee could +sue because he was answerable over, but the substance of the true +doctrine in the rule that when he had no remedy he was not +answerable; and, finally, the same absolute responsibility for +loss, even when happening without fault on the part of the person +intrusted. The last and most important of these principles is +seen in force as late as the reign of Queen Elizabeth. We have +now to follow its later fortunes. + +A common carrier is liable for goods which are stolen from him, +or otherwise lost from his charge except by the act of God or the +public enemy. Two notions have been entertained with regard to +the source of this rule: one, that it was borrowed from the Roman +law; /2/ the other, that it was introduced by custom, as an +exception to the general law of bailment, in the reigns of +Elizabeth and James I. /3/ + +I shall try to show that both these notions are wrong, that this +strict responsibility is a fragmentary survival from the general +law of bailment which I have just explained; [181] the +modifications which the old law has undergone were due in part to +a confusion of ideas which came the displacement of detinue by +the action on the case, in part to conceptions of public policy +which were read into the precedents by Lord Holt, and in part to +still later conceptions of policy which have been read into the +reasonings of Lord Holt by later judges. + +Southcote's Case was decided in the forty-third year of Queen +Elizabeth (A.D. 1601). I think the first mention of a carrier, +pertinent to the question, occurs in Woodlife's Case, /1/ decided +four or five years earlier (38 or 39 Eliz., A.D. 1596 or 1597). +It was an action of account for merchandise delivered to the +defendant, it would seem as a factor ("pur +merchandizer")--clearly not as a carrier. Plea, robbery at sea +with defendant's own goods. Gawdy, one of the judges who decided +Southcote's Case, thought the plea bad; but Popham, C. J. said +that, though it would not be a good plea for a carrier because he +is paid for his carriage, there was a difference in this respect +between carriers and other servants and factors. + +This is repeated in Southcote's Case, and appears to involve a +double distinction,--first between paid and unpaid bailees, next +between bailees and servants. If the defendant was a servant not +having control over the goods, he might not fall within the law +of bailment, and factors are treated on the footing of servants +in the early law. + +The other diversity marked the entrance of the doctrine of +consideration into the law of bailment. Consideration originally +meant quid pro quo, as will be explained hereafter. It was thus +dealt with in Doctor and Student /2/ when the principle was still +young. Chief Justice [183] Popham probably borrowed his +distinction between paid and unpaid bailees from that work, where +common carriers are mentioned as an example of the former class. +A little earlier, reward made no difference. /1/ + +But in Woodlife's Case, in reply to what the Chief Justice had +said, Gawdy cited the case of the Marshal of the King's Bench, +/2/ stated above, whereupon Popham fell back on the old +distinction that the jailer had a remedy over against the rebels, +but that there was no remedy over in the case at bar. + +The other cases relied on were some of those on general bailment +collected above; the same authorities, in short, on which +Southcote's Case was founded. The principle adopted was the same +as in Southcote's Case, subject only to the question whether the +defendant fell within it. Nothing was said of any custom of the +realm, or ever had been in any reported case before this time; +and I believe this to be the first instance in which carriers are +in any way distinguished from any other class of persons +intrusted with goods. There is no hint of any special obligation +peculiar to them in the old books; and it certainly is not true, +that this case introduced one. It will be noticed, with reference +to what follows, that Popham does not speak of common carriers, +but of carriers. + +Next came Southcote's Case /3/ (43 Eliz., A.D. 1601), which +presented the old law pure and simple, irrespective of reward or +any modern innovation. In this and the earlier instances of loss +by theft, the action was detinue, counting, we may presume, +simply on a delivery and wrongful detainer. + +[183] But about this time important changes took place in the +procedure usually adopted, which must be explained. If the +chattel could be returned in specie, detinue afforded no +satisfaction for damage which it might have suffered through the +bailee's neglect. /1/ The natural remedy for such damage was the +action on the case. But before this could be made entirely +satisfactory, there were certain difficulties to be overcome. The +neglect which occasioned the damage might be a mere omission, and +what was there akin to trespass in a nonfeasance to sustain the +analogy upon which trespass on the case was founded? Moreover, to +charge a man for not acting, you must show that it was his duty +to act. As pleadings were formerly construed, it would not have +been enough to allege that the plaintiff's goods were damaged by +the defendant's negligence. /2/ These troubles had been got over +by the well-known words, super se assumpsit, which will be +explained later. Assumpsit did not for a long time become an +independent action of contract, and the allegation was simply the +inducement to an action of tort. The ground of liability was that +the defendant had started upon the undertaking, so that his +negligent omission, which let in the damage, could be connected +with his acts as a part of his dealing with the thing. /3/ We +shall find Lord Holt recognizing this original purport of +assumpsit when we come to Coggs v. Bernard. Of course it was not +confined to cases of bailment. + +But there was another way besides this by which the defendant +could be charged with a duty and made liable [184] in case, and +which, although less familiar to lawyers, has a special bearing +on the law of carriers in later times. If damage had been done or +occasioned by the act or omission of the defendant in the pursuit +of some of the more common callings, such as that of a farrier, +it seems that the action could be maintained, without laying an +assumpsit, on the allegation that he was a "common" farrier. /1/ +The latter principle was also wholly independent of bailment. It +expressed the general obligation of those exercising a public or +"common" business to practise their art on demand, and show skill +in it. "For," as Fitzherbert says, "it is the duty of every +artificer to exercise his art rightly and truly as he ought." /2/ + +When it had thus been established that case would lie for damage +when occasioned by the omission, as well as when caused by the +act, of the defendant, there was no reason for denying it, even +if the negligent custody had resulted in the destruction of the +property. /3/ From this it was but a step to extend the same form +of action to all cases of loss by a bailee, and so avoid the +defendant's right to wage his law. Detinue, the primitive remedy, +retained that mark of primitive procedure. The last extension was +made about the time of Southcote's Case. /4/ But when the [185] +same form of action thus came to be used alike for damage or +destruction by the bailee's neglect and for loss by a wrong-doer +against whom the bailee had a remedy over, a source was opened +for confusion with regard to the foundation and nature of the +defendant's duty. + +In truth, there were two sets of duties,--one not peculiar to +bailees, arising from the assumpsit or public calling of the +defendant, as just explained; the other, the ancient obligation, +peculiar to them as such, of which Southcote's Case was an +example. But any obligation of a bailee might be conceived of as +part of a contract of bailment, after assumpsit had become +appropriated to contract, the doctrine of consideration had been +developed, (both of which had happened in Lord Coke's time,) it +seemed unnecessary to distinguish nicely between the two sets of +duties just mentioned, provided a consideration and special +promise could be alleged. Furthermore, as formerly the +defendant's public calling had the same effect as an assumpsit +for the purpose of charging him in tort, it seems now to have +been thought an equally good substitute for a special promise, in +order to charge him in assumpsit. In Rogers v. Head, /1/ the +argument was, that to charge one in assumpsit you must show +either his public calling at the time of the delivery, or a +special promise on sufficient consideration. This argument +assumes that a bailee who received goods in the course of a +public employment, [186] for instance as a common carrier, could +be charged in this form of action for a breach of either of the +above sets of duties, by alleging either his public calling or +his reward and a special promise. It seems to have been admitted, +as was repeatedly decided before and since that case, that one +who was not a common carrier could have been charged for +non-delivery in a special action; that is, in case as +distinguished from assumpsit. + +Suppose, next, that the plaintiff sued in case for a tort. As +before, the breach of duty complained of might be such damage to +property as had always been sued for in that form of action, or +it might be a loss by theft for which detinue would formerly have +been brought, and which fell on the bailee only by reason of the +bailment. If the goods had been stolen, the bailee's liability +rested neither on his common calling nor on his assumpsit and his +neglect, but arose from the naked facts that he had accepted a +delivery and that the goods were gone, and in such cases it ought +to have been enough to allege those facts in the declaration. /1/ +But it was very natural that the time-honored foundations for the +action on the case in its more limited application should still +be laid in the pleadings, even after the scope of the action had +been enlarged. We shall have to inquire, later, whether the +principles of Southcote's Case were not also extended in the +opposite direction to cases not falling within it. The reasons +for the rule which it laid down had lost their meaning centuries +before Gawdy and Clench were born, when owners had acquired the +right to sue for the wrongful taking of property in the hands +[187] and the rule itself was a dry precedent likely to be +followed according to the letter because the spirit had departed. +It had begun to totter when the reporter cautioned bailees to +accept in such terms as to get rid of it. /1/ + +Accordingly, although that decision was the main authority relied +on for the hundred years between it and Coggs v. Bernard whenever +a peculiar responsibility was imposed upon bailees, we find that +sometimes an assumpsit was laid as in the early precedents, /2/ +or more frequently that the bailee was alleged to be a common +bargeman, or common carrier, or the like, without much reference +to the special nature of the tort in question; and that the true +bearing of the allegation was sometimes lost sight of. At first, +however, there were only some slight signs of confusion in the +language of one or two cases, and if the duty was conceived to +fall within the principle of Southcote's Case, pleaders did not +always allege the common or public calling which was held +unnecessary. /3/ But they also adopted other devices from the +precedents in case, or to strengthen an obligation which they did +not well understand. Chief Justice Popham had sanctioned a +distinction between paid and unpaid bailees, hence it was deemed +prudent to lay a reward. Negligence was of course averred; and +finally it became frequent to allege an obligation by the law and +custom of the realm. This last deserves a little further +attention. + +There is no writ in the Register alleging any special obligation +of common carriers by the custom of the realm. But the writ +against innkeepers did lay a duly "by the [188] law and custom of +England," and it was easy to adopt the phrase. The allegation did +not so much imply the existence of a special principle, as state +a proposition of law in the form which was then usual. There are +other writs of trespass which allege a common-law duty in the +same way, and others again setting forth a statutory obligation. +/1/ So "the judges were sworn to execute justice according to law +and the custom of England." /2/ + +The duties of a common carrier, so far as the earlier evidence +goes, were simply those of bailees in general, coupled with the +liabilities generally attached to the exercise of a public +calling. The word "common" addressed itself only to the latter +point, as has been shown above. This is further illustrated by +the fact that, when the duty was thus set forth, it was not +alleged as an obligation peculiar to common carriers as such, but +was laid as the custom of law of common hoymen, or lightermen, +&c., according to the business of the party concerned. It will be +noticed that Chief Justice Holt in Coggs v. Bernard states the +liability as applicable to all bailees for reward, exercising a +public employment, and mentions common hoymen and masters of +ships alongside of, not as embraced under, common carriers. It +will also be noticed in the cases before that time, that there is +no settled formula for the obligation in question, but that it is +set forth in each case that the defendant was answerable for what +he was said to have done or omitted in the particular instance. +/3/ + +[189] Returning now to the succession of the cases, Rich v. +Kneeland is the next in order (11 Jac. I., A.D. 1613). It was an +action on the case (tort), against a common hoyman. In Croke's +report nothing is said of custom; but the declaration avers that +the defendant was a common bargeman, that the plaintiff delivered +him a portmanteau, &c. to carry, and paid him for it, and that +the defendant tam negligenter custodivit, that it was taken from +him by persons unknown,--like the second count in Morse v. Slue, +below. The plea was demurred to, and adjudged for the plaintiff. +A writ of error being brought, it was assigned that "this action +lies not against a common bargeman without special promise. But +all the Justices and Barons held, that it well lies as against a +common carrier upon the land." If we follow this report, it seems +at the first glance that importance was attributed to the common +calling. But as the loss was clearly within the principle of +Southcote's Case, which required neither special promise nor +common calling for its application, and which remained +unquestioned law for three quarters of a century later, the court +must have referred to the form of action employed (case), and not +to the liability of the defendant in some form of action +(detinue). The objection was that "this action lies not," not +that the defendant not liable, "without special promise." Even +thus narrowed, it rather countenances the notion that allegations +which were necessary to charge a man for damage happening through +his neglect, in the more ancient and use of this action, were +also necessary in this new [190] extension of it to a different +class of wrongs. As it was now pretty clear that case would lie +for a nonfeasance, the notion was mistaken, and we shall see that +it was denied in subsequent decisions. /1/ + +According to Hobart's report, it was alleged that the defendant +was a common hoyman, to carry goods by water, for hire, &c., that +by the custom of England such carriers ought to keep the goods, +&c., so as they should not be lost by the default of them or +their servants, &c. "And it was resolved that, though it was laid +as a custom of the realm, yet indeed it is common law." This last +resolution may only mean that the custom of the realm and the +common law are the same thing, as had been said concerning +innkeepers long before. /2/ But the law as to innkeepers, which +was called the custom of the realm in the writ, had somewhat the +air of a special principle extending beyond the law of bailment, +inasmuch as their liability extended to goods within the inn, of +which they had not the custody, and the court may have meant to +make an antithesis between such a special principle and the +common law or general law of bailment governing the present case. + +Whatever doubts some of Croke's language might raise, standing +alone, the fact remains indisputable, that for nearly a century +from Woodlife's Case the liability of carriers for loss of goods, +whether the custom of the realm or the defendant's common calling +was alleged or not, was placed upon the authority and was +intended to be decided on the principle of Southcote's Case. + +[191] Symons v. Darknell 1 (4 Car. I., A.D. 1628) is precisely in +point. The declaration was, that, by the common law, every +lighterman ought so to manage his lighter that the goods carried +therein should not perish. "And although no promise laid, it +seemed to the court that the plaintiff should recover; and not +alleging that defendant was common lighterman was no harm. Hyde, +C. J., delivery makes the contract." This did not mean that +delivery was a good consideration for a promise; but, as was laid +down in Southcote's Case, that delivery, without a special +acceptance to keep only as one's own goods, bound the bailee to +keep safely, and therefore made it unnecessary to allege either +an assumpsit or the defendant's common calling. Whitlock, J. +called attention to the fact that the action was tort, not +contract. "Et en cest case... Southcote's Case fuit cite." + +The same rule is stated as to bailments in general, the same +year, by Sergeant Maynard arguendo in Williams v. Hide, /2/ again +citing Southcote's Case. + +In Kenrig v. Eggleston /3/ (24 Car. I., A.D. 1648), "case against +a country carrier for not delivering a box," &c., of which he was +robbed, nothing was said about custom, nor being a common +carrier, unless the above words imply that he was; but it was +laid down, as in Southcote's Case, that "it must come on the +carrier's part acceptance" if he would lessen his liability as +bailee. + +Nichols v. Moore /4/ (13 Car. II., A.D. 1661) was case against a +"water carrier," between Hull and London, laying a delivery to +him at York. It was moved in arrest of [192] judgment, that the +defendant did not undertake to carry the goods from York to Hull. +"But notwithstanding this per totam curiam, the defendant shall +be charged on his general receipt at York, according to +Southcote's Case." + +It is fair to mention that in Matthews v. Hopkins /1/ (17 Car. +II.)the declaration was on the custom of the realm against a +common carrier, and there was a motion in arrest of judgment, +because there was a misrecital of the custom of the realm, and +the defendant was not alleged to have been a carrier at the time +of the receipt, and also because counts in trover, and in case on +the custom, were joined. Judgment was arrested, it would seem on +the latter ground, but the court continued: "And, although the +declaration may be good without recital of the custom of the +realm, as Hobart says, still it is the better way to recite it." + +We now come to the great case of Morse v. Slue /2/ (23 & 24 Car. +II., A.D. 1671, 1672). This was an action against the master of a +ship lying in the river Thames, for the loss of goods intrusted +to him. The goods in question were taken away by robbers, and it +was found that the ship had the usual guard at the time. There +seem to have been two counts, one on the law and custom of +England (1 Vent. 190), for masters of ships "carefully to govern, +preserve, and defend goods shipped, so long as said ship should +remain in the river Thames" (2 Keb. 866); "to keep safely [goods +shipped to be carried from London beyond sea] without loss or +subtraction, ita quodpro defectu of them they may not come to any +damage" (1 Vent. 190); "to keep safely goods delivered to them to +carry, dangers [193] of the sea excepted" (2 Levinz, 69; the +exception last was perhaps drawn by the reporter from the usual +bills of lading referred to in argument). The second count, which +is usually overlooked, was a special count "on delivery and being +stolen by his neglect." /1/ + +The case was twice argued, and all the reports agree, as far as +they go, in their statements of the points insisted on. + +Holt, for the plaintiff, maintained: /2/ 1. That the master +receives goods generally, citing Southcote's Case, and that in +"only guardian in socage who hath the custody by law, who factor +who is servant at the master's dispose, and so cannot take care, +are exempt." 2. That the master has a reward for his keeping, and +is therefore a proper person to be sued. 3. That the master has a +remedy over, citing the case of the Marshal of the King's Bench. +/3/ That the mischief would be great if the master were not +liable, as merchants put their trust in him, and no particular +default be shown, as appears by the bill of lading, and, finally, +that neglect appeared. + +On the other side, it was urged that no neglect was found, and +that the master was only a servant; so that, if any one was +liable, the owners were. /4/ It was also suggested that, as there +would have been no liability if the goods had been taken at sea, +when the case would have within the admiralty law, it was absurd +that a different rule should govern the beginning of the voyage +from would have governed the rest of it. /5/ + +[194] On the second argument, it was again maintained for the +plaintiff that the defendant was liable "at the common law on the +general bailment," citing Southcote's Case, and also that, by the +Roman and maritime law, he was liable as a public carrier and +master of a ship. + +The opinion of the court was delivered by Chief Justice Hale. It +was held that, the ship being within the body of the county, the +admiralty law did not apply; or, according to 1 Mod. 85, note a, +"the master could not avail himself of the rules of the civil +law, by which masters are not chargeable pro damno fatali"; that +the master was liable to an action because he took a reward; that +"he might have made a caution for himself, which he omitting and +taking in the goods generally, he shall answer for what happens." +/1/ The case of Kenrig v. Eggleston /2/ seems also to have been +referred to. It was further said that the master was rather an +officer than a servant, and in effect received his wages from the +merchant who paid freight. Finally, on the question of +negligence, that it was not sufficient to have the usual number +of men to guard the ship, but that it was neglect not to have +enough to guard the goods, unless in case of the common enemies, +citing the case of the Marshal, which it will be remembered was +merely the principle of Southcote's Case and the common law of +bailment in another form. /3/ + +It will be observed that this case did not go on any special +custom, either as to common carriers or shipmasters, but that all +the arguments and the opinion of the court assumed that, if the +case was to be governed by the common law, and not by the milder +provisions of the civil [195] law relied on for the defence, and +if the defendant could be regarded as a bailee, and not merely a +servant of the owners, then the general law of bailment would +apply, and the defendant would be charged, as in Southcote's +Case, "by his general acceptance." + +It can hardly be supposed, however, that so enlightened a judge +as Sir Matthew Hale would not have broken away the Year Books, if +a case had arisen before him where property had been received as +a pure favor to the plaintiff, without consideration or reward, +and was taken from the defendant by robbery. Such a case was +tried before Chief Justice Pemberton, and he very sensibly ruled +that no action lay, declining to follow the law of Lord Coke's +time to such extreme results /1/ (33 Car. II., A.D. 1681). + +About the same time, the defendant's common calling began to +assume a new importance. The more important alternative +allegation, the assumpsit, had the effect in the end of +introducing the not intrinsically objectionable doctrine that all +duties arising from a bailment are founded on contract. /2/ But +this allegation, having now a special action to which it had +given rise, was not much used where the action was tort, while +the other averment occurs with increasing frequency. The notion +was evidently gaining ground that the liability of common +carriers for loss of [196] goods, whatever the cause of the loss +might be, arose from a special principle peculiar to them, and +not applicable to bailees in general. The confusion of +independent duties which has been explained, and of which the +first trace was seen in Rich v. Kneeland, was soon to become +complete. /1/ Holt became Chief Justice. Three of the cases in +the last note were rulings of his. In Lane v. Cotton /2/ (13 +Will. III., A.D. 1701), he showed his disapproval of Southcote's +Case, and his impression that the common law of bailment was +borrowed from Rome. The overthrow of Southcote's Case and the old +common law may be said to date from Coggs v. Bernard /3/ (2 Anne, +A.D. 1703). Lord Holt's famous opinion in the latter case quotes +largely from the Roman law as it filtered to him through Bracton; +but, whatever influence that may have had upon his general views, +the point decided and the distinctions touching common carriers +were of English growth. + +The action did not sound in contract. The cause was for damage to +the goods, and the plaintiff sued for a tort, laying an assumpsit +by way of inducement to a charge of negligence, as in the days of +Henry VI. The plea was not guilty. But after verdict for the +plaintiff, there was a motion in arrest of judgment, "for that it +was not alleged in the declaration that the defendant was a +common porter, nor averred that he had anything for his pains." +Consideration was never alleged or thought of in the primitive +assumpsit, but in the modern action of contract in that form [197] +it was required. Hence, it was inferred that, wherever an +assumpsit was laid, even in all action of tort for damage to +property, it was the allegation of a contract, and that a +consideration must be shown for the undertaking, although the +contrary had been decided in the reign of Queen Elizabeth. /1/ +But the motion did not prevail, and judgment was given for the +plaintiff. Lord Holt was well aware that the use of an assumpsit +was not confined to contract. It is true that he said, "The +owner's trusting [the defendant] with the goods is a sufficient +consideration to oblige him to a careful management," or to +return them; but this means as distinguished from a consideration +sufficient to oblige him to carry them, which he thought the +defendant would not have been bound to do. He then expressly +says, "This is a different case, for assumpsit does not only +signify a future agreement, but, in such cases as this, it +signifies an actual entry upon the thing and taking the trust +upon himself"; following the earlier cases in the Year Books. /2/ +This was enough for the decision, and the rule in Southcote's +Case had nothing to do with the matter. But as the duty of common +carriers by reason of their calling was now supposed to extend to +all kinds of losses, and the doctrine of Southcote's Case was +probably supposed to extend to many kinds of damage, it became +necessary, in a general discussion, to reconcile or elect between +the two principles. + +The Chief Justice therefore proceeded to distinguish between +[198] bailees for reward exercising a public employment, such as +common carriers, common hoymen, masters of ships, &c., and other +bailees; denied the rule in Southcote's Case as to the latter; +said that the principle of strict responsibility was confined to +the former class, and was applied to them on grounds of public +policy, and that factors were exonerated, not because they were +mere servants, as had always been laid down (among others, by +himself in arguing Morse v. Slue), but because they were not +within the reason of the rule. + +The reader who has followed the argument so far, will hardly need +to be convinced that this did not mean the adoption of the +Praetor's Edict. There is further evidence at hand if required. + +In the first place, as we have seen, there was a century of +precedents ending with Morse v. Slue, argued by Holt himself, in +which the liability of masters of ships, hoymen, carriers, &c. +had been adjudicated. Morse v. Slue is cited and relied on, and +there is no hint of dissatisfaction with the other cases. On the +contrary, they furnished the examples of bailees for reward +exercising a public calling. The distinction between bailees for +reward and others is Chief Justice Popham's; the latter +qualification (exercising a public calling) was also English, as +has partly appeared already, and as will be explained further on. + +In the next place, the strict rule is not confined to nautae, +caupones, and stabularii, nor even to common carriers; but is +applied to all bailees for reward, exercising a public calling. + +In the next place, the degree of responsibility is precisely that +of bailees in general, as worked out by the previous decisions; +but quite unlike and much more severe [199] than that imposed by +the Roman law, as others have observed. /1/ + +And, finally, the exemption from liability for acts of God or the +public enemy is characteristically English, as will be proved +further on. + +But it has been partially shown in this Lecture that the law of +to-day has made the carrier's burden heavier than it was in the +time of the Year Books. Southcote's Case, and the earlier +authorities which have been cited, all refer to a loss by +robbery, theft, or trespass, and hold the bailee liable, where, +in theory at least, he has a remedy over. It was with reference +to such cases, as has been seen, that the rule arose, although it +is not improbable that it would have been applied to an +unexplained loss; the writ against innkeepers reads absque +subtractionie seu amissione custodire. In later times, the +principle may have been extended from loss by theft to loss by +destruction. In Symons v. Darknoll /2/ (4 Car. I.), already cited +as decided on the authority of Southcote's Case, the goods were +spoiled, not stolen, and probably had not even perished in +specie. Before this time, the old rule had become an arbitrary +precedent, followed according to its form with little thought of +its true intent. + +The language of Coggs v. Bernard is, that "the law charges the +person thus intrusted to carry goods as against all events but +acts of God and the enemies of the king." This was adopted by +solemn decision in Lord Mansfield's time, and it is now settled +that the common carrier "is liable for all losses which do not +fall within the excepted [200] cases." /1/ That is to say, he has +become an insurer to that extent, not only against the +disappearance or destruction, but against all forms of damage to +the goods except as excepted above. + +The process by which this came to pass has been traced above, but +a few words may be added here. The Year Books, even in dealing +with the destruction (as distinguished from the conversion) of +chattels in the hands of a bailee, always state his liability as +based upon his fault, although it must be admitted that the +language is used alio intuitu. /2/ A jettison, in tempest, seems +to have been a good plea for a factor in the time of Edward III.; +/3/ but that cannot be relied on for an analogy. The argument +from the Marshal's case /4/ is stronger. There it appears to have +been thought that burning of the prison was as good an excuse for +an escape as a release by alien enemies. This must refer to an +accidental fire, and would seem to imply that he was not liable +in that event, if not in fault. The writs in the Register against +bailees to keep or carry goods, all have the general allegation +of negligence, and so do the older precedents of declarations, so +far as I have observed, whether stating the custom of the realm +or not. /5/ But a bailee was answerable for goods wrongfully +taken from him, as an innkeeper was for goods stolen from his +inn, irrespective of negligence. /6/ + +It is true that the Marshal's case speaks of his negligent [201] +keeping when the prisoners were released by rebels, (although +that was far less likely to result from negligence, one would +think, than a fire in the prison,) and that after Lord Coke's +time negligence was alleged, although the goods had been lost by +wrongful taking. So the writ against innkeepers is pro defectu +hujusmodi hospitatorum. In these instances, neglect only means a +failure de facto to keep safely. As was said at a much later +date, "everything is a negligence in a carrier or hoyman that the +law does not excuse." /1/ The allegation is simply the usual +allegation of actions on the case, and seems to have extended +itself from the earlier declarations for damage, when case +supplanted detinue and the use of the former action became +universal. It can hardly have been immaterial to the case for +which it was first introduced. But the short reason for +disbelieving that there was any warrant in the old law for making +the carrier an insurer against damage is, that there seem to be +no early cases in which bailees were held to such a +responsibility, and that it was not within the principle on which +they were made answerable for a loss by theft. + +Having traced the process by which a common carrier has been made +an insurer, it only remains to say a word upon the origin of the +admitted exceptions from the risk assumed. It has been seen +already how loss by the public enemy came to be mentioned by +Chief Justice Holt. It is the old distinction taken in the +Marshal's case that there the bailee has no remedy over. + +With regard to the act of God, it was a general principle, not +peculiar to carriers nor to bailees, that a duty was [202] +discharged if an act of God made it impossible of performance. +Lord Coke mentions the case of jettison from a Gravesend barge, +/1/ and another of a party bound to keep and maintain sea-walls +from overflowing, as subject to the same limitation, /2/ and a +similar statement as to contracts in general will be found in the +Year Books. /3/ It is another form of the principle which has +been laboriously reargued in our own day, that parties are +excused from the performance of a contract which has become +impossible before breach from the perishing of the thing, or from +change of circumstances the continued existence of which was the +foundation of the contract, provided there was no warranty and no +fault on the part of the contractor. Whether the act of God has +now acquired a special meaning with regard to common carriers may +be left for others to consider. + +It appears, from the foregoing evidence, that we cannot determine +what classes of bailees are subject to the strict responsibility +imposed on common carriers by referring to the Praetor's Edict +and then consulting the lexicons under Nautoe, Caupones, or +Stabularii. The question of precedent is simply to what extent +the old common law of bailment still survives. We can only answer +it by enumerating the decisions in which the old law is applied; +and we shall find it hard to bring them together under a general +principle. The rule in Southcote's Case has been done away with +for bailees in general: that is clear. But it is equally clear +that it has not maintained itself, even within the limits of the +public policy invented by Chief Justice [203] Holt. It is not +true to-day that all bailees for reward exercising a public +calling are insurers. No such doctrine is applied to +grain-elevators or deposit-vaults. /1/ + +How Lord Holt came to distinguish between bailees for reward and +others has been shown above. It is more pertinent here to notice +that his further qualification, exercising a public calling, was +part of a protective system which has passed away. One adversely +inclined might say that it was one of many signs that the law was +administered in the interest of the upper classes. It has been +shown above that if a man was a common farrier he could be +charged for negligence without an assumpsit. The same judge who +threw out that intimation established in another case that he +could be sued if he refused to shoe a horse on reasonable +request. /2/ Common carriers and common innkeepers were liable in +like case, and Lord Holt stated the principle: "If a man takes +upon him a public employment, he is bound to serve the public as +far as the employment extends, and for refusal an action lies." +/3/ An attempt to apply this doctrine generally at the present +day would be thought monstrous. But it formed part of a +consistent scheme for holding those who followed useful callings +up to the mark. Another part was the liability of persons +exercising a public employment for loss or damage, enhanced in +cases of bailment by what remained of the rule in Southcote's +Case. The scheme has given way to more liberal notions; but the +disjecta membra still move. + +Lord Mansfield stated his views of public policy in terms [204] +not unlike those used by Chief Justice Holt in Coggs v. Bernard, +but distinctly confines their application to common carriers. +"But there is a further degree of responsibility by the custom of +the realm, that is, by the common law; a carrier is in the nature +of an insurer.... To prevent litigation, collusion, and the +necessity of going into circumstances impossible to be +unravelled, the law presumes against the carrier, unless," &c. +/1/ + +At the present day it is assumed that the principle is thus +confined, and the discussion is transferred to the question who +are common carriers. It is thus conceded, by implication, that +Lord Holt's rule has been abandoned. But the trouble is, that +with it disappear not only the general system which we have seen +that Lord Holt entertained, but the special reasons repeated by +Lord Mansfield. Those reasons apply to other bailees as well as +to common carriers. Besides, hoymen and masters of ships were not +originally held because they were common carriers, and they were +all three treated as co-ordinate species, even in Coggs v. +Bernard, where they were mentioned only as so many instances of +bailees exercising a public calling. We do not get a new and +single principle by simply giving a single name to all the cases +to be accounted for. If there is a sound rule of public policy +which ought to impose a special responsibility upon common +carriers, as those words are now understood, and upon no others, +it has never yet been stated. If, on the other hand, there are +considerations which apply to a particular class among those so +designated,--for instance, to railroads, who may have a private +individual at their mercy, or exercise a power too vast for the +common welfare,--we do not prove that the [205] reasoning extends +to a general ship or a public cab by calling all three common +carriers. + +If there is no common rule of policy, and common carriers remain +a merely empirical exception from general doctrine, courts may +well hesitate to extend the significance of those words. +Furthermore, notions of public policy which would not leave +parties free to make their own bargains are somewhat discredited +in most departments of the law. /1/ Hence it may perhaps be +concluded that, if any new case should arise, the degree of +responsibility, and the validity and interpretation of any +contract of bailment that there may be, should stand open to +argument on general principles, and that the matter has been set +at large so far as early precedent is concerned. + +I have treated of the law of carriers at greater length than is +proportionate, because it seems to me an interesting example of +the way in which the common law has grown up, and, especially, +because it is an excellent illustration of the principles laid +down at the end of the first Lecture. I now proceed to the +discussion for the sake of which an account of the law of +bailment was introduced, and to which an understanding of that +part of the law is a necessary preliminary. + +[206] + + + + +LECTURE VI. -- POSSESSION. + +POSSESSION is a conception which is only less important than +contract. But the interest attaching to the theory of possession +does not stop with its practical importance in the body of +English law. The theory has fallen into the hands of the +philosophers, and with them has become a corner-stone of more +than one elaborate structure. It will be a service to sound +thinking to show that a far more civilized system than the Roman +is framed upon a plan which is irreconcilable with the a priori +doctrines of Kant and Hegel. Those doctrines are worked out in +careful correspondence with German views of Roman law. And most +of the speculative jurists of Germany, from Savigny to Ihering, +have been at once professors of Roman law, and profoundly +influenced if not controlled by some form of Kantian or +post-Kantian philosophy. Thus everything has combined to give a +special bent to German speculation, which deprives it of its +claim to universal authority. + +Why is possession protected by the law, when the possessor is not +also an owner? That is the general problem which has much +exercised the German mind. Kant, it is well known, was deeply +influenced in his opinions upon ethics and law by the +speculations of Rousseau. Kant, Rousseau, and the Massachusetts +Bill of Rights agree that all men are born free and equal, and +one or the other branch of that declaration has afforded the +answer to the [207] question why possession should be protected +from that day to this. Kant and Hegel start from freedom. The +freedom of the will, Kant said, is the essence of man. It is an +end in itself; it is that which needs no further explanation, +which is absolutely to be respected, and which it is the very end +and object of all government to realize and affirm. Possession is +to be protected because a man by taking possession of an object +has brought it within the sphere of his will. He has extended his +personality into or over that object. As Hegel would have said, +possession is the objective realization of free will. And by +Kant's postulate, the will of any individual thus manifested is +entitled to absolute respect from every other individual, and can +only be overcome or set aside by the universal will, that is, by +the state, acting through its organs, the courts. + +Savigny did not follow Kant on this point. He said that every act +of violence is unlawful, and seemed to consider protection of +possession a branch of protection to the person. /1/ But to this +it was answered that possession was protected against disturbance +by fraud as well as by force, and his view is discredited. Those +who have been contented with humble grounds of expediency seem to +have been few in number, and have recanted or are out of favor. + +The majority have followed in the direction pointed out by Kant. +Bruns, an admirable writer, expresses a characteristic yearning +of the German mind, when he demands an internal juristic +necessity drawn from the nature of possession itself, and +therefore rejects empirical reasons. /2/ He finds the necessity +he seeks in the freedom of the human will, which the whole legal +system does but recognize [208] and carry out. Constraint of it +is a wrong, which must be righted without regard to conformity of +the will to law, and so on in a Kantian vein. /1/ So Gans, a +favorite disciple of Hegel, "The will is of itself a substantial +thing to be protected, and this individual will has only to yield +to the higher common will." /2/ So Puchta, a great master, "The +will which wills itself, that is, the recognition of its own +personality, is to be protected." /3/ + +The chief variation from this view is that of Windscheid, a +writer now in vogue. He prefers the other branch of the +declaration in the Bill of Rights. He thinks that the protection +to possession stands on the same grounds as protection against +injuria, that every one is the equal of every other in the state, +and that no one shall raise himself over the other. /4/ Ihering, +to be sure, a man of genius, took an independent start, and said +that possession is ownership on the defensive; and that, in favor +of the owner, he who is exercising ownership in fact (i. e. the +possessor) is freed from the necessity of proving title against +one who is in an unlawful position. But to this it was well +answered by Bruns, in his later work, that it assumes the title +of disseisors to be generally worse than that of disseisees, +which cannot be taken for granted, and which probably is not true +in fact. /5/ + +It follows from the Kantian doctrine, that a man in possession is +to be confirmed and maintained in it until he is put out by an +action brought for the purpose. Perhaps [209] another fact +besides those which have been mentioned has influenced this +reasoning, and that is the accurate division between possessory +and petitory actions or defences in Continental procedure. /1/ +When a defendant in a possessory action is not allowed to set up +title in himself, a theorist readily finds a mystical importance +in possession. + +But when does a man become entitled to this absolute protection? +On the principle of Kant, it is not enough that he has the +custody of a thing. A protection based on the sacredness of man's +personality requires that the object should have been brought +within the sphere of that personality, that the free will should +have unrestrainedly set itself into that object. There must be +then an intent to appropriate it, that is, to make it part of +one's self, or one's own. + +Here the prevailing view of the Roman law comes in to fortify +principle with precedent. We are told that, of the many who might +have the actual charge or custody of a thing, the Roman law +recognized as possessor only the owner, or one holding as owner +and on his way to become one by lapse of time. In later days it +made a few exceptions on practical grounds. But beyond the +pledgee and the sequester (a receiver appointed by the court) +these exceptions are unimportant and disputed. /2/ Some of the +Roman jurists state in terms that depositaries and borrowers have +not possession of the things intrusted to them. /3/ Whether the +German interpretation of the sources goes too far or not, it must +be taken account of in the examination of German theories. + +[210] Philosophy by denying possession to bailees in general +cunningly adjusted itself to the Roman law, and thus put itself +in a position to claim the authority of that law for the theory +of which the mode of dealing with bailees was merely a corollary. +Hence I say that it is important to show that a far more +developed, more rational, and mightier body of law than the +Roman, gives no sanction to either premise or conclusion as held +by Kant and his successors. + +In the first place, the English law has always had the good sense +/1/ to allow title to be set up in defence to a possessory +action. In the assize of novel disseisin, which which was a true +possessory action, the defendant could always rely on his title. +/2/ Even when possession is taken or kept in a way which is +punished by the criminal law, as in case of forcible entry and +detainer, proof of title allows the defendant to retain it, and +in many cases has been held an answer to an action of trespass. +So in trespass for taking goods the defendant may set up title in +himself. There might seem to be a trace of the distinction in the +general rule, that the title cannot be tried in trespass quare +clausum. But this is an exception commonly put on the ground that +the judgment cannot change the property, as trespass for chattels +or trover can. /3/ The rule that you cannot go into title in a +possessory action presupposes great difficulty in the proof, the +probatio diabolica of the Canon law, delays in the process, and +importance of possession [211] ad interim,--all of which mark a +stage of society which has long been passed. In ninety-nine cases +out of a hundred, it is about as easy and cheap to prove at least +a prima facie title as it is to prove possession. + +In the next place, and this was the importance of the last +Lecture to this subject, the common law has always given the +possessory remedies to all bailees without exception. The right +to these remedies extends not only to pledgees, lessees, and +those having a lien, who exclude their bailor, but to simple +bailees, as they have been called, who have no interest in the +chattels, no right of detention as against the owner, and neither +give nor receive a reward. /1/ + +Modern German statutes have followed in the same path so far as +to give the possessory remedies to tenants and some others. Bruns +says, as the spirit of the Kantian theory required him to say, +that this is a sacrifice of principle to convenience. /2/ But I +cannot see what is left of a principle which avows itself +inconsistent with convenience and the actual course of +legislation. The first call of a theory of law is that it should +fit the facts. It must explain the observed course of +legislation. And as it is pretty certain that men will make laws +which seem to them convenient without troubling themselves very +much what principles are encountered by their legislation, a +principle which defies convenience is likely to wait some time +before it finds itself permanently realized. + +It remains, then, to seek for some ground for the protection of +possession outside the Bill of Rights or the Declaration of +Independence, which shall be consistent with the larger scope +given to the conception in modern law. + +[212] The courts have said but little on the subject. It was laid +down in one case that it was an extension of the protection which +the law throws around the person, and on that ground held that +trespass quare clausum did not pass to an assignee in bankruptcy. +/1/ So it has been said, that to deny a bankrupt trover against +strangers for goods coming to his possession after his bankruptcy +would be "an invitation to all the world to scramble for the +possession of them"; and reference was made to "grounds of policy +and convenience." /2/ I may also refer to the cases of capture, +some of which will be cited again. In the Greenland +whale-fishery, by the English custom, if the first striker lost +his hold on the fish, and it was then killed by another, the +first had no claim; but he had the whole if he kept fast to the +whale until it was struck by the other, although it then broke +from the first harpoon. By the custom in the Gallipagos, on the +other hand, the first striker had half the whale, although +control of the line was lost. /3/ Each of these customs has been +sustained and acted on by the English courts, and Judge Lowell +has decided in accordance with still a third, which gives the +whale to the vessel whose iron first remains in it, provided +claim be made before cutting in. /4/ The ground as put by Lord +Mansfield is simply that, were it not for such customs, there +must be a sort of warfare perpetually subsisting between the +adventurers. /5/ If courts adopt different rules on similar +facts, according to the point at which men will fight in the +[213] several cases, it tends, so far as it goes, to shake an a +priori theory of the matter. + +Those who see in the history of law the formal expression of the +development of society will be apt to think that the proximate +ground of law must be empirical, even when that ground is the +fact that a certain ideal or theory of government is generally +entertained. Law, being a practical thing, must found itself on +actual forces. It is quite enough, therefore, for the law, that +man, by an instinct which he shares with the domestic dog, and of +which the seal gives a most striking example, will not allow +himself to be dispossessed, either by force or fraud, of what he +holds, without trying to get it back again. /1/ Philosophy may +find a hundred reasons to justify the instinct, but it would be +totally immaterial if it should condemn it and bid us surrender +without a murmur. As long as the instinct remains, it will be +more comfortable for the law to satisfy it in an orderly manner, +than to leave people to themselves. If it should do otherwise, it +would become a matter for pedagogues, wholly devoid of reality. + +I think we are now in a position to begin the analysis of +possession. It will be instructive to say a word in the first +place upon a preliminary question which has been debated with +much zeal in Germany. Is possession a fact or a right? This +question must be taken to mean, by possession and right, what the +law means by those words, and not something else which +philosophers or moralists may mean by them; for as lawyers we +have nothing to do with either, except in a legal sense. If this +had always been borne steadily in mind, the question would hardly +have been asked. + +[214] A legal right is nothing but a permission to exercise +certain natural powers, and upon certain conditions to obtain +protection, restitution, or compensation by the aid of the public +force. Just so far as the aid of the public force is given a man, +he has a legal right, and this right is the same whether his +claim is founded in righteousness or iniquity. Just so far as +possession is protected, it is as much a source of legal rights +as ownership is when it secures the same protection. + +Every right is a consequence attached by the law to one or more +facts which the law defines, and wherever the law gives any one +special rights not shared by the body of the people, it does so +on the ground that certain special facts, not true of the rest of +the world, are true of him. When a group of facts thus singled +out by the law exists in the case of a given person, he is said +to be entitled to the corresponding rights; meaning, thereby, +that the law helps him to constrain his neighbors, or some of +them, in a way in which it would not, if all the facts in +question were not true of him. Hence, any word which denotes such +a group of facts connotes the rights attached to it by way of +legal consequences, and any word which denotes the rights +attached to a group of facts connotes the group of facts in like +manner. + +The word "possession" denotes such a group of facts. Hence, when +we say of a man that he has possession, we affirm directly that +all the facts of a certain group are true of him, and we convey +indirectly or by implication that the law will give him the +advantage of the situation. Contract, or property, or any other +substantive notion of the law, may be analyzed in the same way, +and should be treated in the same order. The only difference is, +that, [215] while possession denotes the facts and connotes the +consequence, property always, and contract with more uncertainty +and oscillation, denote the consequence and connote the facts. +When we say that a man owns a thing, we affirm directly that he +has the benefit of the consequences attached to a certain group +of facts, and, by implication, that the facts are true of him. +The important thing to grasp is, that each of these legal +compounds, possession, property, and contract, is to be analyzed +into fact and right, antecedent and consequent, in like manner as +every other. It is wholly immaterial that one element is accented +by one word, and the other by the other two. We are not studying +etymology, but law. There are always two things to be asked: +first, what are the facts which make up the group in question; +and then, what are the consequences attached by the law to that +group. The former generally offers the only difficulties. + +Hence, it is almost tautologous to say that the protection which +the law attaches by way of consequence to possession, is as truly +a right in a legal sense as those consequences which are attached +to adverse holding for the period of prescription, or to a +promise for value or under seal. If the statement is aided by +dramatic reinforcement, I may add that possessory rights pass by +descent or devise, as well as by conveyance, /1/ and that they +are taxed as property in some of the States. /2/ + +We are now ready to analyze possession as understood by the +common law. In order to discover the facts which constitute it, +it will be found best to study them at the moment when possession +is first gained. For then they must [216] all be present in the +same way that both consideration and promise must be present at +the moment of making a contract. But when we turn to the +continuance of possessory rights, or, as is commonly said, the +continuance of possession, it will be agreed by all schools that +less than all the facts required to call those rights into being +need continue presently true in order to keep them alive. + +To gain possession, then, a man must stand in a certain physical +relation to the object and to the rest of the world, and must +have a certain intent. These relations and this intent are the +facts of which we are in search. + +The physical relation to others is simply a relation of +manifested power coextensive with the intent, and will need to +have but little said about it when the nature of the intent is +settled. When I come to the latter, I shall not attempt a similar +analysis to that which has been pursued with regard to intent as +an element of liability. For the principles developed as to +intent in that connection have no relation to the present +subject, and any such analysis so far as it did not fail would be +little more than a discussion of evidence. The intent inquired +into here must be overtly manifested, perhaps, but all theories +of the grounds on which possession is protected would seem to +agree in leading to the requirement that it should be actual, +subject, of course, to the necessary limits of legal +investigation. + +But, besides our power and intent as towards our fellow-men, +there must be a certain degree of power over the object. If there +were only one other man in the world, and he was safe under lock +and key in jail, the person having the key would not possess the +swallows that flew over the prison. This element is illustrated +by cases of capture, [217] although no doubt the point at which +the line is drawn is affected by consideration of the degree of +power obtained as against other people, as well as by that which +has been gained over the object. The Roman and the common law +agree that, in general, fresh pursuit of wild animals does not +give the pursuer the rights of possession. Until escape has been +made impossible by some means, another may step in and kill or +catch and carry off the game if he can. Thus it has been held +that an action does not lie against a person for killing and +taking a fox which had been pursued by another, and was then +actually in the view of the person who had originally found, +started, and chased it. /1/ The Court of Queen's Bench even went +so far as to decide, notwithstanding a verdict the other way, +that when fish were nearly surrounded by a seine, with an opening +of seven fathoms between the ends, at which point boats were +stationed to frighten them from escaping, they were not reduced +to possession as against a stranger who rowed in through the +opening and helped himself. /2/ But the difference between the +power over the object which is sufficient for possession, and +that which is not, is clearly one of degree only, and the line +may be drawn at different places at different times on grounds +just referred to. Thus we are told that the legislature of New +York enacted, in 1844, that any one who started and pursued deer +in certain counties of that State should be deemed in possession +of the game so long as he continued in fresh pursuit of it, /3/ +and to that extent modified the New York decisions just cited. +So, while Justinian decided that a wild beast so [218] badly +wounded that it might easily be taken must be actually taken +before it belongs to the captors, /1/ Judge Lowell, with equal +reason, has upheld the contrary custom of the American whalemen +in the Arctic Ocean, mentioned above, which gives a whale to the +vessel whose iron first remains in it, provided claim be made +before cutting in. /2/ + +We may pass from the physical relation to the object with these +few examples, because it cannot often come into consideration +except in the case of living and wild things. And so we come to +the intent, which is the really troublesome matter. It is just +here that we find the German jurists unsatisfactory, for reasons +which I have already explained. The best known theories have been +framed as theories of the German interpretation of the Roman law, +under the influence of some form of Kantian or post-Kantian +philosophy. The type of Roman possession, according to German +opinion, was that of an owner, or of one on his way to become +owner. Following this out, it was said by Savigny, the only +writer on the subject with whom English readers are generally +acquainted, that the animus domini, or intent to deal with the +thing as owner, is in general necessary to turn a mere physical +detention into juridical possession. /3/ We need not stop to +inquire whether this modern form or the [Greek characters] +(animus dominantis, animus dominandi) of Theophilus /4/ and the +Greek sources is more exact; for either excludes, as the +civilians and canonists do, and as the [219] German theories +must, most bailees and termors from the list of possessors. /1/ + +The effect of this exclusion as interpreted by the Kantian +philosophy of law, has been to lead the German lawyers to +consider the intent necessary to possession as primarily +self-regarding. Their philosophy teaches them that a man's +physical power over an object is protected because he has the +will to make it his, and it has thus become a part of his very +self, the external manifestation of his freedom. /2/ The will of +the possessor being thus conceived as self-regarding, the intent +with which he must hold is pretty clear: he must hold for his own +benefit. Furthermore, the self-regarding intent must go to the +height of an intent to appropriate; for otherwise, it seems to be +implied, the object would not truly be brought under the +personality of the possessor. + +The grounds for rejecting the criteria of the Roman law have been +shown above. Let us begin afresh. Legal duties are logically +antecedent to legal rights. What may be their relation to moral +rights if there are any, and whether moral rights are not in like +manner logically the offspring of moral duties, are questions +which do not concern us here. These are for the philosopher, who +approaches the law from without as part of a larger series of +human manifestations. The business of the jurist is to make known +the content of the law; that is, to work upon it from within, or +logically, arranging and distributing it, in order, from its +stemmum genus to its infima species, so far as practicable. Legal +duties then come before legal [220] rights. To put it more +broadly, and avoid the word duty, which is open to objection, the +direct working of the law is to limit freedom of action or choice +on the part of a greater or less number of persons in certain +specified ways; while the power of removing or enforcing this +limitation which is generally confided to certain other private +persons, or, in other words, a right corresponding to the burden, +is not a necessary or universal correlative. Again, a large part +of the advantages enjoyed by one who has a right are not created +by the law. The law does not enable me to use or abuse this book +which lies before me. That is a physical power which I have +without the aid of the law. What the law does is simply to +prevent other men to a greater or less extent from interfering +with my use or abuse. And this analysis and example apply to the +case of possession, as well as to ownership. + +Such being the direct working of the law in the case of +possession, one would think that the animus or intent most nearly +parallel to its movement would be the intent of which we are in +search. If what the law does is to exclude others from +interfering with the object, it would seem that the intent which +the law should require is an intent to exclude others. I believe +that such an intent is all that the common law deems needful, and +that on principle no more should be required. + +It may be asked whether this is not simply the animus domini +looked at from the other side. If it were, it would nevertheless +be better to look at the front of the shield than at the reverse. +But it is not the same if we give to the animus domini the +meaning which the Germans give it, and which denies possession to +bailees in general. The intent to appropriate or deal with a +thing as owner can [221] hardly exist without an intent to +exclude others, and something more; but the latter may very well +be where there is no intent to hold as owner. A tenant for years +intends to exclude all persons, including the owner, until the +end of his term; yet he has not the animus domini in the sense +explained. Still less has a bailee with a lien, who does not even +mean to use, but only to detain the thing for payment. But, +further, the common law protects a bailee against strangers, when +it would not protect him against the owner, as in the case of a +deposit or other bailment terminable at pleasure; and we may +therefore say that the intent even to exclude need not be so +extensive as would be implied in the animus domini. If a bailee +intends to exclude strangers to the title, it is enough for +possession under our law, although he is perfectly ready to give +the thing up to its owner at any moment; while it is of the +essence of the German view that the intent must not be relative, +but an absolute, self-regarding intent to take the benefit of the +thing. Again, if the motives or wishes, and even the intentions, +most present to the mind of a possessor, were all self-regarding, +it would not follow that the intent toward others was not +the important thing in the analysis of the law. But, as we +have seen, a depositary is a true possessor under the common-law +theory, although his intent is not self-regarding, and he holds +solely for the benefit of the owner. + +There is a class of cases besides those of bailees and tenants, +which will probably, although not necessarily, be decided one way +or the other, as we adopt the test of an intent to exclude, or of +the animus domini. Bridges v. Hawkesworth /1/ will serve as a +starting-point. There, [222] a pocket-book was dropped on the +floor of a shop by a customer, and picked up by another customer +before the shopkeeper knew of it. Common-law judges and civilians +would agree that the finder got possession first, and so could +keep it as against the shopkeeper. For the shopkeeper, not +knowing of the thing, could not have the intent to appropriate +it, and, having invited the public to his shop, he could not have +the intent to exclude them from it. But suppose the pocket-book +had been dropped in a private room, how should the case be +decided? There can be no animus domini unless the thing is known +of; but an intent to exclude others from it may be contained in +the larger intent to exclude others from the place where it is, +without any knowledge of the object's existence. + +In McAvoy v. Medina, /1/ a pocket-book had been left upon a +barber's table, and it was held that the barber had a better +right than the finder. The opinion is rather obscure. It takes a +distinction between things voluntarily placed on a table and +things dropped on the floor, and may possibly go on the ground +that, when the owner leaves a thing in that way, there is an +implied request to the shopkeeper to guard it, which will give +him a better right than one who actually finds it before him. +This is rather strained, however, and the court perhaps thought +that the barber had possession as soon as the customer left the +shop. A little later, in a suit for a reward offered to the +finder of a pocket-book, brought by one who discovered it where +the owner had left it, on a desk for the use of customers in a +bank outside the teller's counter, the same court said that this +was not the finding of a lost article, and that "the occupants of +the banking house, and not [223] the plaintiff, were the proper +depositaries of an article so left." /1/ This language might +seem to imply that the plaintiff was not the person who got +possession first after the defendant, and that, although the +floor of a shop may be likened to a street, the public are to be +deemed excluded from the shop's desks, counters, and tables +except for the specific use permitted. Perhaps, however, the case +only decides that the pocket-book was not lost within the +condition of the offer. + +I should not have thought it safe to draw any conclusion from +wreck cases in England, which are mixed up with questions of +prescription and other rights. But the precise point seems to +have been adjudicated here. For it has been held that, if a stick +of timber comes ashore on a man's land, he thereby acquires a +"right of possession" as against an actual finder who enters for +the purpose of removing it. /2/ A right of possession is said to +be enough for trespass; but the court seems to have meant +possession by the phrase, inasmuch as Chief Justice Shaw states +the question to be which of the parties had "the preferable +claim, by mere naked possession, without other title," and as +there does not seem to have been any right of possession in the +case unless there was actual possession. + +In a criminal case, the property in iron taken from the bottom of +a canal by a stranger was held well laid in the canal company, +although it does not appear that the company knew of it, or had +any lien upon it. /3/ + +[224] The only intent concerning the thing discoverable in such +instances is the general intent which the occupant of land has to +exclude the public from the land, and thus, as a consequence, to +exclude them from what is upon it. + +The Roman lawyers would probably have decided all these cases +differently, although they cannot be supposed to have worked out +the refined theories which have been built upon their remains. +/1/ + +I may here return to the case of goods in a chest delivered under +lock and key, or in a bale, and the like. It is a rule of the +criminal law, that, if a bailee of such a chest or bale +wrongfully sells the entire chest or bale, he does not commit +larceny, but if he breaks bulk he does, because in the former +case he does not, and in the latter he does, commit a trespass. +/2/ The reason sometimes offered is, that, by breaking bulk, the +bailee determines the bailment, and that the goods at once revest +in the possession of the bailor. This is, perhaps, an +unnecessary, as well as inadequate fiction. /3/ The rule comes +from the Year Books, and the theory of the Year Books was, that, +although the chest was delivered to the bailee, the goods inside +of it were not, and this theory was applied to civil as well as +criminal cases. The bailor has the power and intent to exclude +the bailee from the goods, and therefore may be said to be in +possession of them as against the bailee. /4/ + +[225] On the other hand, a case in Rhode Island /1/ is against +the view here taken. A man bought a safe, and then, wishing to +sell it again, sent it to the defendant, and gave him leave to +keep his books in it until sold. The defendant found some +bank-notes stuck in a crevice of the safe, which coming to the +plaintiff's ears he demanded the safe and the money. The +defendant sent back the safe, but refused to give up the money, +and the court sustained him in his refusal. I venture to think +this decision wrong. Nor would my opinion be changed by assuming, +what the report does not make perfectly clear, that the defendant +received the safe as bailee, and not as servant or agent, and +that his permission to use the safe was general. The argument of +the court goes on the plaintiff's not being a finder. The +question is whether he need be. It is hard to believe that, if +the defendant had stolen the bills from the safe while it was in +the owner's hands, the property could not have been laid in the +safe-owner, /2/ or that the latter could not have maintained +trover for them if converted under those circumstances. Sir James +Stephen seems to have drawn a similar conclusion from Cartwright +v. Green and Merry v. Green; /3/ but I believe that no warrant +for it can be found in the cases, and still less for the reason +suggested. + +It will be understood, however, that Durfee v. Jones is perfectly +consistent with the view here maintained of the [226] general +nature of the necessary intent, and that it only touches the +subordinate question, whether the intent to exclude must be +directed to the specific thing, or may be even unconsciously +included in a larger intent, as I am inclined to believe. + +Thus far, nothing has been said with regard to the custody of +servants. It is a well-known doctrine of the criminal law, that a +servant who criminally converts property of his master intrusted +to him and in his custody as servant, is guilty of theft, because +he is deemed to have taken the property from his master's +possession. This is equivalent to saying that a servant, having +the custody of his master's property as servant, has not +possession of that property, and it is so stated in the Year +Books. /1/ + +The anomalous distinction according to which, if the servant +receives the thing from another person for his master, the +servant has the possession, and so cannot commit theft, /2/ is +made more rational by the old cases. For the distinction taken in +them is, that, while the servant is in the house or with his +master, the latter retains possession, but if he delivers his +horse to his servant to ride to market, or gives him a bag to +carry to London, then the thing is out of the master's possession +and in the servant's. /3/ In this more intelligible form, the +rule would not now prevail. But one half of it, that a guest at a +tavern has not possession of the plate with which he is served, +is no doubt still law, [227] for guests in general are likened to +servants in their legal position. /1/ + +There are few English decisions, outside the criminal on the +question whether a servant has possession. But the Year Books do +not suggest any difference between civil and criminal cases, and +there is an almost tradition of courts and approved writers that +he has not, in any case. A master has maintained trespass against +a servant for converting cloth which he was employed to sell, /2/ +and the American cases go the full length of the old doctrine. It +has often been remarked that a servant must be distinguished from +a bailee. + +But it may be asked how the denial of possession to servants can +be made to agree with the test proposed, and it will be said with +truth that the servant has as much the intent to exclude the +world at large as a borrower. The law of servants is +unquestionably at variance with that test; and there can be no +doubt that those who have built their theories upon the Roman law +have been led by this fact, coupled with the Roman doctrine as to +bailees in general, to seek the formula of reconciliation where +they have. But, in truth, the exception with regard to servants +stands on purely historical grounds. A servant is denied +possession, not from any peculiarity of intent with regard to the +things in his custody, either towards his master or other people, +by which he is distinguished [228] from a depositary, but simply +as one of the incidents of his status. It is familiar that the +status of a servant maintains many marks of the time when he was +a slave. The liability of the master for his torts is one +instance. The present is another. A slave's possession was his +owner's possession on the practical ground of the owner's power +over him, /1/ and from the fact that the slave had no standing +before the law. The notion that his personality was merged in +that of his family head survived the era of emancipation. + +I have shown in the first Lecture /2/ that agency arose out of +the earlier relation in the Roman law, through the extension pro +hac vice to a freeman of conceptions derived from that source. +The same is true, I think, of our own law, the later development +of which seems to have been largely under Roman influence. As +late as Blackstone, agents appear under the general head of +servants, and the first precedents cited for the peculiar law of +agents were cases of master and servant. Blackstone's language is +worth quoting: "There is yet a fourth species of servants, if +they may be so called, being rather in a superior, a ministerial +capacity; such as stewards, factors, and bailiffs: whom, however, +the law considers as servants pro tempore, with regard to such of +their acts as affect their master's or employer's property." /3/ + +[229] It is very true that in modern times many of the effects of +either relation--master and servant or principal and agent--may +be accounted for as the result of acts done by the master +himself. If a man tells another to make a contract in his name, +or commands him to commit a tort, no special conception is needed +to explain why he is held; although even in such cases, where the +intermediate party was a freeman, the conclusion was not reached +until the law had become somewhat mature. But, if the title +Agency deserves to stand in the law at all, it must be because +some peculiar consequences are attached to the fact of the +relation. If the mere power to bind a principal to an authorized +contract were all, we might as well have a chapter on ink and +paper as on agents. But it is not all. Even in the domain of +contract, we find the striking doctrine that an undisclosed +principal has the rights as well as the obligations of a known +contractor,--that he can be sued, and, more remarkable, can sue +on his agent's contract. The first precedent cited for the +proposition that a promise to an agent may be laid as a promise +to the principal, is a case of master and servant. /1/ + +As my present object is only to show the meaning of the doctrine +of identification in its bearing upon the theory of possession, +it would be out of place to consider at any length how far that +doctrine must be invoked to explain the liability of principals +for their agents' torts, or whether a more reasonable rule +governs other cases than that applied where the actor has a +tolerably defined status as a [230] servant. I allow myself a few +words, because I shall not be able to return to the subject. + +If the liability of a master for the torts of his servant had +hitherto been recognized by the courts as the decaying remnant of +an obsolete institution, it would not be surprising to find it +confined to the cases settled by ancient precedent. But such has +not been the fact. It has been extended to new relations by +analogy, /1/ It exists where the principal does not stand in the +relation of paterfamilias to the actual wrong-doer. /2/ A man may +be held for another where the relation was of such a transitory +nature as to exclude the conception of status, as for the +negligence of another person's servant momentarily acting for the +defendant, or of a neighbor helping him as a volunteer; /3/ and, +so far as known, no principal has ever escaped on the ground of +the dignity of his agent's employment. /4/ The courts habitually +speak as if the same rules applied to brokers and other agents, +as to servants properly so called. /5/ Indeed, it [231] has been +laid down in terms, that the liability of employers is not +confined to the case of servants, /1/ although the usual cases +are, of course, those of menial servants, and the like, who could +not pay a large verdict. + +On the other hand, if the peculiar doctrines of agency are +anomalous, and form, as I believe, the vanishing point of the +servile status, it may well happen that common sense will refuse +to carry them out to their furthest applications. Such conflicts +between tradition and the instinct of justice we may see upon the +question of identifying a principal who knows the truth with an +agent who makes a false representation, in order to make out a +fraud, as in Cornfoot v. Fowke, /2/ or upon that as to the +liability of a principal for the frauds of his agent discussed in +many English cases. /3/ But, so long as the fiction which makes +the root of a master's liability is left alive, it is as hopeless +to reconcile the differences by logic as to square the circle. + +In an article in the American Law Review /4/ I referred [232] to +an expression of Godefroi with regard to agents; eadem est +persona domini et procuratoris. /1/ This notion of a fictitious +unity of person has been pronounced a darkening of counsel in a +recent useful work. /2/ But it receives the sanction of Sir Henry +Maine, /3/ and I believe that it must stand as expressing an +important aspect of the law, if, as I have tried to show, there +is no adequate and complete explanation of the modern law, except +by the survival in practice of rules which lost their true +meaning when the objects of them ceased to be slaves. There is no +trouble in understanding what is meant by saying that a slave has +no legal standing, but is absorbed in the family which his master +represents before the law. The meaning seems equally clear when +we say that a free servant, in his relations as such, is in many +respects likened by the law to a slave (not, of course, to his +own detriment as a freeman). The next step is simply that others +not servants in a general sense may be treated as if servants in +a particular connection. This is the progress of ideas as shown +us by history; and this is what is meant by saying that the +characteristic feature which justifies agency as a title of the +law is the absorption pro hac vice of the agent's legal +individuality in that of his principal. + +If this were carried out logically, it would follow that an agent +constituted to hold possession in his principal's name would not +be regarded as having the legal possession, or as entitled to +trespass. But, after what has been said, no opinion can be +expressed whether the law would go so far, unless it is shown by +precedent. /4/ The nature of the case [233] will be observed. It +is that of an agent constituted for the very point and purpose of +possession. A bailee may be an agent for some other purpose. A +free servant may be made a bailee. But the bailee holds in his +own as we say, following the Roman idiom, and the servant or +agent holding as such does not. + +It would hardly be worth while, if space allowed, to search the +books on this subject, because of the great confusion of language +to be found in them. It has been said, for instance, in this +connection, that a carrier is a servant; /1/ while nothing can be +clearer than that, while goods are in custody, they are in his +possession. /2/ So where goods remain in the custody of a vendor, +appropriation to the contract and acceptance have been confounded +with delivery. /3/ Our law has adopted the Roman doctrine, /4/ +that there may be a delivery, that is, a change of possession, by +a change in the character in which the vendor holds, but has not +always imitated the caution of the civilians with regard to what +amounts to such a change. /5/ Bailees are constantly spoken of as +if they were agents to possess,--a confusion made [234] easier by +the fact that they generally are agents for other purposes. Those +cases which attribute possession to a transferee of goods in the +hands of a middleman, /1/ without distinguishing whether the +middleman holds in his own name or the buyer's, are generally +right in the result, no doubt, but have added to the confusion of +thought upon the subject. + +German writers are a little apt to value a theory of possession +somewhat in proportion to the breadth of the distinction which it +draws between juridical possession and actual detention; but, +from the point of view taken here, it will be seen that the +grounds for denying possession and the possessory remedies to +servants and agents holding as such--if, indeed, the latter have +not those remedies--are merely historical, and that the general +theory can only take account of the denial as an anomaly. It will +also be perceived that the ground on which servants and +depositaries have been often likened to each other, namely, that +they both hold for the benefit of another and not for themselves, +is wholly without influence on our law, which has always treated +depositaries as having possession; and is not the true +explanation of the Roman doctrine, which did not decide either +case upon that ground, and which decided each for reasons +different from those on which it decided the other. + +It will now be easy to deal with the question of power as to +third persons. This is naturally a power coextensive with the +intent. But we must bear in mind that the law deals only or +mainly with manifested facts; and hence, when we speak of a power +to exclude others, we mean no more than a power which so appears +in its manifestation. [235] A ruffian may be within equal reach +and sight when a child picks up a pocket-book; but if he does +nothing, the child has manifested the needful power as well as if +it had been backed by a hundred policemen. Thus narrowed, it +might be suggested that the manifestation of is only important as +a manifestation of intent. But the two things are distinct, and +the former becomes decisive when there are two contemporaneous +and conflicting intents. Thus, where two parties, neither having +title, claimed a crop of corn adversely to each other, and +cultivated it alternately, and the plaintiff gathered and threw +it in small piles in the same field, where it lay for a week, and +then each party simultaneously began to carry it away, it was +held the plaintiff had not gained possession. /1/ But the first +interference of the defendant had been after the gathering into +piles, the plaintiff would probably have recovered. /2/ So where +trustees possessed of a schoolroom put in a schoolmaster, and he +was afterwards dismissed, but the next day (June 30) re-entered +by force; on the fourth of July he was required by notice to +depart, and was not ejected until the eleventh; it was considered +that the schoolmaster never got possession as against the +trustees. /3/ + +We are led, in this connection, to the subject of the continuance +of the rights acquired by gaining possession. To gain possession, +it has been seen, there must be certain physical relations, as +explained, and a certain intent. It remains to be inquired, how +far these facts must continue [236] to be presently true of a +person in order that he may keep the rights which follow from +their presence. The prevailing view is that of Savigny. He thinks +that there must be always the same animus as at the moment of +acquisition, and a constant power to reproduce at will the +original physical relations to the object. Every one agrees that +it is not necessary to have always a present power over the +thing, otherwise one could only possess what was under his hand. +But it is a question whether we cannot dispense with even more. +The facts which constitute possession are in their nature capable +of continuing presently true for a lifetime. Hence there has +arisen an ambiguity of language which has led to much confusion +of thought. We use the word "possession," indifferently, to +signify the presence of all the facts needful to gain it, and +also the condition of him who, although some of them no longer +exist, is still protected as if they did. Consequently it has +been only too easy to treat the cessation of the facts as the +loss of the right, as some German writers very nearly do. /1/ + +But it no more follows, from the single circumstance that certain +facts must concur in order to create the rights incident to +possession, that they must continue in order to keep those rights +alive, than it does, from the necessity of a consideration and a +promise to create a right ex contractu, that the consideration +and promise must continue moving between the parties until the +moment of performance. When certain facts have once been made +manifest which confer a right, there is no general ground on +which the law need hold the right at an end except the +manifestation of some fact inconsistent with its continuance, +[237] the reasons for conferring the particular right have great +weight in determining what facts shall be to be so. Cessation of +the original physical relations to the object might be treated as +such a fact; but it never has been, unless in times of more +ungoverned violence than the present. On the same principle, it +is only a question of tradition or policy whether a cessation of +the power to reproduce the original physical relations shall +affect the continuance of the rights. It does not stand on the +same ground as a new possession adversely taken by another. We +have adopted the Roman law as to animals ferae naturae, but the +general tendency of our law is to favor appropriation. It abhors +the absence of proprietary or possessory rights as a kind of +vacuum. Accordingly, it has been expressly decided, where a man +found logs afloat and moored them, but they again broke loose and +floated away, and were found by another, that the first finder +retained the rights which sprung from his having taken +possession, and that he could maintain trover against the second +finder, who refused to give them up. /1/ + +Suppose that a finder of a purse of gold has left it in his +country-house, which is lonely and slightly barred, and he is a +hundred miles away, in prison. The only person within twenty +miles is a thoroughly equipped burglar at his front door, who has +seen the purse through a window, and who intends forthwith to +enter and take it. The finder's power to reproduce his former +physical relation to the gold is rather limited, yet I believe +that no one would say that his possession was at an end until the +burglar, by an overt [238] act, had manifested his power and +intent to exclude others from the purse. The reason for this is +the same which has been put with regard to the power to exclude +at the moment of gaining possession. The law deals, for the most +part, with overt acts and facts which can be known by the senses. +So long as the burglar has not taken the purse, he has not +manifested his intent; and until he breaks through the barrier +which measures the present possessor's power of excluding him, he +has not manifested his power. It may be observed further, that, +according to the tests adopted in this Lecture, the owner of the +house has a present possession in the strictest sense, because, +although he has not the power which Savigny says is necessary, he +has the present intent and power to exclude others. + +It is conceivable that the common law should go so far as to deal +with possession in the same way as a title, and should hold that, +when it has once been acquired, rights are acquired which +continue to prevail against all the world but one, until +something has happened sufficient to divest ownership. + +The possession of rights, as it is called, has been a +fighting-ground for centuries on the Continent. It is not +uncommon for German writers to go so far as to maintain that +there may be a true possession of obligations; this seeming to +accord with a general view that possession and right are in +theory coextensive terms; that the mastery of the will over an +external object in general (be that object a thing or another +will), when in accord with the general will, and consequently +lawful, is called right, when merely de facto is possession. /1/ +Bearing in mind what was [239] said on the question whether +possession was a fact or right, it will be seen that such an +antithesis between possession and right cannot be admitted as a +legal distinction. The facts constituting possession generate +rights as truly as do the facts which constitute ownership, +although the rights a mere possessor are less extensive than +those of an owner. + +Conversely, rights spring from certain facts supposed to be true +of the person entitled to such rights. Where these facts are of +such a nature that they can be made successively true of +different persons, as in the case of the occupation of land, the +corresponding rights may be successively enjoyed. But when the +facts are past and gone, such as the giving of a consideration +and the receiving of a promise, there can be no claim to the +resulting rights set up by any one except the party of whom the +facts were originally true--in the case supposed, the original +contractee,--because no one but the original contractee can fill +the situation from which they spring. + +It will probably be granted by English readers, that one of the +essential constituent facts consists in a certain relation to a +material object. But this object may be a slave, as well as a +horse; /1/ and conceptions originated in this way may be extended +by a survival to free services. It is noticeable that even Bruns, +in the application of his theory, does not seem to go beyond +cases of status and those where, in common language, land is +bound for the services in question, as it is for rent. Free +services being [240] so far treated like servile, even by our +law, that the master has a right of property in them against all +the world, it is only a question of degree where the line shall +be drawn. It would be possible to hold that, as one might be in +possession of a slave without title, so one might have all the +rights of an owner in free services rendered without contract. +Perhaps there is something of that sort to be seen when a parent +recovers for the seduction of a daughter over twenty-one, +although there is no actual contract of service. /1/ So, +throughout the whole course of the canon law and in the early law +of England, rents were regarded as so far a part of the realty as +to be capable of possession and disseisin, and they could be +recovered like land by all assize. /2/ + +But the most important case of the so-called possession of rights +in our law, as in the Roman, occurs with regard to easements. An +easement is capable of possession in a certain sense. A man may +use land in a certain way, with the intent to exclude all others +from using it in any way inconsistent with his own use, but no +further. If this be true possession, however, it is a limited +possession of land, not of a right, as others have shown. But +where an easement has been actually created, whether by deed or +prescription, although it is undoubtedly true that any possessor +of the dominant estate would be protected in its enjoyment, it +has not been so protected in the past on the ground that the +easement was in itself an object of possession, but by the +survival of precedents explained in a later [241] Lecture. Hence, +to test the existence of a mere possession of this sort which the +law will protect, we will take the case of a way used de facto +for four years, but in which no easement has yet been acquired, +and ask whether the possessor of the quasi dominant tenement +would be protected in his use as against third persons. It is +conceivable that he should be, but I believe that he would not. +/2/ + +The chief objection to the doctrine seems to be, that there is +almost a contradiction between the assertions that one man has a +general power and intent to exclude the world from dealing with +the land, and that another has the power to use it in a +particular way, and to exclude the from interfering with that. +The reconciliation of the two needs somewhat artificial +reasoning. However, it should be borne in mind that the question +in every case is not what was the actual power of the parties +concerned, but what was their manifested power. If the latter +stood thus balanced, the law might recognize a kind of split +possession. But if it does not recognize it until a right is +acquired, then the protection of a disseisor in the use of an +easement must still be explained by a reference to the facts +mentioned in the Lecture referred to. + +The consequences attached to possession are substantially those +attached to ownership, subject to the question the continuance of +possessory rights which I have touched upon above. Even a +wrongful possessor of a [242] chattel may have full damages for +its conversion by a stranger to the title, or a return of the +specific thing. /1/ + +It has been supposed, to be sure, that a "special property" was +necessary in order to maintain replevin /2/ or trover. /3/ But +modern cases establish that possession is sufficient, and an +examination of the sources of our law proves that special +property did not mean anything more. It has been shown that the +procedure for the recovery of chattels lost against one's will, +described by Bracton, like its predecessor on the Continent, was +based upon possession. Yet Bracton, in the very passage in which +he expressly makes that statement, uses a phrase which, but for +the explanation, would seem to import ownership,--"Poterit rem +suam petere." /4/ The writs of later days used the same language, +and when it was objected, as it frequently was, to a suit by a +bailee for a taking of bona et catalla sua, that it should have +been for bona in custodia sua existentia, it was always answered +that those in the Chancery would not frame a writ in that form. +/5/ + +The substance of the matter was, that goods in a man's possession +were his (sua), within the meaning of the writ. But it was very +natural to attempt a formal reconciliation between that formal +word and the fact by saying that, although the plaintiff had not +the general property in the [243] chattels, yet he had a property +as against strangers, /1/ or a special property. This took place, +and, curiously enough, two of the earliest instances in which I +have found the latter phrase used are cases of a depositary, /2/ +and a borrower. /3/ Brooke says that a wrongful taker "has title +against all but the true owner." /4/ In this sense the special +property was better described as a "possessory property," as it +was, in deciding that, in an indictment for larceny, the property +could be laid in the bailee who suffered the trespass. /5/ + +I have explained the inversion by which a bailee's right of +action against third persons was supposed to stand on his +responsibility over, although in truth it was the foundation of +that responsibility, and arose simply from his possession. The +step was short, from saying that bailees could sue because they +were answerable over, /6/ to saying that they had the property as +against strangers, or a special property, because they were +answerable over, /7/ and that they could sue because they had a +special property and were answerable over. /8/ And thus the +notion that special property meant something more than +possession, and was a requisite to maintaining an action, got +into the law. + +The error was made easier by a different use of the phrase in a +different connection. A bailee was in general liable for goods +stolen from his custody, whether he had a lien or not. But the +law was otherwise as to a [244] pledgee, if he had kept the +pledge with his own goods, and the two were stolen together. /1/ +This distinction was accounted for, at least in Lord Coke's time, +by saying that the pledge was, in a sense, the pledgee's own, +that he had a special property in it, and thus that the ordinary +relation of bailment did not exist, or that the undertaking was +only to keep as his own goods. /2/ The same expression was used +in discussing the pledgee's right to assign the pledge, /3/ In +this sense the term applied only to pledges, but its significance +in a particular connection was easily carried over into the +others in which it was used, with the result that the special +property which was requisite to maintain the possessory actions +was supposed to mean a qualified interest in the goods. + +With regard to the legal consequences of possession, it only +remains to mention that the rules which have been laid down with +regard to chattels also prevail with regard to land. For although +the plaintiff in ejectment must recover on the strength of his +own title as against a defendant in possession, it is now settled +that prior possession is enough if the defendant stands on his +possession alone Possession is of course sufficient for +trespass.5 And although the early remedy by assize was restricted +to those who had a technical seisin, this was for reasons which +do not affect the general theory. + +Before closing I must say a word concerning ownership and kindred +conceptions. Following the order of analysis [245] which has been +pursued with regard to possession, the first question must be, +What are the facts to which the rights called ownership are +attached as a legal consequence? The most familiar mode of +gaining ownership is by conveyance from the previous owner. But +that presupposes ownership already existing, and the problem is +to discover what calls it into being. + +One fact which has this effect is first possession. The captor of +wild animals, or the taker of fish from the ocean, has not merely +possession, but a title good against all the world. But the most +common mode of getting an original and independent title is by +certain proceedings, in court or out of it, adverse to all the +world. At one extreme of these is the proceeding in rem of the +admiralty, which conclusively disposes of the property in its +power, and, when it sells or condemns it, does not deal with this +or that man's title, but gives a new title paramount to all +previous interests, whatsoever they may be. The other and more +familiar case is prescription, where a public adverse holding for +a certain time has a similar effect. A title by prescription is +not a presumed conveyance from this or owner alone, it +extinguishes all previous and inconsistent claims. The two +coalesce in the ancient fine with proclamations where the +combined effect of the judgment and the lapse of a year and a day +was to bar claims. /1/ + +So rights analogous to those of ownership may be given by the +legislature to persons of whom some other set of facts is true. +For instance, a patentee, or one to whom the government has +issued a certain instrument, and who in fact has made a +patentable invention. + +[246] But what are the rights of ownership? They are +substantially the same as those incident to possession. Within +the limits prescribed by policy, the owner is allowed to exercise +his natural powers over the subject-matter uninterfered with, and +is more or less protected in excluding other people from such +interference. The owner is allowed to exclude all, and is +accountable to no one. The possessor is allowed to exclude all +but one, and is accountable to no one but him. The great body of +questions which have made the subject of property so large and +important are questions of conveyancing, not necessarily or +generally dependent on ownership as distinguished from +possession. They are questions of the effect of not having an +independent and original title, but of coming in under a title +already in existence, or of the modes in which an original title +can be cut up among those who come in under it. These questions +will be dealt with and explained where they belong, in the +Lectures on Successions. + +[247] + + + + +LECTURE VII. -- CONTRACT.--I. HISTORY. + +The doctrine of contract has been so thoroughly remodelled to +meet the needs of modern times, that there is less here than +elsewhere for historical research. It has been so ably discussed +that there is less room here elsewhere for essentially new +analysis. But a short of the growth of modern doctrines, whether +necessary or not, will at least be interesting, while an analysis +of their main characteristics cannot be omitted, and may present +some new features. + +It is popularly supposed that the oldest forms of contract known +to our law are covenant and debt, and they are of early date, no +doubt. But there are other contracts still in use which, although +they have in some degree put on modern forms, at least suggest +the question whether they were not of equally early appearance. + +One of these, the promissory oath, is no longer the foundation of +any rights in private law. It is used, but as mainly as a +solemnity connected with entering upon a public office. The judge +swears that he will execute justice according to law, the juryman +that he will find his verdict according to law and the evidence, +the newly adopted citizen that he will bear true faith and +allegiance to the government of his choice. + +But there is another contract which plays a more important part. +It may, perhaps, sound paradoxical to mention [248] the contract +of suretyship. Suretyship, nowadays, is only an accessory +obligation, which presupposes a principal undertaking, and which, +so far as the nature of the contract goes, is just like any +other. But, as has been pointed out by Laferriere, /1/ and very +likely by earlier writers, the surety of ancient law was the +hostage, and the giving of hostages was by no means confined to +international dealings. + +In the old metrical romance of Huon of Bordeaux, Huon, having +killed the son of Charlemagne, is required by the Emperor to +perform various seeming impossibilities as the price of +forgiveness. Huon starts upon the task, leaving twelve of his +knights as hostages. /2/ He returns successful, but at first the +Emperor is made to believe that his orders have been disobeyed. +Thereupon Charlemagne cries out, "I summon hither the pledges for +Huon. I will hang them, and they shall have no ransom." /3/ So, +when Huon is to fight a duel, by way of establishing the truth or +falsehood of a charge against him, each party begins by producing +some of his friends as hostages. + +When hostages are given for a duel which is to determine the +truth or falsehood of an accusation, the transaction is very near +to the giving of similar security in the trial of a cause in +court. This was in fact the usual course of the Germanic +procedure. It will be remembered that the earliest appearance of +law was as a substitute for the private feuds between families or +clans. But while a defendant who did not peaceably submit to the +jurisdiction of the court might be put outside the protection of +the law, so that any man might kill him at sight, there was at +first [249] no way of securing the indemnity to which the +plaintiff was entitled unless the defendant chose to give such +security. /1/ + +English customs which have been preserved to us are somewhat more +advanced, but one of the noticeable features in their procedure +is the giving of security at every step. All lawyers will +remember a trace of this in the fiction of John Doe and Richard +Roe, the plaintiff's pledges to prosecute his action. But a more +significant example is found in the rule repeated in many of the +early laws, that a defendant accused of a wrong must either find +security or go to prison. /2/ This security was the hostage of +earlier days, and later, when the actions for punishment and for +redress were separated from each other, became the bail of the +criminal law. The liability was still conceived in the same way +as when the bail actually put his own body into the power of the +party secured. + +One of Charlemagne's additions to the Lex Salica speaks of a +freeman who has committed himself to the power of another by way +of surety. /3/ The very phrase is copied in the English laws of +Henry I. /4/ We have seen what this meant in the story of Huon of +Bordeaux. The Mirror of Justices /5/ says that King Canute used +to judge the mainprisors according as the principals when their +principals not in judgment, but that King Henry I. confined +Canute's rule to mainprisors who were consenting to the fact. + +As late as the reign of Edward III., Shard, an English judge, +after stating the law as it still is, that bail are a prisoner's +[250] keepers, and shall be charged if he escapes, observes, that +some say that the bail shall be hanged in his place. /1/ This was +the law in the analogous case of a jailer. /2/ The old notion is +to be traced in the form still given by modern writers for the +undertaking of bail for felony. They are bound "body for body," +/3/ and modern law-books find it necessary to state that this +does not make them liable to the punishment of the principal +offender if he does not appear, but only to a fine. /4/ The +contract also differed from our modern ideas in the mode of +execution. It was simply a solemn admission of liability in the +presence of the officer authorized to take it. The signature of +the bail was not necessary, /5/ and it was not requisite that the +person bailed should bind himself as a party. /6/ + +But these peculiarities have been modified or done away with by +statute, and I have dwelt upon the case, not so much as a special +form of contract differing from all others as because the history +of its origin shows one of the first appearances of contract in +our law. It is to be traced to the gradual increase of faith in +the honor of a hostage if the case calling for his surrender +should arrive, and to the consequent relaxation of actual +imprisonment. An illustration may be found in the parallel mode +of dealing with the prisoner himself. His bail, to whom his body +is supposed to be delivered, have a right to seize him at any +time and anywhere, but he is allowed to go at large until [251] +surrendered. It will be noticed that this form of contract, like +debt as dealt with by the Roman law of the Twelve Tables, and for +the same motive, although by a different process, looked to the +body of the contracting party as the satisfaction. + +Debt is another and more popular candidate for the honors of +priority. Since the time of Savigny, the first appearance of +contract both in Roman and German law has often been attributed +to the case of a sale by some accident remaining incomplete. The +question does not seem to be of great philosophical significance. +For to explain how mankind first learned to promise, we must go +to metaphysics, and find out how it ever came to frame a future +tense. The nature of the particular promise which was first +enforced in a given system can hardly lead to any truth of +general importance. But the history of the action of debt is +instructive, although in a humbler way. It is necessary to know +something about it in order to understand the enlightened rules +which make up the law of contract at the present time. + +In Glanvill's treatise the action of debt is found already to be +one of the well-known remedies. But the law of those days was +still in a somewhat primitive state, and it will easily be +imagined that a form of action which goes back as far as that was +not founded on any very delicate discriminations. It was, as I +shall try to show directly, simply the general form in which any +money claim was collected, except unliquidated claims for damages +by force, for which there was established the equally general +remedy of trespass. + +It has been thought that the action was adopted from the then +more civilized procedure of the Roman law. A [252] natural +opinion, seeing that all the early English law-writers adopt +their phraseology and classification from Rome. Still it seems +much more probable that the action is of pure German descent. It +has the features of the primitive procedure which is found upon +the Continent, as described by Laband. /1/ + +The substance of the plaintiff's claim as set forth in the writ +of debt is that the defendant owes him so much and wrongfully +withholds it. It does not matter, for a claim framed like that, +how the defendant's duty arises. It is not confined to contract. +It is satisfied if there is a duty to pay on any ground. It +states a mere conclusion of law, not the facts upon which that +conclusion is based, and from which the liability arises. The old +German complaint was, in like manner, "A owes me so much." + +It was characteristic of the German procedure that the defendant +could meet that complaint by answering, in an equally general +form, that he did not owe the plaintiff. The plaintiff had to do +more than simply allege a debt, if he would prevent the defendant +from escaping in that way. In England, if the plaintiff had not +something to show for his debt, the defendant's denial turned him +out of court; and even if he had, he was liable to be defeated by +the defendant's swearing with some of his friends to back him +that he owed nothing. The chief reason why debt was supplanted +for centuries by a later remedy, assumpsit, was the survival of +this relic of early days. + +Finally, in England as in Germany, debt for the detention of +money was the twin brother of the action brought for wrongfully +withholding any other kind of chattel. The gist of the complaint +in either case was the same. + +It seems strange that this crude product of the infancy of law +should have any importance for us at the present time. Yet +whenever we trace a leading doctrine of substantive law far +enough back, we are very likely to find some forgotten +circumstance of procedure at its source. Illustrations of this +truth have been given already. The action of debt and the other +actions of contract will furnish others. Debt throws most light +upon the doctrine of consideration. + +Our law does not enforce every promise which a man may make. +Promises made as ninety-nine promises out of a hundred are, by +word of mouth or simple writing, are not binding unless there is +a consideration for them. That is, as it is commonly explained, +unless the promisee has either conferred a benefit on the +promisor, or incurred a detriment, as the inducement to the +promise. + +It has been thought that this rule was borrowed from Roman law by +the Chancery, and, after undergoing some modification there, +passed into the common law. + +But this account of the matter is at least questionable. So far +as the use of words goes, I am not aware that consideration is +distinctly called cause before the reign of Elizabeth; in the +earlier reports it always appears as quid pro quo. Its first +appearance, so far as I know, is in Fleta's account of the action +of debt, /1/ and although I am inclined to believe that Fleta's +statement is not to be trusted, a careful consideration of the +chronological order of the cases in the Year Books will show, I +think, that the doctrine was fully developed in debt before any +mention of it in equity can be found. One of the earliest [254] +references to what a promisor was to have for his undertaking was +in the action of assumpsit. /1/ But the doctrine certainly did +not originate there. The first mention of consideration in +connection with equity which I have seen is in the form of quid +pro quo, /2/ and occurs after the requirement had been thoroughly +established in debt. /3/ + +The single fact that a consideration was never required for +contracts under seal, unless Fleta is to be trusted against the +great weight of nearly contemporaneous evidence, goes far to show +that the rule cannot have originated on grounds of policy as a +rule of substantive law. And conversely, the coincidence of the +doctrine with a peculiar mode of procedure points very strongly +to the probability that the peculiar requirement and the peculiar +procedure were connected. It will throw light on the question to +put together a few undisputed facts, and to consider what +consequences naturally followed. It will therefore be desirable +to examine the action of debt a little further. But it is only +fair to admit, at the outset, that I offer the explanation which +follows with great hesitation, and, I think, with a full +appreciation of the objections which might be urged. + +It was observed a moment ago, that, in order to recover against a +defendant who denied his debt, the plaintiff had to show +something for it; otherwise he was turned over to the limited +jurisdiction of the spiritual tribunals. /4/ This requirement did +not mean evidence in the modern sense. It meant simply that he +must maintain his cause in one of the ways then recognized by +law. These were three, the [255] duel, a writing, and witnesses. +The duel need not be discussed, as it soon ceased to be used in +debt, and has no bearing on what I have to say. Trial by writing +and by witnesses, on the other hand, must both be carefully +studied. It will be convenient to consider the latter first and +to find out what these witnesses were. + +One thing we know at the start; they were not witnesses as we +understand the term. They were not produced before a jury for +examination and cross-examination, nor did their testimony +depend for its effect on being believed by the court that heard +it. Nowadays, a case is not decided by the evidence, but by a +verdict, or a finding of facts, followed by a judgment. The oath +of a witness has no effect unless it is believed. But in the time +of Henry II. our trial by jury did not exist. When an oath was +allowed to be sworn it had the same effect, whether it was +believed or not. There was no provision for sifting it by a +second body. In those cases where a trial by witnesses was +possible, if the party called on to go forward could find a +certain number of men who were willing to swear in a certain +form, there was an end of the matter. + +Now this seems like a more primitive way of establishing a debt +than the production of the defendant's written acknowledgement, +and it is material to discover its origin. + +The cases in which this mode of trial was used appear from the +early books and reports to have been almost wholly confined to +claims arising out of a sale or loan. And the question at once +occurs, whether we are not upon traces of an institution which +was already ancient when Glanvill wrote. For centuries before the +Conquest Anglo-Saxon law /1/ had required the election of a +certain [256] number of official witnesses, two or three of whom +were to be called in to every bargain of sale. The object for +which these witnesses were established is not commonly supposed +to have been the proof of debts. They go back to a time when +theft and similar offences were the chief ground of litigation, +and the purpose for which they were appointed was to afford a +means of deciding whether a person charged with having stolen +property had come by it rightfully or not. A defendant could +clear himself of the felony by their oath that he had bought or +received the thing openly in the way appointed by law. + +Having been present at the bargain, the witnesses were able to +swear to what they had seen and heard, if any question arose +between the parties. Accordingly, their use was not confined to +disposing of a charge of felony. But that particular service +identifies the transaction witnesses of the Saxon period. Now we +know that the use of these witnesses did not at once disappear +under Norman influence. They are found with their old function in +the laws of William the Conqueror. /1/ The language of Glanvill +seems to prove that they were still known under Henry II. He says +that, if a purchaser cannot summon in the man from whom he +bought, to warrant the property to him and defend the suit, (for +if he does, the peril is shifted to the seller,) then if the +purchaser has sufficient proof of his having lawfully bought the +thing, de legittimo marcatu suo, it will clear him of felony. But +if he have not sufficient suit, he will be in danger. /2/ This is +the law of William over again. It follows that purchasers still +used the transaction witnesses. + +But Glanvill also seems to admit the use of witness to establish +debts. /1/ As the transaction witnesses were formerly available +for this purpose, I see no reason to doubt that they still were, +and that he is speaking of them here also. /2/ Moreover, for a +long time after Henry II., whenever an action was brought for a +debt of which there was no written evidence, the plaintiff, when +asked what he had to show for it, always answered "good suit," +and tendered his witnesses, who were sometimes examined by the +court. /3/ I think it is not straining the evidence to infer that +the "good suit" of the later reports was the descendant of the +Saxon transaction witnesses, as it has been shown that Glanvill's +secta was. /4/ + +Assuming this step in the argument to have been taken, it will be +well to recall again for a moment the original nature of the +witness oath. It was confined to facts within the witnesses' +knowledge by sight and hearing. But as the purposes for which +witnesses were provided only required their presence when +property changed hands, the principal case in which they could be +of service between the parties [258] to a bargain was when a debt +was claimed by reason of the delivery of property. The purpose +did not extend to agreements which were executory on both sides, +because there no question of theft could arise. And Glanvill +shows that in his time the King's Court did not enforce such +agreements. /1/ Now, if the oath of the secta could only be used +to establish a debt where the transaction witnesses could have +sworn, it will be seen, readily enough, how an accident of +procedure may have led to a most important rule of substantive +law. + +The rule that witnesses could only swear to facts within their +knowledge, coupled with the accident that these witnesses were +not used in transactions which might create a debt, except for a +particular fact, namely, the delivery of property, together with +the further accident that this delivery was quid pro quo, was +equivalent to the rule that, when a debt was proved by witnesses +there must be quid pro quo. But these debts proved by witnesses, +instead of by deed are what we call simple contract debts, and +thus beginning with debt, and subsequently extending itself to +other contracts, is established our peculiar and most important +doctrine that every simple contract must have a consideration. +This was never the law as to debts or contracts proved in the +usual way by the defendant's seal, and the fact that it applied +only to obligations which were formerly established by a +procedure of limited use, [259] goes far to show that the +connection with procedure was not accidental. + +The mode of proof soon changed, but as late as the reign of Queen +Elizabeth we find a trace of this original connection. It is +said, "But the common law requires that there should be a new +cause (i. e. consideration), whereof the country may have +intelligence or knowledge for the trial of it, if need be, so +that it is necessary for the Public-weal." /1/ Lord Mansfield +showed his intuition of the historical grounds of our law when he +said, "I take it that the ancient notion about the want of +consideration was for the sake of evidence only; for when it is +reduced into writing, as in covenants, specialties, bonds, etc., +there was no objection to the want of consideration." /2/ + +If it should be objected that the preceding argument is +necessarily confined to debt, whereas the requirement of +consideration applies equally to all simple contracts, the answer +is, that in all probability the rule originated with debt, and +spread from debt to other contracts. + +But, again, it may be asked whether there were no other contracts +proved by witness except those which have been mentioned. Were +there no contracts proved in that way to which the accidental +consideration was wanting? To this also there is an easy answer. +The contracts enforced by the civil courts, even as late as Henry +II., were few and simple. The witness procedure was no doubt +broad enough for all the contracts which were made in early +times. Besides those of sale, loan, and the like, which have been +mentioned, I find but two contractual [260] obligations. These +were the warranties accompanying a sale and suretyship which was +referred to at the beginning of the Lecture. Of the former, +warranty of title was rather regarded as an obligation raised by +the law out of the relation of buyer and seller than as a +contract. Other express warranties were matters within the +knowledge of the transaction witnesses, and were sworn to by them +in Saxon times. /1/ + +But in the Norman period warranty is very little heard of, except +with regard to land, and then it was decided by the duel. It so +wholly disappeared, except where it was embodied in a deed, that +it can have had no influence upon the law of consideration. I +shall therefore assume, without more detail, that it does not +bear upon the case. + +Then as to the pledge or surety. He no longer paid with his body, +unless in very exceptional cases, but his liability was +translated into money, and enforced in an action of debt. This +time-honored contract, like the other debts of Glanvill's time, +could be established by witness without a writing, /2/ and in +this case there was not such a consideration, such a benefit to +the promisor, as the law required when the doctrine was first +enunciated. But this also is unimportant, because his liability +on the oath of witness came to an end, as well as that of the +warrantor, before the foundations were laid for the rule which I +am seeking to explain. A writing soon came to be required, as +will be seen in a moment. + +The result so far is, that the only action of contract in +Glanvill's time was debt, that the only debts recovered [261] +without writing were those which have been described, and that +the only one of these for which there was not quid pro quo ceased +to be recoverable in that way by the reign of Edward III. + +But great changes were beginning in the reign of Henry II. More +various and complex contracts soon came to be enforced. It may be +asked, Why was not the scope of the witness oath enlarged, or, if +any better proof were forthcoming, why was not the secta done +away with, and other oral testimony admitted? In any event, what +can the law of Henry II.'s time have to do with consideration, +which not heard of until centuries later? + +It is manifest that a witness oath, which disposes of a case by +the simple fact that it is sworn, is not a satisfactory mode of +proof. A written admission of debt produced in court, and +sufficiently identified as issuing from the defendant, is +obviously much better. The only weak point about a writing is the +means of identifying it as the defendant's, and this difficulty +disappeared as soon as the use of seals became common. This had +more or less taken place in Glanvill's time, and then all that a +party had to do was to produce the writing and satisfy the court +by inspection that the impression on the wax fitted his +opponent's seal. /1/ The oath of the secta could always be +successfully met by wager of law, /2/ that is, by a counter oath +the part of the defendant, with the same or double the number of +fellow-swearers produced by the plaintiff. But a writing proved +to be the defendant's could not be contradicted. [262] /1/ For if +a man said he was bound, he was bound. There was no question of +consideration, because there was as yet no such doctrine. He was +equally bound if he acknowledged all obligation in any place +having a record, such as the superior courts, by which his +acknowledgment could be proved. Indeed, to this day some +securities are taken simply by an oral admission before the clerk +of a court noted by him in his papers. The advantage of the +writing was not only that it furnished better proof in the old +cases, but also that it made it possible to enforce obligations +for which there would otherwise have been no proof at all. + +What has been said sufficiently explains the preference of proof +by writing to proof by the old-fashioned witness oath. But there +were other equally good reasons why the latter should not be +extended beyond its ancient limits. The transaction witnesses +were losing their statutory and official character. Already in +Glanvill's time the usual modes of proving a debt were by the +duel or by writing. /2/ A hundred years later Bracton shows that +the secta had degenerated to the retainers and household of the +party, and he says that their oath raises but a slight +presumption. /3/ + +Moreover, a new mode of trial was growing up, which, although it +was not made use of in these cases /4/ for a good while, must +have tended to diminish the estimate set on the witness oath by +contrast. This was the beginning of our trial by jury. It was at +first an inquest of the neighbors [263] most likely to know about +a disputed matter of fact. They spoke from their own knowledge, +but they were selected by an officer of the court instead of by +the interested party, and were intended to be impartial. /1/ Soon +witnesses were summoned before them, not, as of old, to the case +by their oath, but to aid the inquest to find a verdict by their +testimony. With the advent of this enlightened procedure, the +secta soon ceased to decide the case, and it may well be asked +why it did not disappear and leave no traces. + +Taking into account the conservatism of the English law, and the +fact that, before deeds came in, the only debts for which there +had been a remedy were debts proved by the transaction witnesses, +it would not have been a surprise to find the tender of suit +persisting in those cases. But there was another reason still +more imperative. The defence in debt where there was no deed was +by wager of law. /2/ A section of Magna Charta was interpreted to +prohibit a man's being put to his law on the plaintiff's own +statement without good witness. /3/ Hence, the statute required +witness--that is, the secta--in every case of debt where the +plaintiff did not rely upon a writing. Thus it happened that suit +continued to be tendered in those cases where it had been of old, +/4/ and as the defendant, if he did not admit the debt in such +cases, always waged his law, it was long before the inquest got +much foothold. + +To establish a debt which arose merely by way of promise or +acknowledgment, and for which there had formerly [264] been no +mode of trial provided, you must have a writing, the new form of +proof which introduced it into the law. The rule was laid down, +"by parol the party is not obliged." /1/ But the old debts were +not conceived of as raised by a promise. /2/ They were a "duty" +springing from the plaintiff's receipt of property, a fact which +could be seen and sworn to. In these cases the old law maintained +and even extended itself a little by strict analogy. + +But the undertaking of a surety, in whatever form it was clothed, +did not really arise out of any such fact. It had become of the +same nature as other promises, and it was soon doubted whether it +should not be proved by the same evidence. /3/ By the reign of +Edward III., it was settled that a deed was necessary, /4/ except +where the customs of particular cities had kept the old law in +force. /5/ + +This reign may be taken as representing the time when the +divisions and rules of procedure were established which have +lasted until the present day. It is therefore worth while to +repeat and sum up the condition of the law at that time. + +It was still necessary that the secta should be tendered in every +action of debt for which no writing was produced. For this, as +well as for the other reasons which have been mentioned, the +sphere of such actions was not materially enlarged beyond those +cases which had formerly been established by the witness-oath. +As suretyship was no [265] longer one of these, they became +strictly limited to cases in which the debt arose from the +receipt of a quid pro quo. Moreover there was no other action of +contract which could be maintained without a writing. New species +of contracts were now enforced by an action of covenant, but +there a deed was always necessary. At the same time the secta had +shrunk to a form, although it was still argued that its function +was more important in contract than elsewhere. It could no longer +be examined before the court. /1/ It was a mere survival, and the +transaction witness had ceased to be an institution. Hence, the +necessity of tendering the witness oath did not fix the limit of +debt upon simple contract except by tradition, and it is not +surprising to find that the action was slightly extended by +analogy from its scope in Glanvill's time. + +But debt remained substantially at the point which I have +indicated, and no new action available for simple contracts was +introduced for a century. In the mean time the inversion which I +have explained took place, and what was an accident of procedure +had become a doctrine of substantive law. The change was easy +when the debts which could be enforced without deed all sprung +from a benefit to the debtor. + +The influence of the Roman law, no doubt, aided in bringing about +this result. It will be remembered that in the reign of Henry II. +most simple contracts and debts for which there was not the +evidence of deed or witness were left to be enforced by the +ecclesiastical courts, so far as their jurisdiction extended. /2/ +Perhaps it was this circumstance [266] which led Glanvill and his +successors to apply the terminology of the civilians to +common-law debts. But whether he borrowed it from the +ecclesiastical courts, or went directly to the fountain-head, +certain it is that Glanvill makes use of the classification and +technical language of the Corpus Juris throughout his tenth book. + +There were certain special contracts in the Roman system called +real, which bound the contractor either to return a certain thing +put into his hands by the contractee, as in a case of lease or +loan, or to deliver other articles of the same kind, as when +grain, oil, or money was lent. This class did not correspond, +except in the most superficial way, with the common-law debts. +But Glanvill adopted the nomenclature, and later writers began to +draw conclusions from it. The author of Fleta, a writer by no +means always intelligent in following and adopting his +predecessors' use of the Roman law, /1/ says that to raise a debt +there must be not only a certain thing promised, but a certain +thing promised in return. /2/ + +If Fleta had confined his statement to debts by simple contract, +it might well have been suggested by the existing state of the +law. But as he also required a writing and a seal, in addition to +the matter given or promised in return, the doctrine laid down by +him can hardly have prevailed at any time. It was probably +nothing more than a slight vagary of reasoning based upon the +Roman elements which he borrowed from Bracton. + +[267] It only remains to trace the gradual appearance of +consideration in the decisions. A case of the reign of Edward +III. /1/ seems to distinguish between a parol obligation founded +on voluntary payments by the obligee and one founded on a payment +at the obligor's request. It also speaks of the debt or "duty" in +that case as arising by cause of payments. Somewhat similar +language is used in the next reign. /2/ So, in the twelfth year +of Henry IV., /3/ there is an approach to the thought: "If money +is promised to a man for making a release, and he makes the +release, he will have a good action of debt in the matter." In +the next reign /4/ it was decided that, in such a case, the +plaintiff could not recover without having executed the release, +which is explained by the editor on the ground that ex nudo pacto +non oritur actio. But the most important fact is, that from +Edward I. to Henry VI. we find no case where a debt was +recovered, unless a consideration had in fact been received. + +Another fact to be noticed is, that since Edward III. debts +arising from a transaction without writing are said to arise from +contract, as distinguished from debts arising from an obligation. +/5/ Hence, when consideration was required as such, it was +required in contracts not under seal, whether debts or not. Under +Henry VI. quid pro quo became a necessity in all such contracts. +In the third year of that reign /6/ it was objected to au action +upon an [268] assumpsit for not building a mill, that it was not +shown what the defendant was to have for doing it. In the +thirty-sixth year of the same reign (A.D. 1459), the doctrine +appears full grown, and is assumed to be familiar. /1/ + +The case turned upon a question which was debated for centuries +before it was settled, whether debt would lie for a sum of money +promised by the defendant to the plaintiff if he would marry the +defendant's daughter. But whereas formerly the debate had been +whether the promise was not so far incident to the marriage that +it belonged exclusively to the jurisdiction of the spiritual +courts, it now touched the purely mundane doubt whether the +defendant had had quid pro quo. + +It will be remembered that the fact formerly sworn to by the +transaction witnesses was a benefit to the defendant, namely, a +delivery of the things sold or the money lent to him. Such cases, +also, offer the most obvious form of consideration. The natural +question is, what the promisor was to have for his promise. /2/ +It is only by analysis that the supposed policy of the law is +seen to be equally satisfied by a detriment incurred by the +promisee. It therefore not unnaturally happened that the judges, +when they first laid down the law that there must be quid pro +quo, were slow to recognize a detriment to the contractee as +satisfying the requirement which had been laid down. In the case +which I have mentioned some of the judges were inclined to hold +that getting rid of his daughter was a sufficient benefit to the +defendant to make him a debtor for the money which he promised; +and there was even some hint of the opinion, that marrying the +lady was a [269] consideration, because it was a detriment to the +promisee. /1/ But the other opinion prevailed, at least for a +time, because the defendant had had nothing from the plaintiff to +raise a debt. /2/ + +So it was held that a service rendered to a third person upon the +defendant's request and promise of a reward would not be enough, +/3/ although not without strong opinions to the contrary, and for +a time the precedents were settled. It became established law +that an action of debt would only lie upon a consideration +actually received by and enuring to the benefit of the debtor. + +It was, however, no peculiarity of either the action or contract +of debt which led to this view, but the imperfectly developed +theory of consideration prevailing between the reigns of Henry +VI. and Elizabeth. The theory the same in assumpsit, /4/ and in +equity. /5/ Wherever consideration was mentioned, it was always +as quid pro quo, as what the contractor was to have for his +contract. + +Moreover, before consideration was ever heard of, debt was the +time-honored remedy on every obligation to pay money enforced by +law, except the liability to damages for a wrong. /6/ It has been +shown already that a surety could be sued in debt until the time +of Edward III. without a writing, yet a surety receives no +benefit from the dealing with his principal. For instance, if a +man sells corn to A, [270] and B says, "I will pay if A does +not," the sale does B no good so far as appears by the terms of +the bargain. For this reason, debt cannot now be maintained +against a surety in such a case. + +It was not always so. It is not so to this day if there is an +obligation under seal. In that case, it does not matter how the +obligation arose, or whether there was any consideration for it +or not. But a writing was a more general way of establishing a +debt in Glanvill's time than witness, and it is absurd to +determine the scope of the action by considering only a single +class of debts enforced by it. Moreover, a writing for a long +time was only another, although more conclusive, mode of proof. +The foundation of the action was the same, however it was proved. +This was a duty or "duity" /1/ to the plaintiff, in other words, +that money was due him, no matter how, as any one may see by +reading the earlier Year Books. Hence it was, that debt lay +equally upon a judgment, /2/ which established such a duty by +matter of record, or upon the defendant's admission recorded in +like manner. /3/ + +To sum up, the action of debt has passed through three stages. At +first, it was the only remedy to recover money due, except when +the liability was simply to pay damages for a wrongful act. It +was closely akin to--indeed it was but a branch of--the action +for any form of personal property which the defendant was bound +by contract or otherwise to hand over to the plaintiff. /4/ If +there was a contract to pay money, the only question was how you +[271] could prove it. Any such contract, which could be proved by +any of the means known to early law, constituted a debt. There +was no theory of consideration, and therefore, of course, no +limit to either the action or the contract based upon the nature +of the consideration received. + +The second stage was when the doctrine of consideration was +introduced in its earlier form of a benefit to the promisor. This +applied to all contracts not under seal while it prevailed, but +it was established while debt was the only action for money +payable by such contracts. The precedents are, for the most part, +precedents in debt. + +The third stage was reached when a larger view was taken of +consideration, and it was expressed in terms of detriment to the +promisee. This change was a change in substantive law, and +logically it should have been applied throughout. But it arose in +another and later form of action, under circumstances peculiarly +connected with that action, as will be explained hereafter. The +result was that the new doctrine prevailed in the new action, and +the old in the old, and that what was really the anomaly of +inconsistent theories carried out side by side disguised itself +in the form of a limitation upon the action of debt. That action +did not remain, as formerly, the remedy for all binding contracts +to pay money, but, so far as parol contracts were concerned, +could only be used where the consideration was a benefit actually +received by the promisor. With regard to obligations arising in +any other way, it has remained unchanged. + +I must now devote a few words to the effect upon our law of the +other mode of proof which I have mentioned. I mean charters. A +charter was simply a writing. As few could write, most people had +to authenticate a document [272] in some other way, for instance, +by making their mark. This was, in fact, the universal practice +in England until the introduction of Norman customs. /1/ With +them seals came in. But as late as Henry II. they were said by +the Chief Justice of England to belong properly only to kings and +to very great men. /2/ I know no ground for thinking that an +authentic charter had any less effect at that time when not under +seal than when it was sealed. /3/ It was only evidence either +way, and is called so in many of the early cases. /4/ It could be +waived, and suit tendered in its place. /5/ Its conclusive effect +was due to the satisfactory nature of the evidence, not to the +seal. /6/ + +But when seals came into use they obviously made the evidence of +the charter better, in so far as the seal was more difficult to +forge than a stroke of the pen. Seals acquired such importance, +that, for a time, a man was bound by his seal, although it was +affixed without his consent. /7/ At last a seal came to be +required, in order that a charter should have its ancient effect. +/8/ + +A covenant or contract under seal was no longer a promise well +proved; it was a promise of a distinct nature, for which a +distinct form of action came to be provided. [273] /1/ I have +shown how the requirement of consideration became a rule of +substantive law, and also why it never had any foothold in the +domain of covenants. The exception of covenants from the +requirement became a rule of substantive law also. The man who +had set his hand to a charter, from being bound because he had +consented to be, and because there was a writing to prove it, /2/ +was now held by force of the seal and by deed alone as +distinguished from all other writings. And to maintain the +integrity of an inadequate theory, a seal was said to a +consideration. + +Nowadays, it is sometimes thought more philosophical to say that +a covenant is a formal contract, which survives alongside of the +ordinary consensual contract, just as happened in the Roman law. +But this is not a very instructive way of putting it either. In +one sense, everything is form which the law requires in order to +make a promise binding over and above the mere expression of the +promisor's will. Consideration is a form as much as a seal. The +only difference is, that one form is of modern introduction, and +has a foundation in good sense, or at least in with our common +habits of thought, so that we do not notice it, whereas the other +is a survival from an older condition of the law, and is less +manifestly sensible, or less familiar. I may add, that, under the +influence of the latter consideration, the law of covenants is +breaking down. In many States it is held that a mere scroll or +flourish of the pen is a sufficient seal. From this it is a short +step to abolish the distinction between sealed and unsealed +instruments altogether, and this has been done in some of the +Western States. + +[274] While covenants survive in a somewhat weak old age, and +debt has disappeared, leaving a vaguely disturbing influence +behind it, the whole modern law of contract has grown up through +the medium of the action of Assumpsit, which must now be +explained. + +After the Norman conquest all ordinary actions were begun by a +writ issuing from the king, and ordering the defendant to be +summoned before the court to answer the plaintiff. These writs +were issued as a matter of course, in the various well-known +actions from which they took their names. There were writs of +debt and of covenant; there were writs of trespass for forcible +injuries to the plaintiff's person, or to property in his +possession, and so on. But these writs were only issued for the +actions which were known to the law, and without a writ the court +had no authority to try a case. In the time of Edward I. there +were but few of such actions. The cases in which you could +recover money of another fell into a small number of groups, for +each of which there was a particular form of suing and stating +your claim. + +These forms had ceased to be adequate. Thus there were many cases +which did not exactly fall within the definition of a trespass, +but for which it was proper that a remedy should be furnished. In +order to furnish a remedy, the first thing to be done was to +furnish a writ. Accordingly, the famous statute of 13 Edward I., +c. 24, authorized the office from which the old writs issued to +frame new ones in cases similar in principle to those for which +writs were found, and requiring like remedy, but not exactly +falling within the scope of the writs already in use. + +Thus writs of trespass on the case began to make their +appearance; that is, writs stating a ground of complaint [275] to +a trespass, but not quite amounting to a trespass as it had been +sued for in the older precedents. To take an instance which is +substantially one of the earliest cases, suppose that a man left +a horse with a blacksmith to be shod, and he negligently drove a +nail into the horse's foot. It might be that the owner of the +horse could not have one of the old writs, because the horse was +not in his possession when the damage was done. A strict trespass +property could only be committed against the person in possession +of it. It could not be committed by one who was in possession +himself. /1/ But as laming the horse was equally a wrong, whether +the owner held the horse by the bridle or left it with the smith, +and as the wrong was closely analogous to a trespass, although +not one, the law gave the owner a writ of trespass on the case. +/2/ + +An example like this raises no difficulty; it is as much an +action of tort for a wrong as trespass itself. No contract was +stated, and none was necessary on principle. But this does not +belong to the class of cases to be considered, for the problem +before us is to trace the origin of assumpsit, which is an action +of contract. Assumpsit, however, began as an action of trespass +on the case, and the thing to be discovered is how trespass on +the case ever became available for a mere breach of agreement. + +It will be well to examine some of the earliest cases in which an +undertaking (assumpsit) was alleged. The first reported in the +books is of the reign of Edward III. /3/ The plaintiff alleged +that the defendant undertook to carry the plaintiff's horse +safely across the Humber, but surcharged [276] the boat, by +reason of which the horse perished. It was objected that the +action should have been either covenant for breach of the +agreement, or else trespass. But it was answered that the +defendant committed a wrongful act when he surcharged the boat, +and the objection was overruled. This case again, although an +undertaking was stated, hardly introduced a new principle. The +force did not proceed directly from the defendant, to be sure, +but it was brought to bear by the combination of his overloading +and then pushing into the stream. + +The next case is of the same reign, and goes further. /1/ The +writ set forth that the defendant undertook to cure the +plaintiff's horse of sickness (manucepit equum praedicti W. de +infirmirate), and did his work so negligently that the horse +died. This differs from the case of laming the horse with a nail +in two respects. It does not charge any forcible act, nor indeed +any act at all, but a mere omission. On the other hand, it states +an undertaking, which the other did not. The defendant at once +objected that this was an action for a breach of an undertaking, +and that the plaintiff should have brought covenant. The +plaintiff replied, that he could not do that without a deed, and +that the action was for negligently causing the death of the +horse; that is, for a tort, not for a breach of contract. Then, +said the defendant, you might have had trespass. But the +plaintiff answered that by saying that the horse was not killed +by force, but died per def. de sa cure; and upon this argument +the writ was adjudged good, Thorpe, J. saying that he had seen a +man indicted for killing a patient by want of care (default in +curing), whom he had undertaken to cure. + +[277] Both these cases, it will be seen, were dealt with by the +court as pure actions of tort, notwithstanding the allegation of +an undertaking on the part of the defendant. But it will also be +seen that they are successively more remote from an ordinary case +of trespass. In the case last stated, especially, the destroying +force did not proceed from the defendant in any sense. And thus +we are confronted with the question, What possible analogy could +have been found between a wrongful act producing harm, and a +failure to act at all? + +I attempt to answer it, let me illustrate a little further by +examples of somewhat later date. Suppose a man undertook to work +upon another's house, and by his unskilfulness spoiled his +employer's timbers; it would be like a trespass, although not +one, and the employer would sue in trespass on the case. This was +stated as clear law by one of the judges in the reign of Henry +IV. /1/ But suppose that, instead of directly spoiling the +materials, the carpenter had simply left a hole in the roof +through which the rain had come in and done the damage. The +analogy to the previous case is marked, but we are a step farther +away from trespass, because the force does not come from the +defendant. Yet in this instance also the judges thought that +trespass on the case would lie. /2/ In the time of Henry IV. the +action could not have been maintained for a simple refusal to +build according to agreement; but it was suggested by the court, +that, if the writ had mentioned "that the thing had been +commenced and then by not done, it would have been otherwise." +/3/ + +[278] I now recur to the question, What likeness could there have +been between an omission and a trespass sufficient to warrant a +writ of trespass on the case? In order to find an answer it is +essential to notice that in all the earlier cases the omission +occurred in the course of dealing with the plaintiff's person or +property, and occasioned damage to the one or the other. In view +of this fact, Thorpe's reference to indictments for killing a +patient by want of care, and the later distinction between +neglect before and after the task is commenced, are most +pregnant. The former becomes still more suggestive when it is +remembered that this is the first argument or analogy to be found +upon the subject. + +The meaning of that analogy is plain. Although a man has a +perfect right to stand by and see his neighbor's property +destroyed, or, for the matter of that, to watch his neighbor +perish for want of his help, yet if he once intermeddles he has +no longer the same freedom. He cannot withdraw at will. To give a +more specific example, if a surgeon from benevolence cuts the +umbilical cord of a newly-born child, he cannot stop there and +watch the patient bleed to death. It would be murder wilfully to +allow death to come to pass in that way, as much as if the +intention had been entertained at the time of cutting the cord. +It would not matter whether the wickedness began with the act, or +with the subsequent omission. + +The same reasoning applies to civil liability. A carpenter need +not go to work upon another man's house at all, but if he accepts +the other's confidence and intermeddles, he cannot stop at will +and leave the roof open to the weather. So in the case of the +farrier, when he had taken charge of the horse, he could not stop +at the critical moment [279] and leave the consequences to +fortune. So, still more clearly, when the ferryman undertook to +carry a horse across the Humber, although the water drowned the +horse, his remote acts of overloading his boat and pushing it +into the stream in that condition occasioned the loss, and he was +answerable for it. + +In the foregoing cases the duty was independent of contract, or +at least was so regarded by the judges who decided them, and +stood on the general rules applied to human conduct even by the +criminal law. The immediate occasion of the damage complained of +may have been a mere omission letting in the operation of natural +forces. But if you connect it, as it was connected in fact, with +the previous dealings, you have a course of action and conduct +which, taken as a whole, has caused or occasioned the harm. + +The objection may be urged, to be sure, that there is a +considerable step from holding a man liable for the consequences +of his acts which he might have prevented, to making him +answerable for not having interfered with the course of nature +when he neither set it in motion nor opened the door for it to do +harm, and that there is just that difference between making a +hole in a roof and leaving it open, or cutting the cord and +letting it bleed, on the one side, and the case of a farrier who +receives a sick horse and omits proper precautions, on the other. +/1/ + +There seem to be two answers to this. First, it is not clear that +such a distinction was adverted to by the court which decided the +case which I have mentioned. It was alleged that the defendant +performed his cure so negligently that the horse died. It might +not have occurred to [280] the judges that the defendant's +conduct possibly went no further than the omission of a series of +beneficial measures. It was probably assumed to have consisted of +a combination of acts and neglects, which taken as a whole +amounted to an improper dealing with the thing. + +In the next place, it is doubtful whether the distinction is a +sound one on practical grounds. It may well be that, so long as +one allows a trust to be reposed in him, he is bound to use such +precautions as are known to him, although he has made no +contract, and is at liberty to renounce the trust in any +reasonable manner. This view derives some support from the issue +on which the parties went to trial, which was that the defendant +performed the cure as well as he knew how, without this, that the +horse died for default of his care (cure?). /1/ + +But it cannot be denied that the allegation of an undertaking +conveyed the idea of a promise, as well as that of an entering +upon the business in hand. Indeed, the latter element is +sufficiently conveyed, perhaps, without it. It may be asked, +therefore, whether the promise did not count for something in +raising a duty to act. So far as this involves the consequence +that the action was in fact for the breach of a contract, the +answer has been given already, and is sustained by too great a +weight of authority to be doubted. /2/ To bind the defendant by a +contract, an instrument under seal was essential. As has been +shown, already, even the ancient sphere of debt had been limited +by this requirement, and in the time of Edward III. a deed was +necessary even to bind a surety. It was so [281] a fortiori to +introduce a liability upon promises not enforced by the ancient +law. Nevertheless, the suggestion was made at an early date, that +an action on the case for damage by negligence, that is, by an +omission of proper precautions, alleging an undertaking by way of +inducement, was in fact an action of contract. + +Five years after the action for negligence in curing a horse, +which has been stated, an action was brought /1/ in form against +a surgeon, alleging that he undertook to cure the plaintiff's +hand, and that by his negligence the hand was maimed. There was, +however, this difference, that it was set forth that the +plaintiff's hand had been wounded by one T.B. And hence it +appeared that, however much the bad treatment may have aggravated +matters, the maiming was properly attributable to T.B., and that +the plaintiff had an action against him. This may have led the +defendant to adopt the course he did, because he felt uncertain +whether any action of tort would lie. He took issue on the +undertaking, assuming that to be essential to the plaintiff's +case, and then objected that the writ did not show the place of +the undertaking, and hence was bad, because it did not show +whence the inquest should be summoned to speak to that point. The +writ was adjudged bad on that ground, which seems as if the court +sanctioned the defendant's view. Indeed, one of the judges called +it an action of covenant, and said that "of necessity it was +maintainable without specialty, because for so small a matter a +man cannot always have a clerk at hand to write a deed" (pur +faire especially). At the same time the earlier cases which [282] +have been mentioned were cited and relied on, and it is evident +that the court was not prepared to go beyond them, or to hold +that the action could be maintained on its merits apart from the +technical objection. In another connection it seems to have +considered the action from the point of view of trespass. /1/ + +Whatever questions this case may suggest, the class of actions +which alleged an undertaking on the part of the defendant +continued to be dealt with as actions of tort for a long time +after Edward III. The liability was limited to damage to person +or property arising after the defendant had entered upon the +employment. And it was mainly through reasoning drawn from the +law of tort that it was afterwards extended, as will be seen. + +At the beginning of the reign of Henry VI. it was probably still +the law that the action would not lie for a simple failure to +keep a promise. /2/ But it had been several times suggested, as +has been shown, that it would be otherwise if the omission or +neglect occurred in the course of performance, and the +defendant's conduct had been followed by physical damage. /3/ +This suggestion took its most striking form in the early years of +Henry VI., when the case of the carpenter leaving a hole in the +roof was put. /4/ When the courts had got as far as this, it was +easy to go one step farther, and to allow the same effect to an +omission at any stage, followed by similar damage. + +[283] What is the difference in principle, it was asked, a few +years later, /1/ between the cases where it is admitted that the +action will lie, and that of a smith who undertakes to shoe a +horse and does not, by reason of which the horse goes lame,--or +that of a lawyer, who undertakes to argue your case, and, after +thus inducing you to rely upon him, neglects to be present, so +that you lose it? It was said that in the earlier instances the +duty was dependent on or accessory to the covenant, and that, if +the action would lie on the accessory matter, it would lie on the +principal. /2/ It was held on demurrer that an action would lie +for not procuring certain releases which the defendant had +undertaken to get. + +Five years later another case /3/ came up, which was very like +that of the farrier in the reign of Edward III. It was alleged +that the defendant undertook to cure the plaintiff's horse, and +applied medicine so negligently that the horse died. In this, as +in the earlier case, the issue was taken on the assumpsit. And +now the difference between an omission and an act was clearly +stated, the declaration was held not to mean necessarily anything +more than an omission, and it was said that but for the +undertaking the defendant would have owed no duty to act. Hence +the allegation of the defendant's promise was material, and an +issue could properly be taken on it. + +This decision distinctly separated from the mass of actions on +the case a special class arising out of a promise as the source +of the defendant's obligation, and it was only a matter of time +for that class to become a new and distinct [284] action of +contract. Had this change taken place at once, the doctrine of +consideration, which was first definitely enunciated about the +same time, would no doubt have been applied, and a quid pro quo +would have been required for the undertaking. /1/ But the notion +of tort was not at once abandoned. The law was laid down at the +beginning of the reign of Henry VII., in accordance with the +earlier decisions, and it was said that the action would not lie +for a failure to keep a promise, but only for negligence after +the defendant had entered upon his undertaking. /2/ + +So far as the action did not exceed the true limits of tort, it +was immaterial whether there was a consideration for the +undertaking or not. But when the mistake was made of supposing +that all cases, whether proper torts or not, in which an +assumpsit was alleged, were equally founded on the promise, one +of two erroneous conclusions was naturally thought to follow. +Either no assumpsit needed any quid pro quo, /3/ as there was +clearly none in the older precedents, (they being cases of pure +tort,) or else those precedents were wrong, and a quid pro quo +should be alleged in every case. It was long recognized with more +or less understanding of the true limit, that, in cases where the +gist of the action was negligent damage to property, a +consideration was not necessary. /4/ And there are some traces of +the notion that it was always superfluous, as late as Charles I. + +[285] In a case of that reign, the defendant retained an attorney +to act in a suit for a third person, and promised to pay him all +his fees and expenses. The attorney rendered the service, and +then brought debt. It was objected that debt did not lie, because +there was no contract between the parties, and the defendant had +not any quid pro quo. The court adopted the argument, and said +that there was no contract or consideration to ground this +action, but that the plaintiff might have sued in assumpsit. /1/ + +It was, perhaps, the lingering of this idea, and the often +repeated notion that an assumpsit was not a contract, /2/ to +which was attributable a more enlarged theory of consideration +than prevailed in debt. It was settled that assumpsit would lie +for a mere omission or nonfeasance. The cases which have been +mentioned of the reign of Henry VI. were followed by others in +the latter years of Henry VII., /3/ and it was never again +doubted. An action for such a cause was clearly for a breach of +promise, as had been recognized from the time of Edward III. If +so, a consideration was necessary. /4/ Notwithstanding occasional +vagaries, that also had been settled or taken for granted in many +cases of Queen Elizabeth's time. But the bastard origin of the +action which gave rise to the doubt how far any consideration at +all was necessary, made it possible to hold considerations +sufficient which had been in debt. + +Another circumstance may not have been without its influence. It +would seem that, in the period when assumpsit [286] was just +growing into its full proportions, there was some little +inclination to identify consideration with the Roman causa, taken +in its broadest sense. The word "cause" was used for +consideration in the early years of Elizabeth, with reference to +a covenant to stand seized to uses. /1/ It was used in the same +sense in the action of assumpsit. /2/ In the last cited report, +although the principal case only laid down a doctrine that would +be followed to-day, there was also stated an anonymous case which +was interpreted to mean that an executed consideration furnished +upon request, but without any promise of any kind, would support +a subsequent promise to pay for it. /3/ Starting from this +authority and the word "cause," the conclusion was soon reached +that there was a great difference between a contract and an +assumpsit; and that, whereas in contracts "everything which is +requisite ought to concur and meet together, viz. the +consideration of the one side, and the sale or the promise on the +other side,... to maintain an action upon an assumpsit, the same +is not requisite, for it is sufficient if there be a moving cause +or consideration precedent; for which cause or consideration the +promise was made." /4/ + +Thus, where the defendant retained the plaintiff to be [287] to +his aunt at ten shillings a week, it was held that assumpsit +would lie, because the service, though not beneficial to the +defendant, was a charge or detriment to the plaintiff. /1/ The +old questions were reargued, and views which were very near +prevailing in debt under Henry VI., prevailed in assumpsit under +Elizabeth and James. + +A surety could be sued in assumpsit, although he had ceased to be +liable in debt. /2/ There was the same remedy on a promise in +consideration that the plaintiff would marry the defendant's +daughter. /3/ The illusion that assumpsit thus extended did not +mean contract, could not be kept up. In view of this admission +and of the ancient precedents, the law oscillated for a time in +the direction of reward as the true essence of consideration. /4/ +But the other view prevailed, and thus, in fact, made a change in +the substantive law. A simple contract, to be recognized as +binding by the courts of Henry VI., must have been based upon a +benefit to the debtor; now a promise might be enforced in +consideration of a detriment to the promisee. But in the true +archaic spirit the doctrine was not separated or distinguished +from the remedy which introduced it, and thus debt in modern +times has presented the altered appearance of a duty limited to +cases where the consideration was of a special sort. + +The later fortunes of assumpsit can be briefly told. It +introduced bilateral contracts, because a promise was a [288] +detriment, and therefore a sufficient consideration for another +promise. It supplanted debt, because the existence of the duty to +pay was sufficient consideration for a promise to pay, or rather +because, before a consideration was required, and as soon as +assumpsit would lie for a nonfeasance, this action was used to +avoid the defendant's wager of law. It vastly extended the number +of actionable contracts, which had formerly been confined to +debts and covenants, whereas nearly any promise could be sued in +assumpsit; and it introduced a theory which has had great +influence on modern law,--that all the liabilities of a bailee +are founded on contract. /1/ Whether the prominence which was +thus given to contract as the foundation of legal rights and +duties had anything to do with the similar prominence which it +soon acquired in political speculation, it is beyond my province +to inquire. + +[289] + + + + +LECTURE VIII. -- CONTRACT. II. ELEMENTS. + +THE general method to be pursued in the analysis of contract is +the same as that already explained with regard to possession. +Wherever the law gives special rights to one, or imposes special +burdens on another, it does so on the ground that certain special +facts are true of those individuals. In all such cases, +therefore, there is a twofold task. First, to determine what are +the facts to which the special consequences are attached; second, +to ascertain the consequences. The first is the main field of +legal argument. With regard to contracts the facts are not always +the same. They may be that a certain person has signed, sealed, +and delivered a writing of a certain purport. They may be that he +has made an oral promise, and that the promisee has furnished him +a consideration. + +The common element of all contracts might be said to be a +promise, although even a promise was not necessary to a liability +in debt as formerly understood. But as it will not be possible to +discuss covenants further, and as consideration formed the main +topic of the last Lecture, I will take up that first. +Furthermore, as there is an historical difference between +consideration in debt and in assumpsit, I shall confine myself to +the latter, which is the later and more philosophical form. + +It is said that any benefit conferred by the promisee on the +promisor, or any detriment incurred by the promisee, [290] may be +a consideration. It is also thought that every consideration may +be reduced to a case of the latter sort, using the word +"detriment" in a somewhat broad sense. + +To illustrate the general doctrine, suppose that a man is +desirous of having a cask of brandy carried from Boston to +Cambridge, and that a truckman, either out of kindness or from +some other motive, says that he will carry it, and it is +delivered to him accordingly. If he carelessly staves in the +cask, there would perhaps be no need to allege that he undertook +to carry it, and on principle, and according to the older cases, +if an undertaking was alleged, no consideration for the assumpsit +need be stated. /1/ The ground of complaint in that case would be +a wrong, irrespective of contract. But if the complaint was that +he did not carry it as agreed, the plaintiff's difficulty would +be that the truckman was not bound to do so unless there was a +consideration for his promise. Suppose, therefore, that it was +alleged that he promised to do so in consideration of the +delivery to him. Would this be a sufficient consideration? The +oldest cases, going on the notion of benefit to the promisor, +said that it could not be, for it was a trouble, not a benefit. +/2/ Then take it from the side of detriment. The delivery is a +necessary condition to the promisor's doing the kindness, and if +he does it, the delivery, so far from being a detriment to the +promisee, is a clear benefit to him. + +But this argument is a fallacy. Clearly the delivery would be +sufficient consideration to enable the owner to declare in +assumpsit for the breach of those duties which [291] arose, +irrespective of contract, from the defendant's having undertaken +to deal with the thing. /1/ It would be a sufficient +consideration for any promise not involving a dealing with the +thing for its performance, for instance, to pay a thousand +dollars. /2/ And the law has not pronounced the consideration +good or bad according to the nature of the promise founded upon +it. The delivery is a sufficient consideration for any promise. +/3/ + +The argument on the other side leaves out of sight the point of +time at which the sufficiency of the consideration is to be +determined. This is the moment when the consideration is +furnished. At that moment the delivery of the cask is a detriment +in the strictest sense. The owner of the cask has given up a +present control over it, which he has a right to keep, and he has +got in return, not a performance for which a delivery was +necessary, but a mere promise of performance. The performance is +still future. /4/ + +But it will be seen that, although the delivery may be a +consideration, it will not necessarily be one. A promise to carry +might be made and accepted on the understanding that it was mere +matter of favor, without consideration, and not legally binding. +In that case the detriment of delivery would be incurred by the +promisee as before, but obviously it would be incurred for the +sole purpose of enabling the promisor to carry as agreed. + +[292] It appears to me that it has not always been sufficiently +borne in mind that the same thing may be a consideration or not, +as it is dealt with by the parties. The popular explanation of +Coggs v. Bernard is, that the delivery was a consideration for a +promise to carry the casks safely. I have given what I believe to +be the true explanation, and that which I think Lord Holt had in +view, in the fifth Lecture. /1/ But whether that which I have +offered be true or not, a serious objection to the one which is +commonly accepted is that the declaration does not allege that +the delivery was the consideration. + +The same caution should be observed in construing the terms of an +agreement. It is hard to see the propriety of erecting any +detriment which an instrument may disclose or provide for, into a +consideration, unless the parties have dealt with it on that +footing. In many cases a promisee may incur a detriment without +thereby furnishing a consideration. The detriment may be nothing +but a condition precedent to performance of the promise, as where +a man promises another to pay him five hundred dollars if he +breaks his leg. /2/ + +The courts, however, have gone far towards obliterating this +distinction. Acts which by a fair interpretation of language +would seem to have been contemplated as only the compliance with +a condition, have been treated as the consideration of the +promise. /3/ And so have counter promises in an agreement which +expressly stated other matters as the consideration. /4/ So it +should be mentioned, subject [293] to the question whether there +may not be a special explanation for the doctrine, that it is +said that an assignment of a leasehold cannot be voluntary under +the statute of 27 Elizabeth, c. 4, because the assignee comes +into the obligations of the tenant. /1/ Yet the assignee's +incurring this detriment may not be contemplated as the +inducement of the assignment, and in many cases only amounts to a +deduction from the benefit conferred, as a right of way would be, +especially if the only obligation is to pay rent, which issues +out of the land in theory of law. + +But although the courts may have sometimes gone a little far in +their anxiety to sustain agreements, there can be no doubt of the +Principle which I have laid down, that the same thing may be a +consideration or not, as it is dealt with by the parties. This +raises the question how a thing must be dealt with, in order to +make it a consideration. + +It is said that consideration must not be confounded with motive. +It is true that it must not be confounded with what may be the +prevailing or chief motive in actual fact. A man may promise to +paint a picture for five hundred dollars, while his chief motive +may be a desire for fame. A consideration may be given and +accepted, in fact, solely for the purpose of making a promise +binding. But, nevertheless, it is the essence of a consideration, +that, by the terms of the agreement, it is given and accepted as +the motive or inducement of the promise. Conversely, the promise +must be made and accepted as the conventional motive or +inducement for furnishing the consideration. The root of the +whole matter is the relation of reciprocal [294] conventional +inducement, each for the other, between consideration and +promise. + +A good example of the former branch of the proposition is to be +found in a Massachusetts case. The plaintiff refused to let +certain wood be removed from his land by one who had made an oral +bargain and given his note for it, unless he received additional +security. The purchaser and the plaintiff accordingly went to the +defendant, and the defendant put his name upon the note. The +plaintiff thereupon let the purchaser carry off the wood. But, +according to the testimony, the defendant signed without knowing +that the plaintiff was to alter his position in any way on the +faith of the signature, and it was held that, if that story was +believed, there was no consideration. /1/ + +An illustration of the other half of the rule is to be found in +those cases where a reward is offered for doing something, which +is afterwards done by a person acting in ignorance of the offer. +In such a case the reward cannot be claimed, because the alleged +consideration has not been furnished on the faith of the offer. +The tendered promise has not induced the furnishing of the +consideration. The promise cannot be set up as a conventional +motive when it was not known until after the alleged +consideration was performed. /2/ + +Both sides of the relation between consideration and promise, and +the conventional nature of that relation, may be illustrated by +the case of the cask. Suppose that the [295] truckman is willing +to carry the cask, and the owner to let him carry it, without any +bargain, and that each knows the other's state of mind; but that +the truckman, seeing his own advantage in the matter, says to the +owner, "In consideration of your delivering me the cask, and +letting me carry it, I promise to carry it," and that the owner +thereupon delivers it. I suppose that the promise would be +binding. The promise is offered in terms as the inducement for +the delivery, and the delivery is made in terms as the inducement +for the promise. It may be very probable that the delivery would +have been made without a promise, and that the promise would have +been made in gratuitous form if it had not been accepted upon +consideration; but this is only a guess after all. The delivery +need not have been made unless the owner chose, and having been +made as the term of a bargain, the promisor cannot set up what +might have happened to destroy the effect of what did happen. It +would seem therefore that the same transaction in substance and +spirit might be voluntary or obligatory, according to the form of +words which the parties chose to employ for the purpose of +affecting the legal consequences. + +If the foregoing principles be accepted, they will be seen to +explain a doctrine which has given the courts some trouble to +establish. I mean the doctrine that an executed consideration +will not sustain a subsequent promise. It has been said, to be +sure, that such a consideration was sufficient if preceded by a +request. But the objections to the view are plain. If the request +was of such a nature, and so put, as reasonably to imply that the +other person was to have a reward, there was an express promise, +although not put in words, and that promise was made at [296] the +same time the consideration was given, and not afterwards. If, on +the other hand, the words did not warrant the understanding that +the service was to be paid for, the service was a gift, and a +past gift can no more be a consideration than any other act of +the promisee not induced by the promise. + +The source of the error can be traced partially, at least, in +history. Some suggestions touching the matter were made in the +last Lecture. A few words should be added here. In the old cases +of debt, where there was some question whether the plaintiff had +showed enough to maintain his action, a "contract precedent" was +spoken of several times as raising the duty. Thus, where a man +had granted that he would be bound in one hundred shillings to +pay his servant on a certain day for his services, and for +payments made by the servant on his account, it was argued that +there was no contract precedent, and that by parol the party is +not obliged; and, further, that, so far as appeared, the payments +were made by the servant out of his own head and at no request, +from which no duty could commence. /1/ + +So when debt was brought on a deed to pay the plaintiff ten +marks, if he would take the defendant's daughter to wife, and it +was objected that the action should have been covenant, it was +answered that the plaintiff had a contract precedent which gave +him debt. /2/ + +The first case in assumpsit /3/ only meant to adopt this long +familiar thought. A man went bail for his friend's servant, who +had been arrested. Afterwards the master [297] promised to +indemnify the bail, and on his failure to do so was sued by him +in assumpsit. It was held that there was no consideration +wherefore the defendant should be charged unless the master had +first promised to indemnify the plaintiff before the servant was +bailed; "for the master did never make request to the plaintiff +for his servant to do so much, but he did it of his own head." +This is perfectly plain sailing, and means no more than the case +in the Year Books. The report, however, also states a case in +which it was held that a subsequent promise, in consideration +that the plaintiff at the special instance of the defendant had +married the defendant's cousin, was binding, and that the +marriage was "good cause... because [it] ensued the request of +the defendant." Whether this was intended to establish a general +principle, or was decided with reference to the peculiar +consideration of marriage, /1/ it was soon interpreted in the +broader sense, as was shown in the last Lecture. It was several +times adjudged that a past and executed matter was a sufficient +consideration for a promise at a later day, if only the matter +relied on had been done or furnished at the request of the +promisor. /2/ + +It is now time to analyze the nature of a promise, which is the +second and most conspicuous element in a simple contract. The +Indian Contract Act, 1872, Section 2,8 says:-- + + "(a.) When one person signifies to another his willingness [298] +to do or to abstain from doing anything, with a view to obtaining +the assent of that other to such act or abstinence, he is said to +make a proposal: + + "(b.) When the person to whom the proposal is made signifies his +assent thereto, the proposal is said to be accepted. A proposal +when accepted becomes a promise." + +According to this definition the scope of promises is confined to +conduct on the part of the promisor. If this only meant that the +promisor alone must bear the legal burden which his promise may +create, it would be true. But this is not the meaning. For the +definition is of a promise, not of a legally binding promise. We +are not seeking for the legal effects of a contract, but for the +possible contents of a promise which the law may or may not +enforce. We must therefore only consider the question what can +possibly be promised in a legal sense, not what will be the +secondary consequence of a promise binding, but not performed. + +An assurance that it shall rain to-morrow, /1/ or that a third +person shall paint a picture, may as well be a promise as one +that the promisee shall receive from some source one hundred +bales of cotton, or that the promisor will pay the promisee one +hundred dollars. What is the difference in the cases? It is only +in the degree of power possessed by the promisor over the event. +He has none in the first case. He has equally little legal +authority to make a man paint a picture, although he may have +larger means of persuasion. He probably will be able to make sure +that the promisee has the cotton. Being a rich man, he is certain +[299] to be able to pay the one hundred dollars, except in the +event of some most improbable accident. + +But the law does not inquire, as a general thing, how far the +accomplishment of an assurance touching the future is within the +power of the promisor. In the moral world it may be that the +obligation of a promise is confined to what lies within reach of +the will of the promisor (except so far as the limit is unknown +on one side, and misrepresented on the other). But unless some +consideration of public policy intervenes, I take it that a man +may bind himself at law that any future event shall happen. He +can therefore promise it in a legal sense. It may be said that +when a man covenants that it shall rain to-morrow, or that A +shall paint a picture, he only says, in a short form, I will pay +if it does not rain, or if A does not paint a picture. But that +is not necessarily so. A promise could easily be framed which +would be broken by the happening of fair weather, or by A not +painting. A promise, then, is simply an accepted assurance that a +certain event or state of things shall come to pass. + +But if this be true, it has more important bearings than simply +to enlarge the definition of the word promise. It concerns the +theory of contract. The consequences of a binding promise at +common law are not affected by the degree of power which the +promisor possesses over the promised event. If the promised event +does not come to pass, the plaintiff's property is sold to +satisfy the damages, within certain limits, which the promisee +has suffered by the failure. The consequences are the same in +kind whether the promise is that it shall rain, or that another +man shall paint a picture, or that the promisor will deliver a +bale of cotton. + +[300] If the legal consequence is the same in all cases, it seems +proper that all contracts should be considered from the same +legal point of view. In the case of a binding promise that it +shall rain to-morrow, the immediate legal effect of what the +promisor does is, that he takes the risk of the event, within +certain defined limits, as between himself and the promisee. He +does no more when he promises to deliver a bale of cotton. + +If it be proper to state the common-law meaning of promise and +contract in this way, it has the advantage of freeing the subject +from the superfluous theory that contract is a qualified +subjection of one will to another, a kind of limited slavery. It +might be so regarded if the law compelled men to perform their +contracts, or if it allowed promisees to exercise such +compulsion. If, when a man promised to labor for another, the law +made him do it, his relation to his promisee might be called a +servitude ad hoc with some truth. But that is what the law never +does. It never interferes until a promise has been broken, and +therefore cannot possibly be performed according to its tenor. It +is true that in some instances equity does what is called +compelling specific performance. But, in the first place, I am +speaking of the common law, and, in the next, this only means +that equity compels the performance of certain elements of the +total promise which are still capable of performance. For +instance, take a promise to convey land within a certain time, a +court of equity is not in the habit of interfering until the time +has gone by, so that the promise cannot be performed as made. But +if the conveyance is more important than the time, and the +promisee prefers to have it late rather than never, the law may +compel the performance of [301] that. Not literally compel even +in that case, however, but put the promisor in prison unless he +will convey. This remedy is an exceptional one. The only +universal consequence of a legally binding promise is, that the +law makes the promisor pay damages if the promised event does not +come to pass. In every case it leaves him free from interference +until the time for fulfilment has gone by, and therefore free to +break his contract if he chooses. + +A more practical advantage in looking at a contract as the taking +of a risk is to be found in the light which it throws upon the +measure of damages. If a breach of contract were regarded in the +same light as a tort, it would seem that if, in the course of +performance of the contract the promisor should be notified of +any particular consequence which would result from its not being +performed, he should be held liable for that consequence in the +event of non-performance. Such a suggestion has been made. /1/ +But it has not been accepted as the law. On the contrary, +according to the opinion of a very able judge, which seems to be +generally followed, notice, even at the time of making the +contract, of special circumstances out of which special damages +would arise in case of breach, is not sufficient unless the +assumption of that risk is to be taken as having fairly entered +into the contract. /2/ If a carrier should undertake to carry the +machinery of a saw-mill from Liverpool to Vancouver's Island, and +should fail [302] to do so, he probably would not be held liable +for the rate of hire of such machinery during the necessary +delay, although he might know that it could not be replaced +without sending to England, unless he was fairly understood to +accept "the contract with the special condition attached to it." +/1/ + +It is true that, when people make contracts, they usually +contemplate the performance rather than the breach. The express +language used does not generally go further than to define what +will happen if the contract is fulfilled. A statutory requirement +of a memorandum in writing would be satisfied by a written +statement of the promise as made, because to require more would +be to run counter to the ordinary habits of mankind, as well as +because the statement that the effect of a contract is the +assumption of the risk of a future event does not mean that there +is a second subsidiary promise to assume that risk, but that the +assumption follows as a consequence directly enforced by the law, +without the promisor's co-operation. So parol evidence would be +admissible, no doubt, to enlarge or diminish the extent of the +liability assumed for nonperformance, where it would be +inadmissible to affect the scope of the promise. + +But these concessions do not affect the view here taken. As the +relation of contractor and contractee is voluntary, the +consequences attaching to the relation must be voluntary. What +the event contemplated by the promise is, or in other words what +will amount to a breach of contract, is a matter of +interpretation and construction. What consequences of the breach +are assumed is more remotely, in like manner, a matter of +construction, having regard [303] to the circumstances under +which the contract is made. Knowledge of what is dependent upon +performance is one of those circumstances. It is not necessarily +conclusive, but it may have the effect of enlarging the risk +assumed. + +The very office of construction is to work out, from what is +expressly said and done, what would have been said with regard to +events not definitely before the minds of the parties, if those +events had been considered. The price paid in mercantile +contracts generally excludes the construction that exceptional +risks were intended to be assumed. The foregoing analysis is +believed to show that the result which has been reached by the +courts on grounds of practical good sense, falls in with the true +theory of contract under the common law. + +The discussion of the nature of a promise has led me to analyze +contract and the consequences of contract somewhat in advance of +their place. I must say a word more concerning the facts which +constitute a promise. It is laid down, with theoretical truth, +that, besides the assurance or offer on the one side, there must +be an acceptance on the other. But I find it hard to think of a +case where a simple contract fails to be made, which could not be +accounted for on other grounds, generally by the want of relation +between assurance or offer and consideration as reciprocal +inducements each of the other. Acceptance of an offer usually +follows by mere implication from the furnishing of the +consideration; and inasmuch as by our law an accepted offer, or +promise, until the consideration is furnished, stands on no +different footing from an offer not yet accepted, each being +subject to revocation until that time, and each continuing [304] +until then unless it has expired or has been revoked, the +question of acceptance is rarely of practical importance. + +Assuming that the general nature of consideration and promise is +understood, some questions peculiar to bilateral contracts remain +to be considered. These concern the sufficiency of the +consideration and the moment when the contract is made. + +A promise may be a consideration for a promise, although not +every promise for every other. It may be doubted whether a +promise to make a gift of one hundred dollars would be supported +by a promise to accept it. But in a case of mutual promises +respectively to transfer and to accept unpaid shares in a railway +company, it has been held that a binding contract was made. Here +one party agrees to part with something which may prove valuable, +and the other to assume a liability which may prove onerous. /1/ + +But now suppose that there is no element of uncertainty except in +the minds of the parties. Take, for instance, a wager on a past +horse-race. It has been thought that this would amount to an +absolute promise on one side, and no promise at all on the other. +/2/ But this does not seem to me sound. Contracts are dealings +between men, by which they make arrangements for the future. In +making such arrangements the important thing is, not what is +objectively true, but what the parties know. Any present fact +which is unknown to the parties is just as uncertain for the +purposes of making an arrangement at this moment, as any future +fact. It is therefore a detriment to undertake to be ready to pay +if the event turns out not [305] to have been as expected. This +seems to be the true explanation why forbearance to sue upon a +claim believed the plaintiff to be good is a sufficient +consideration, although the claim was bad in fact, and known by +the defendant to be bad. /1/ Were this view unsound, it is hard +to see how wagers on any future event, except a miracle, could be +sustained. For if the happening or not happening of the event is +subject to the law of causation, the only uncertainty about it is +in our foresight, not in its happening. + +The question when a contract is made arises for the most part +with regard to bilateral contracts by letter, the doubt being +whether the contract is complete at the moment when the return +promise is put into the post, or at the moment when it is +received. If convenience preponderates in favor of either view, +that is a sufficient reason for its adoption. So far as merely +logical grounds go, the most ingenious argument in favor of the +later moment is Professor Langdell's. According to him the +conclusion follows from the fact that the consideration which +makes the offer binding is itself a promise. Every promise, he +says, is an offer before it is a promise, and the essence of an +offer is that it should be communicated. /2/ But this reasoning +seems unsound. When, as in the case supposed, the consideration +for the return promise has been put into the power of the offeree +and the return promise has been accepted in advance, there is not +an instant, either in time or logic, when the return promise is +an offer. It is a promise and a term of a binding contract as +soon as it is anything. An offer is a revocable and unaccepted +communication of willingness to promise. [306] When an offer of a +certain bilateral contract has been made, the same contract +cannot be offered by the other side. The so-called offer would +neither be revocable nor unaccepted. It would complete the +contract as soon as made. + +If it be said that it is of the essence of a promise to be +communicated, whether it goes through the stage of offer or not, +meaning by communicated brought to the actual knowledge of the +promisee, the law is believed to be otherwise. A covenant is +binding when it is delivered and accepted, whether it is read or +not. On the same principle, it is believed that, whenever the +obligation is to be entered into by a tangible sign, as, in the +case supposed, by letter containing the return promise, and the +consideration for and assent to the promise are already given, +the only question is when the tangible sign is sufficiently put +into the power of the promisee. I cannot believe that, if the +letter had been delivered to the promisee and was then snatched +from his hands before he had read it, there would be no contract. +/1/ If I am right, it appears of little importance whether the +post-office be regarded as agent or bailee for the offerer, or as +a mere box to which he has access. The offeree, when he drops the +letter containing the counter-promise into the letter-box, does +an overt act, which by general understanding renounces control +over the letter, and puts it into a third hand for the benefit of +the offerer, with liberty to the latter at any moment thereafter +to take it. + +The principles governing revocation are wholly different. One to +whom an offer is made has a right to assume that it remains open +according to its terms until he has actual [307] notice to the +contrary. The effect of the communication must be destroyed by a +counter communication. But the making of a contract does not +depend on the state of the parties' minds, it depends on their +overt acts. When the sign of the counter promise is a tangible +object, the contract is completed when the dominion over that +object changes. + +[308] + + + + +LECTURE IX. -- CONTRACT.--III. VOID AND VOIDABLE. + +THE elements of fact necessary to call a contract into existence, +and the legal consequences of a contract when formed, have been +discussed. It remains to consider successively the cases in which +a contract is said to be void, and those in which it is said to +be voidable,--in which, that is, a contract fails to be made when +it seems to have been, or, having been made, can be rescinded by +one side or the other, and treated as if it had never been. I +take up the former class of cases first. + +When a contract fails to be made, although the usual forms have +been gone through with, the ground of failure is commonly said to +be mistake, misrepresentation, or fraud. But I shall try to show +that these are merely dramatic circumstances, and that the true +ground is the absence of one or more of the primary elements, +which have been shown, or are seen at once, to be necessary to +the existence of a contract. + +If a man goes through the form of making a contract with A +through B as A's agent, and B is not in fact the agent of A, +there is no contract, because there is only one party. The +promise offered to A has not been accepted by him, and no +consideration has moved from him. In such a case, although there +is generally mistake on one side and fraud on the other, it is +very clear that no special [309] doctrine need be resorted to, +because the primary elements of a contract explained in the last +Lecture are not yet present. + +Take next a different case. The defendant agreed to buy, and the +plaintiff agreed to sell, a cargo of cotton, "to arrive ex +Peerless from Bombay." There were two such vessels sailing from +Bombay, one in October, the other in December. The plaintiff +meant the latter, the defendant the former. It was held that the +defendant was not bound to accept the cotton. /1/ It is commonly +said that such a contract is void, because of mutual mistake as +to the subject-matter, and because therefore the parties did not +consent to the same thing. But this way of putting it seems to me +misleading. The law has nothing to do with the actual state of +the parties' minds. In contract, as elsewhere, it must go by +externals, and judge parties by their conduct. If there had been +but one "Peerless," and the defendant had said "Peerless" by +mistake, meaning "Peri," he would have been bound. The true +ground of the decision was not that each party meant a different +thing from the other, as is implied by the explanation which has +been mentioned, but that each said a different thing. The +plaintiff offered one thing, the defendant expressed his assent +to another. + +A proper name, when used in business or in pleading, /2/ means +one individual thing, and no other, as every one knows, and +therefore one to whom such a name is used must find out at his +peril what the object designated is. If there are no +circumstances which make the use deceptive on either side, each +is entitled to insist on the [310] meaning favorable to him for +the word as used by him, and neither is entitled to insist on +that meaning for the word as used by the other. So far from +mistake having been the ground of decision, as mistake, its only +bearing, as it seems to me, was to establish that neither party +knew that he was understood by the other to use the word +"Peerless "in the sense which the latter gave to it. In that +event there would perhaps have been a binding contract, because, +if a man uses a word to which he knows the other party attaches, +and understands him to attach, a certain meaning, he may be held +to that meaning, and not be allowed to give it any other. /1/ + +Next, suppose a case in which the offer and acceptance do not +differ, and in which both parties have used the same words in the +same sense. Suppose that A agreed to buy, and B agreed to sell, +"these barrels of mackerel," and that the barrels in question +turn out to contain salt. There is mutual mistake as to the +contents of the barrels, and no fraud on either side. I suppose +the contract would be void. /2/ + +It is commonly said that the failure of the contract in such a +case is due to the fact of a difference in kind between the +actual subject-matter and that to which the intention of the +parties was directed. It is perhaps more instructive to say that +the terms of the supposed contract, although seemingly +consistent, were contradictory, in matters that went to the root +of the bargain. For, by one of the essential terms, the +subject-matter of the agreement was the contents of certain +barrels, and nothing else, and, by another equally important, it +was mackerel, and nothing else; [311] while, as a matter of fact, +it could not be both, because the contents of the barrels were +salt. As neither term could be left out without forcing on the +parties a contract which they did not make, it follows that A +cannot be required to accept, nor B to deliver either these +barrels of salt, or other barrels of mackerel; and without +omitting one term, the promise is meaningless. + +If there had been fraud on the seller's part, or if he had known +what the barrels really contained, the buyer might have had a +right to insist on delivery of the inferior article. Fraud would +perhaps have made the contract valid at his option. Because, when +a man qualifies sensible words with others which he knows, on +secret grounds, are insensible when so applied, he may fairly be +taken to authorize his promisee to insist on the possible part of +his promise being performed, if the promisee is willing to forego +the rest. + +Take one more illustration like the last case. A policy of +insurance is issued on a certain building described in the policy +as a machine-shop. In fact the building is not a machine-shop, +but an organ factory, which is a greater risk. The contract is +void, not because of any misrepresentation, but, as before, +because two of its essential terms are repugnant, and their union +is insensible. /1/ + +Of course the principle of repugnancy last explained might be +stretched to apply to any inconsistency between the different +terms of a contract. It might be said, for instance, that if a +piece of gold is sold as eighteen-carat gold, and it is in fact +not so pure, or if a cow is sold as yielding an average of twelve +quarts of milk a day, and in fact she yields only six quarts, +there is no logical difference, [312] according to the +explanation which has just been offered, between those cases and +that of the barrel of salt sold for mackerel. Yet those bargains +would not be void. At the most, they would only be voidable, if +the buyer chose to throw them up. + +The distinctions of the law are founded on experience, not on +logic. It therefore does not make the dealings of men dependent +on a mathematical accuracy. Whatever is promised, a man has a +right to be paid for, if it is not given; but it does not follow +that the absence of some insignificant detail will authorize him +to throw up the contract, still less that it will prevent the +formation of a contract, which is the matter now under +consideration. The repugnant terms must both be very +important,--so important that the court thinks that, if either is +omitted, the contract would be different in substance from that +which the words of the parties seemed to express. + +A term which refers directly to an identification by the senses +has always this degree of importance. If a promise is made to +sell this cow, or this mackerel, to this man, whatever else may +be stricken from the contract, it can never be enforced except +touching this object and by this man. If this barrel of salt is +fraudulently sold for a barrel of mackerel, the buyer may perhaps +elect to take this barrel of salt if he chooses, but he cannot +elect to take another barrel of mackerel. If the seller is +introduced by the name B, and the buyer supposes him to be +another person of the same name, and under that impression +delivers his written promise to buy of B, the B to whom the +writing is delivered is the contractee, if any one is, and, +notwithstanding what has been said of the use of proper names, I +should suppose [313] a contract would be made. /1/ For it is +further to be said that, so far as by one of the terms of a +contract the thing promised or the promisee is identified by +sight and hearing, that term so far preponderates over all others +that it is very rare for the failure of any other element of +description to prevent the making of a contract. /2/ The most +obvious of seeming exceptions is where the object not in fact so +identified, but only its covering or wrapper. + +Of course the performance of a promise may be made conditional on +all the terms stipulated from the other side being complied with, +but conditions attaching to performance can never come into +consideration until a contract has been made, and so far the +question has been touching the existence of a contract in the +first instance. + +A different case may be suggested from any yet considered. +Instead of a repugnancy between offer and assent which prevents +an agreement, or between the terms of an agreement which makes it +insensible on its fact, there may be a like repugnancy between a +term of the contract and a previous representation of fact which +is not expressly made a part of the contract. The representation +may have been the chief inducement and very foundation of the +bargain. It may be more important than any of the expressed +terms, and yet the contract may have [314] been reduced to +writing in words which cannot fairly be construed to include it. +A vendor may have stated that barrels filled with salt contain +mackerel, but the contract may be only for the barrels and their +contents. An applicant for insurance may have misstated facts +essential to the risk, yet the policy may simply insure a certain +building or a certain life. It may be asked whether these +contracts are not void also. + +There might conceivably be cases in which, taking into account +the nature of the contract, the words used could be said to +embody the representation as a term by construction. For +instance, it might be said that the true and well-understood +purport of a contract of insurance is not, as the words seem to +say, to take the risk of any loss by fire or perils of the sea, +however great the risk may be, but to take a risk of a certain +magnitude, and no other, which risk has been calculated +mathematically from the statements of the party insured. The +extent of the risk taken is not specified in the policy, because +the old forms and established usage are otherwise, but the +meaning is perfectly understood. + +If this reasoning were adopted, there would be an equal +repugnancy in the terms of the contract, whether the nature of +the risk were written in the policy or fixed by previous +description. But, subject to possible exceptions of this kind, it +would seem that a contract would be made, and that the most that +could be claimed would be a right to rescind. Where parties +having power to bind themselves do acts and use words which are +fit to create an obligation, I take it that an obligation arises. +If there is a mistake as to a fact not mentioned in the contract, +it goes only to the motives for making the contract. But a [315] +contract is not prevented from being made by the mere fact that +one party would not have made it if he had known the truth. In +what cases a mistake affecting motives is a ground for avoidance, +does not concern this discussion, because the subject now under +consideration is when a contract is made, and the question of +avoiding or rescinding it presupposes that it has been made. + +I think that it may now be assumed that, when fraud, +misrepresentation, or mistake is said to make a contract void, +there is no new principle which comes in to set aside an +otherwise perfect obligation, but that in every such case there +is wanting one or more of the first elements which were explained +in the foregoing Lecture. Either there is no second party, or the +two parties say different things, or essential terms seemingly +consistent are really inconsistent as used. + +When a contract is said to be voidable, it is assumed that a +contract has been made, but that it is subject to being unmade at +the election of one party. This must be because of the breach of +some condition attached to its existence either expressly or by +implication. + +If a condition is attached to the contract's coming into being, +there is as yet no contract. Either party may withdraw, at will, +until the condition is determined. There is no obligation, +although there may be an offer or a promise, and hence there is +no relation between the parties which requires discussion here. +But some conditions seemingly arising out of a contract already +made are conditions of this sort. Such is always the case if the +condition of a promise lies within the control of the promisor's +own will. For instance, a promise to pay for clothes if made to +the customer's satisfaction, has been held in Massachusetts to +[316] make the promisor his own final judge. /1/ So interpreted, +it appears to me to be no contract at all, until the promisor's +satisfaction is expressed. His promise is only to pay if he sees +fit, and such a promise cannot be made a contract because it +cannot impose any obligation. /2/ If the promise were construed +to mean that the clothes should be paid for provided they were +such as ought to satisfy the promisor, /3/ and thus to make the +jury the arbiter, there would be a contract, because the promisor +gives up control over the event, but it would be subject to a +condition in the sense of the present analysis. + +The conditions which a contract may contain have been divided by +theorists into conditions precedent and conditions subsequent. +The distinction has even been pronounced of great importance. It +must be admitted that, if the course of pleading be taken as a +test, it is so. In some cases, the plaintiff has to state that a +condition has been performed in order to put the defendant to his +answer; in others, it is left to the defendant to set up that a +condition has been broken. + +In one sense, all conditions are subsequent; in another, all are +precedent. All are subsequent to the first stage of the +obligation. /4/ Take, for instance, the case of a promise to pay +for work if done to the satisfaction of an architect. The +condition is a clear case of what is called a condition +precedent. There can be no duty to pay until the architect is +satisfied. But there can be a [317] contract before that moment, +because the determination whether the promisor shall pay or not +is no longer within his control. Hence the condition is +subsequent to the existence of the obligation. + +On the other hand, every condition subsequent is precedent to the +incidence of the burden of the law. If we look at the law as it +would be regarded by one who had no scruples against doing +anything which he could do without incurring legal consequences, +it is obvious that the main consequence attached by the law to a +contract is a greater or less possibility of having to pay money. +The only question from the purely legal point of view is whether +the promisor will be compelled to pay. And the important moment +is that at which that point is settled. All conditions are +precedent to that. + +But all conditions are precedent, not only in this extreme sense, +but also to the existence of the plaintiff's cause of action. As +strong a case as can be put is that of a policy of insurance +conditioned to be void if not sued upon within one year from a +failure to pay as agreed. The condition does not come into play +until a loss has occurred, the duty to pay has been neglected, +and a cause of action has arisen. Nevertheless, it is precedent +to the plaintiff's cause of action. When a man sues, the question +is not whether he has had a cause of action in the past, but +whether he has one then. He has not one then, unless the year is +still running. If it were left for the defendant to set up the +lapse of the year, that would be due to the circumstance that the +order of pleading does not require a plaintiff to meet all +possible defences, and to set out a case unanswerable except by +denial. The point at which the law calls on the defendant for an +answer varies [318] in different cases. Sometimes it would seem +to be governed simply by convenience of proof, requiring the +party who has the affirmative to plead and prove it. Sometimes +there seems to be a reference to the usual course of events, and +matters belong to the defence because they are only exceptionally +true. + +The most logical distinction would be between conditions which +must be satisfied before a promise can be broken, and those +which, like the last, discharge the liability after a breach has +occurred. /1/ But this is of the slightest possible importance, +and it may be doubted whether another case like the last could be +found. + +It is much more important to mark the distinction between a +stipulation which only has the effect of confining a promise to +certain cases, and a condition properly so called. Every +condition, it is true, has this effect upon the promise to which +it is attached, so that, whatever the rule of pleading may be, +/2/ a promise is as truly kept and performed by doing nothing +where the condition of the stipulated act has been broken, as it +would have been by doing the act if the condition had been +fulfilled. But if this were all, every clause in a contract which +showed what the promisor did not promise would be a condition, +and the word would be worse than useless. The characteristic +feature is quite different. + +A condition properly so called is an event, the happening of +which authorizes the person in whose favor the condition is +reserved to treat the contract as if it had not been made,--to +avoid it, as is commonly said,--that is, to insist on both +parties being restored to the position in [319] which they stood +before the contract was made. When a condition operates as such, +it lets in an outside force to destroy the existing state of +things. For although its existence is due to consent of parties, +its operation depends on the choice of one of them. When a +condition is broken, the person entitled to insist on it may do +so if he chooses; but he may, if he prefers, elect to keep the +contract on foot. He gets his right to avoid it from the +agreement, but the avoidance comes from him. + +Hence it is important to distinguish those stipulations which +have this extreme effect from those which only interpret the +extent of a promise, or define the events to which it applies. +And as it has just been shown that a condition need not be +insisted on as such, we must further distinguish between its +operation by way of avoidance, which is peculiar to it, and its +incidental working by way of interpretation and definition, in +common with other clauses not conditions. + +This is best illustrated by taking a bilateral contract between A +and B, where A's undertaking is conditional on B's doing what he +promises to do, and where, after A has got a certain distance in +his task, B breaks his half of the bargain. For instance, A is +employed as a clerk by B, and is wrongfully dismissed in the +middle of a quarter. In favor of A, the contract is conditional +on B's keeping his agreement to employ him. Whether A insists on +the condition or not, he is not bound to do any more. /1/ So far, +the condition works simply by way of definition. It establishes +that A has not promised to act in the case which has happened. +But besides this, for which a condition [320] was not necessary, +A may take his choice between two courses. In the first place, he +may elect to avoid the contract. In that case the parties stand +as if no contract had been made, and A, having done work for B +which was understood not to be gratuitous, and for which no rate +of compensation has been fixed, can recover what the jury think +his services were reasonably worth. The contract no longer +determines the quid pro quo. But as an alternative course A may +stand by the contract if he prefers to do so, and sue B for +breaking it. In that case he can recover as part of his damages +pay at the contract rate for what he had done, as well as +compensation for his loss of opportunity to finish it. But the +points which are material for the present discussion are, that +these two remedies are mutually exclusive, /1/ one supposing the +contract to be relied on, the other that it is set aside, but +that A's stopping work and doing no more after B's breach is +equally consistent with either choice, and has in fact nothing to +do with the matter. + +One word should be added to avoid misapprehension. When it is +said that A has done all that he promised to do in the case which +has happened, it is not meant that he is necessarily entitled to +the same compensation as if he had done the larger amount of +work. B's promise in the case supposed was to pay so much a +quarter for services; and although the consideration of the +promise was the promise by A to perform them, the scope of it was +limited to the case of their being performed in fact. Hence A +could not simply wait till the end of his term, and then recover +the full amount which he would have had if the employment had +continued. Nor is he any more entitled to do so from [321] the +fact that it was B's fault that the services were not rendered. +B's answer to any such claim is perfect. He is only liable upon a +promise, and he in his turn only promised to pay in a case which +has not happened. He did promise to employ, however, and for not +doing that he is liable in damages. + +One or two more illustrations will be useful. A promises to +deliver, and B promises to accept and pay for, certain goods at a +certain time and place. When the time comes, neither party is on +hand. Neither would be liable to an action, and, according to +what has been said, each has done all that he promised to do in +the event which has happened, to wit, nothing. It might be +objected that, if A has done all that he is bound to do, he ought +to be able to sue B, since performance or readiness to perform +was all that was necessary to give him that right, and conversely +the same might be said of B. On the other hand, considering +either B or A as defendant, the same facts would be a complete +defence. The puzzle is largely one of words. + +A and B have, it is true, each performed all that they promised +to do at the present stage, because they each only promised to +act in the event of the other being ready and willing to act at +the same time. But the readiness and willingness, although not +necessary to the performance of either promise, and therefore not +a duty, was necessary in order to present a case to which the +promise of action on the other side would apply. Hence, although +A and B have each performed their own promise, they have not +performed the condition to their right of demanding more from the +other side. The performance of that condition is purely optional +until one side has brought it within the [322] scope of the +other's undertaking by performing it himself. But it is +performance in the latter sense, that is, the satisfying of all +conditions, as well as the keeping of his own promises, which is +necessary to give A or B a right of action. + +Conditions may be created by the very words of a contract. Of +such cases there is nothing to be said, for parties may agree to +what they choose. But they may also be held to arise by +construction, where no provision is made in terms for rescinding +or avoiding the contract in any case. The nature of the +conditions which the law thus reads in needs explanation. It may +be said, in a general way, that they are directed to the +existence of the manifest grounds for making the bargain on the +side of the rescinding party, or the accomplishment of its +manifest objects. But that is not enough. Generally speaking, the +disappointment must be caused by the wrong-doing of the person on +the other side; and the most obvious cases of such wrong-doing +are fraud and misrepresentation, or failure to perform his own +part of the contract. + +Fraud and misrepresentation thus need to be considered once more +in this connection. I take the latter first. In dealing with it +the first question which arises is whether the representation is, +or is not, part of the contract. If the contract is in writing +and the representation is set out on the face of the paper, it +may be material or immaterial, but the effect of its untruth will +be determined on much the same principles as govern the failure +to perform a promise on the same side. If the contract is made by +word of mouth, there may be a large latitude in connecting words +of representation with later words of promise; but when they are +determined to be a part of the contract [323], the same +principles apply as if the whole were in writing. + +The question now before us is the effect of a misrepresentation +which leads to, but is not a part of, the contract. Suppose that +the contract is in writing, but does not contain it, does such a +previous misrepresentation authorize rescission in any case? and +if so, does it in any case except where it goes to the height of +fraud? The promisor might say, It does not matter to me whether +you knew that your representation was false or not; the only +thing I am concerned with is its truth. If it is untrue, I suffer +equally whether you knew it to be so or not. But it has been +shown, in an earlier Lecture, that the law does not go on the +principle that a man is answerable for all the consequences of +all his acts. An act is indifferent in itself. It receives its +character from the concomitant facts known to the actor at the +time. If a man states a thing reasonably believing that he is +speaking from knowledge, it is contrary to the analogies of the +law to throw the peril of the truth upon him unless he agrees to +assume that peril, and he did not do so in the case supposed, as +the representation was not made part of the contract. + +It is very different when there is fraud. Fraud may as well lead +to the making of a contract by a statement outside the contract +as by one contained in it. But the law would hold the contract +not less conditional on good faith in one case than in the other. + +To illustrate, we may take a somewhat extreme case. A says to B, +I have not opened these barrels myself, but they contain No. 1 +mackerel: I paid so much for them to so and so, naming a +well-known dealer. Afterwards A writes B, I will sell the barrels +which you saw, and their [324] contents, for so much; and B +accepts. The barrels turn out to contain salt. I suppose the +contract would be binding if the statements touching the contents +were honest, and voidable if they were fraudulent. + +Fraudulent representations outside a contract can never, it would +seem, go to anything except the motives for making it. If outside +the contract, they cannot often affect its interpretation. A +promise in certain words has a definite meaning, which the +promisor is presumed to understand. If A says to B, I promise you +to buy this barrel and its contents, his words designate a person +and thing identified by the senses, and they signify nothing +more. There is no repugnancy, and if that person is ready to +deliver that thing, the purchaser cannot say that any term in the +contract itself is not complied with. He may have been +fraudulently induced to believe that B was another B, and that +the barrel contained mackerel; but however much his belief on +those points may have affected his willingness to make the +promise, it would be somewhat extravagant to give his words a +different meaning on that account. "You" means the person before +the speaker, whatever his name, and "contents" applies to salt, +as well as to mackerel. + +It is no doubt only by reason of a condition construed into the +contract that fraud is a ground of rescission. Parties could +agree, if they chose, that a contract should be binding without +regard to truth or falsehood outside of it on either part. + +But, as has been said before in these Lectures, although the law +starts from the distinctions and uses the language of morality, +it necessarily ends in external standards not dependent on the +actual consciousness of the individual. [325] So it has happened +with fraud. If a man makes a representation, knowing facts which +by the average standard of the community are sufficient to give +him warning that it is probably untrue, and it is untrue, he is +guilty of fraud in theory of law whether he believes his +statement or not. The courts of Massachusetts, at least, go much +further. They seem to hold that any material statement made by a +man as of his own knowledge, or in such a way as fairly to be +understood as made of his own knowledge, is fraudulent if untrue, +irrespective of the reasons he may have had for believing it and +for believing that he knew it. /1/ It is clear, therefore, that a +representation may be morally innocent, and yet fraudulent in +theory of law. Indeed, the Massachusetts rule seems to stop +little short of the principle laid down by the English courts of +equity, which has been criticised in an earlier Lecture, /2/ +since most positive affirmations of facts would at least warrant +a jury in finding that they were reasonably understood to be made +as of the party's own knowledge, and might therefore warrant a +rescission if they turned out to be untrue. The moral phraseology +has ceased to be apposite, and an external standard of +responsibility has been reached. But the starting-point is +nevertheless fraud, and except on the ground of fraud, as defined +by law, I do not think that misrepresentations before the +contract affect its validity, although they lead directly to its +making. But neither the contract nor the implied condition calls +for the existence of the facts as to which the false +representations were made. They call only for the absence of +certain false representations. The condition is not that the +promisee shall be a certain other B, or that the contents of the +barrel shall be mackerel, [326] but that the promisee has not +lied to him about material facts. + +Then the question arises, How do you determine what facts are +material? As the facts are not required by the contract, the only +way in which they can be material is that a belief in their being +true is likely to have led to the making of the contract. + +It is not then true, as it is sometimes said, that the law does +not concern itself with the motives for making contracts. On the +contrary, the whole scope of fraud outside the contract is the +creation of false motives and the removal of true ones. And this +consideration will afford a reasonable test of the cases in which +fraud will warrant rescission. It is said that a fraudulent +representation must be material to have that effect. But how are +we to decide whether it is material or not? If the above argument +is correct, it must be by an appeal to ordinary experience to +decide whether a belief that the fact was as represented would +naturally have led to, or a contrary belief would naturally have +prevented, the making of the contract. + +If the belief would not naturally have had such an effect, either +in general or under the known circumstances of the particular +case, the fraud is immaterial. If a man is induced to contract +with another by a fraudulent representation of the latter that he +is a great-grandson of Thomas Jefferson, I do not suppose that +the contract would be voidable unless the contractee knew that, +for special reasons, his lie would tend to bring the contract +about. + +The conditions or grounds for avoiding a contract which have been +dealt with thus far are conditions concerning the conduct of the +parties outside of the itself. [327] Still confining myself to +conditions arising by construction of law,--that is to say, not +directly and in terms attached to a promise by the literal +meaning of the words in which it is expressed,--I now come to +those which concern facts to which the contract does in some way +refer. + +Such conditions may be found in contracts where the promise is +only on one side. It has been said that where the contract is +unilateral, and its language therefore is all that of the +promisor, clauses in his favor will be construed as conditions +more readily than the same words in a bilateral contract; indeed, +that they must be so construed, because, if they do not create a +condition, they do him no good, since ex hypothesi they are not +promises by the other party. /1/ How far this ingenious +suggestion has had a practical effect on doctrine may perhaps be +doubted. + +But it will be enough for the purposes of this general survey to +deal with bilateral contracts, where there are undertakings on +both sides, and where the condition implied in favor of one party +is that the other shall make good what he on his part has +undertaken. + +The undertakings of a contract may be for the existence of a fact +in the present or in the future. They can be promises only in the +latter case; but in the former, they be equally essential terms +in the bargain. + +Here again we come on the law of representations, but in a new +phase. Being a part of the contract, it is always possible that +their truth should make a condition of the contract wholly +irrespective of any question of fraud. And it often is so in +fact. It is not, however, every representation embodied in the +words used on one side which will [328] make a condition in favor +of the other party. Suppose A agrees to sell, and B agrees to +buy, "A's seven-year-old sorrel horse Eclipse, now in the +possession of B on trial," and in fact the horse is +chestnut-colored, not sorrel. I do not suppose that B could +refuse to pay for the horse on that ground. If the law were so +foolish as to aim at merely formal consistency, it might indeed +be said that there was as absolute a repugnancy between the +different terms of this contract as in the ease of an agreement +to sell certain barrels of mackerel, where the barrels turned out +to contain salt. If this view were adopted, there would not be a +contract subject to a condition, there would be no contract at +all. But in truth there is a contract, and there is not even a +condition. As has been said already, it is not every repugnancy +that makes a contract void, and it is not every failure in the +terms of the counter undertaking that makes it voidable. Here it +plainly appears that the buyer knows exactly what he is going to +get, and therefore that the mistake of color has no bearing on +the bargain. /1/ + +If, on the other hand, a contract contained a representation +which was fraudulent, and which misled the party to whom it was +made, the contract would be voidable on the same principles as if +the representation had been made beforehand. But words of +description in a contract are very frequently held to amount to +what is sometimes called a warranty, irrespective of fraud. +Whether they do so or not is a question to be determined by the +court on grounds of common sense, looking to the meaning of the +words, the importance in the transaction of the facts [329] which +the words convey, and so forth. But when words of description are +determined to be a warranty, the meaning of the decision is not +merely that the party using them binds himself to answer for +their truth, but that their truth is a condition of the contract. + +For instance, in a leading case /1/ the agreement was that the +plaintiff's ship, then in the port of Amsterdam, should, with all +possible despatch, proceed direct to Newport, England, and there +load a cargo of coals for Hong Kong. At the date of the +charter-party the vessel was not in Amsterdam, but she arrived +there four days later. The plaintiff had notice that the +defendant considered time important. It was held that the +presence of the vessel in the port of Amsterdam at the date of +the contract was a condition, the breach of which entitled the +defendant to refuse to load, and to rescind the contract. If the +view were adopted that a condition must be a future event, and +that a promise purporting to be conditional on a past or present +event is either absolute or no promise at all, it would follow +that in this case the defendant had never made a promise. /2/ He +had only promised if circumstances existed which did not exist. I +have already stated my objections to this way of looking at such +cases, /2/ and will only add that the courts, so far as I am +aware, do not sanction it, and certainly did not in this +instance. + +There is another ground for holding the charter-party void and no +contract, instead of regarding it as only voidable, which is +equally against authority, which nevertheless I have never been +able to answer wholly to my satisfaction. In the case put, the +representation of the lessor of the vessel [330] concerned the +vessel itself, and therefore entered into the description of the +thing the lessee agreed to take. I do not quite see why there is +not as fatal a repugnancy between the different terms of this +contract as was found in that for the sale of the barrels of salt +described as containing mackerel. Why is the repugnancy between +the two terms,--first, that the thing sold is the contents of +these barrels, and, second, that it is mackerel--fatal to the +existence of a contract? It is because each of those terms goes +to the very root and essence of the contract, /1/--because to +compel the buyer to take something answering to one, but not to +the other requirement, would be holding him to do a substantially +different thing from what he promised, and because a promise to +take one and the same thing answering to both requirements is +therefore contradictory in a substantial matter. It has been seen +that the law does not go on any merely logical ground, and does +not hold that every slight repugnancy will make a contract even +voidable. But, on the other hand, when the repugnancy is between +terms which are both essential, it is fatal to the very existence +of the contract. How then do we decide whether a given term is +essential? Surely the best way of finding out is by seeing how +the parties have dealt with it. For want of any expression on +their part we may refer to the speech and dealings of every day, +/2/ and say that, if its absence would make the subject-matter a +different thing, its presence is essential to the existence of +the agreement. But the parties may agree that anything, however +trifling, shall be essential, as well [331] as that anything, +however important, shall not be; and if that essential is part of +the contract description of a specific thing which is also +identified by reference to the senses, how can there be a +contract in its absence any more than if the thing is in popular +speech different in kind from its description? The qualities that +make sameness or difference of kind for the purposes of a +contract are not determined by Agassiz or Darwin, or by the +public at large, but by the will of the parties, which decides +that for their purposes the characteristics insisted on are such +and such. /1/1 Now, if this be true, what evidence can there be +that a certain requirement is essential, that without it the +subject-matter will be different in kind from the description, +better than that one party has required and the other given a +warranty of its presence? Yet the contract description of the +specific vessel as now in the port of Amsterdam, although held to +be an implied warranty, does not seem to have been regarded as +making the contract repugnant and void, but only as giving the +defendant the option of avoiding it. /2/ Even an express warranty +of quality in sales does not have this effect, and in England, +indeed, it does not allow the purchaser to rescind in case of +breach. On this last point the law of Massachusetts is different. + +The explanation has been offered of the English doctrine with +regard to sales, that, when the title has passed, the purchaser +has already had some benefit from the contract, and therefore +cannot wholly replace the seller in statu quo, as must be done +when a contract is rescinded. /3/ This reasoning [332] seems +doubtful, even to show that the contract is not voidable, but has +no bearing on the argument that it is void. For if the contract +is void, the title does not pass. + +It might be said that there is no repugnancy in the charterer's +promise, because he only promises to load a certain ship, and +that the words "now in the port of Amsterdam" are merely matter +of history when the time for loading comes, and no part of the +description of the vessel which he promised to load. But the +moment those words are decided to be essential they become part +of the description, and the promise is to load a certain vessel +which is named the Martaban, and which was in the port of +Amsterdam at the date of the contract. So interpreted, it is +repugnant. + +Probably the true solution is to be found in practical +considerations. At any rate, the fact is that the law has +established three degrees in the effect of repugnancy. If one of +the repugnant terms is wholly insignificant, it is simply +disregarded, or at most will only found a claim for damages. The +law would be loath to hold a contract void for repugnancy in +present terms, when if the same terms were only promised a +failure of one of them would not warrant a refusal to perform on +the other side. If, on the other hand, both are of the extremest +importance, so that to enforce the rest of the promise or bargain +without one of them would not merely deprive one party of a +stipulated incident, but would force a substantially different +bargain on him, the promise will be void. There is an +intermediate class of cases where it is left to the disappointed +party to decide. But as the lines between the three are of this +vague kind, it is not surprising that they have been differently +drawn in different jurisdictions. + +[333] The examples which have been given of undertakings for a +present state of facts have been confined to those touching the +present condition of the subject-matter of the contract. Of +course there is no such limit to the scope of their employment. A +contract may warrant the existence of other facts as well, and +examples of this kind probably might be found or imagined where +it would be clear that the only effect of the warranty was to +attach a condition to the contract, in favor of the other side, +and where the question would be avoided whether there was not +something more than a condition,--a repugnancy which prevented +the formation of any contract at all. But the preceding +illustrations are enough for the present purpose. + +We may now pass from undertakings that certain facts are true at +the time of making the contract, to undertakings that certain +facts shall be true at some later time,--that is, to promises +properly so called. The question is when performance of the +promise on one side is a condition to the obligation of the +contract on the other. In practice, this question is apt to be +treated as identical with another, which, as has been shown +earlier, is a distinct point; namely, when performance on one +side is a condition of the right to call for performance on the +other. It is of course conceivable that a promise should be +limited to the case of performance of the things promised on the +other side, and yet that a failure of the latter should not +warrant a rescission of the contract. Wherever one party has +already received a substantial benefit under a contract of a kind +which cannot be restored, it is too late to rescind, however +important a breach may be committed later by the other side. Yet +he may be [334] excused from going farther. Suppose a contract is +made for a month's labor, ten dollars to be paid down, not to be +recovered except in case of rescission for the laborer's fault, +and thirty dollars at the end of the month. If the laborer should +wrongfully stop work at the end of a fortnight, I do not suppose +that the contract could be rescinded, and that the ten dollars +could be recovered as money had and received; /1/ but, on the +other hand, the employer would not be bound to pay the thirty +dollars, and of course he could sue for damages on the contract. +/2/ + +But, for the most part, a breach of promise which discharges the +promisee from further performance on his side will also warrant +rescission, so that no great harm is done by the popular +confusion of the two questions. Where the promise to perform on +one side is limited to the case of performance on the other, the +contract is generally conditioned on it also. In what follows, I +shall take up the cases which I wish to notice without stopping +to consider whether the contract was in a strict sense +conditioned on performance of the promise on one side, or whether +the true construction was merely that the promise on the other +side was limited to that event. + +Now, how do we settle whether such a condition exists? It is easy +to err by seeking too eagerly for simplicity, and by striving too +hard to reduce all cases to artificial presumptions, which are +less obvious than the decisions which they are supposed to +explain. The foundation of the whole matter is, after all, good +sense, as the courts have often said. The law means to carry out +the intention of the parties, and, so far as they have not +provided [335] for the event which has happened, it has to say +what they naturally would have intended if their minds had been +turned to the point. It will be found that decisions based on the +direct implications of the language used, and others based upon a +remoter inference of what the parties must have meant, or would +have said if they had spoken, shade into each other by +imperceptible degrees. + +Mr. Langdell has called attention to a very important principle, +and one which, no doubt, throws light on many decisions. /1/ This +is, that, where you have a bilateral contract, while the +consideration of each promise is the counter promise, yet prima +facie the payment for performance of one is performance of the +other. The performance of the other party is what each means to +have in return for his own. If A promises a barrel of flour to B, +and B promises him ten dollars for it, A means to have the ten +dollars for his flour, and B means to have the flour for his ten +dollars. If no time is set for either act, neither can call on +the other to perform without being ready at the same time +himself. + +But this principle of equivalency is not the only principle to be +drawn even from the form of contracts, without considering their +subject-matter, and of course it is not offered as such in Mr. +Langdell's work. + +Another very clear one is found in contracts for the sale or +lease of a thing, and the like. Here the qualities or +characteristics which the owner promises that the thing furnished +shall possess, go to describe the thing which the buyer promises +to accept. If any of the promised traits are wanting in the thing +tendered, the buyer may refuse to accept, not merely on the +ground that he has not [336] been offered the equivalent for +keeping his promise, but also on the ground that he never +promised to accept what is offered him. /1/ It has been seen +that, where the contract contains a statement touching the +condition of the thing at an earlier time than the moment for its +acceptance, the past condition may not always be held to enter +into the description of the thing to be accepted. But no such +escape is possible here. Nevertheless there are limits to the +right of refusal even in the present class of cases. If the thing +promised is specific, the preponderance of that part of the +description which identifies the object by reference to the +senses is sometimes strikingly illustrated. One case has gone so +far as to hold that performance of an executory contract to +purchase a specific thing cannot be refused because it fails to +come up to the warranted quality. /2/ + +Another principle of dependency to be drawn from the form of the +contract itself is, that performance of the promise on one side +may be manifestly intended to furnish the means for performing +the promise on the other. If a tenant should promise to make +repairs, and the landlord should promise to furnish him wood for +the purpose, it is believed that at the present day, whatever may +have been the old decisions, the tenant's duty to repair would be +dependent upon the landlord's furnishing the material when +required. /3/ + +[337] Another case of a somewhat exceptional kind is where a +party to a bilateral contract agrees to do certain things and to +give security for his performance. Here it is manifest good-sense +to hold giving the security a condition of performance on the +other side, if it be possible. For the requirement of security +shows that the party requiring it was not content to rely on the +simple promise of the other side, which he would be compelled to +do if he had to perform before the security was given, and thus +the very object of requiring it would be defeated. /1/ + +This last case suggests what is very forcibly impressed on any +one who studies the cases,--that, after all, the most important +element of decision is not any technical, or even any general +principle of contracts, but a consideration of the nature of the +particular transaction as a practical matter. A promises B to do +a day's work for two dollars, and B promises A to pay two +dollars for a day's work. There the two promises cannot be +performed at the same time. The work will take all day, the +payment half a minute. How are you to decide which is to be done +first, that is to say, which promise is dependent upon +performance on the other side? It is only by reference to the +habits of the community and to convenience. It is not enough to +say that on the principle of equivalency a man is not presumed +to intend to pay for a thing until he has it. The work is +payment for the money, as much as the [338] money for the work, +and one must be paid in advance. The question is, why, if one +man is not presumed to intend to pay money until he has money's +worth, the other is presumed to intend to give money's worth +before he has money. An answer cannot be obtained from any +general theory. The fact that employers, as a class, can be +trusted for wages more safely than the employed for their labor, +that the employers have had the power and have been the law-makers, +or other considerations, it matters not what, have determined +that the work is to be done first. But the grounds of +decision are purely practical, and can never be elicited from +grammar or from logic. + +A reference to practical considerations will be found to run all +through the subject. Take another instance. The plaintiff +declared on a mutual agreement between himself and the defendant +that he would sell, and the defendant would buy, certain Donskoy +wool, to be shipped by the plaintiff at Odessa, and delivered in +England. Among the stipulations of the contract was one, that the +names of the vessels should be declared as soon as the wools were +shipped. The defence was, that the wool was bought, with the +knowledge of both parties, for the purpose of reselling it in the +course of the defendant's business; that it was an article of +fluctuating value, and not salable until the names of the vessels +in which it was shipped should have been declared according to +the contract, but that the plaintiff did not declare the names of +the vessels as agreed. The decision of the court was given by one +of the greatest technical lawyers that ever lived, Baron Parke; +yet he did not dream of giving any technical or merely logical +reason for the decision, but, after stating in the above words +the facts which were deemed material to the question [339] +whether declaring the names of the vessels was a condition to the +duty to accept, stated the ground of decision thus: "Looking at +the nature of the contract, and the great importance of it to the +object with which the contract was entered into with the +knowledge of both parties, we think it was a condition +precedent." /1/ + +[340] + + + + +LECTURE X. -- SUCCESSIONS AFTER DEATH. + +In the Lecture on Possession, I tried to show that the notion of +possessing a right as such was intrinsically absurd. All rights +are consequences attached to filling some situation of fact. A +right which may be acquired by possession differs from others +simply in being attached to a situation of such a nature that it +may be filled successively by different persons, or by any one +without regard to the lawfulness of his doing so, as is the case +where the situation consists in having a tangible object within +one's power. + +When a right of this sort is recognized by the law, there is no +difficulty in transferring it; or, more accurately, there is no +difficulty in different persons successively enjoying similar +rights in respect of the subject-matter. If A, being the +possessor of a horse or a field, gives up the possession to B, +the rights which B acquires stand on the same ground as A's did +before. The facts from which A's rights sprang have ceased to be +true of A, and are now true of B. The consequences attached by +the law to those facts now exist for B, as they did for A before. +The situation of fact from which the rights spring is continuing +one, and any one who occupies it, no matter how, has the rights +attached to it. But there is no possession possible of a +contract. The [341] fact that a consideration was given yesterday +by A to B, and a promise received in return, cannot be laid hold +of by X, and transferred from A to himself. The only thing can be +transferred is the benefit or burden of the promise, and how can +they be separated from the facts which gave rise to them? How, in +short, can a man sue or be sued on a promise in which he had no +part? + +Hitherto it has been assumed, in dealing with any special right +or obligation, that the facts from which it sprung were true of +the individual entitled or bound. But it often happens, +especially in modern law, that a person acquires and is allowed +to enforce a special right, although that facts which give rise +to it are not true of him, or are true of him only in part. One +of the chief problems of the law is to explain the machinery by +which this result has been brought to pass. + +It will be observed that the problem is not coextensive with the +whole field of rights. Some rights cannot be transferred by any +device or contrivance; for instance, a man's right a to bodily +safety or reputation. Others again are incident to possession, +and within the limits of that conception no other is necessary. +As Savigny said, "Succession does not apply to possession by +itself." /1/ + +But the notion of possession will carry us but a very little way +in our understanding of the modern theory of transfer. That +theory depends very largely upon the notion of succession, to use +the word just quoted from Savigny, and accordingly successions +will be the subject of this and the following Lecture. I shall +begin by explaining the theory of succession to persons deceased, +and after that is done shall pass to the theory of transfer +between living [342] people, and shall consider whether any +relation can be established between the two. + +The former is easily shown to be founded upon a fictitious +identification between the deceased and his successor. And as a +first step to the further discussion, as well as for its own +sake, I shall briefly state the evidence touching the executor, +the heir, and the devisee. In order to understand the theory of +our law with regard to the first of these, at least, scholars are +agreed that it is necessary to consider the structure and +position of the Roman family as it was in the infancy of Roman +society. + +Continental jurists have long been collecting the evidence that, +in the earlier periods of Roman and German law alike, the unit of +society was the family. The Twelve Tables of Rome still recognize +the interest of the inferior members of the family in the family +property. Heirs are called sui heredes, that is, heirs of +themselves or of their own property, as is explained by Gaius. +/1/ Paulus says that they are regarded as owners in a certain +sense, even in the lifetime of their father, and that after his +death they do not so much receive an inheritance as obtain the +full power of dealing with their property. /2/ + +Starting from this point it is easy to understand the [343] +succession of heirs to a deceased paterfamilias in the Roman +system. If the family was the owner of the property administered +by a paterfamilias, its rights remained unaffected by the death +of its temporary head. The family continued, although the head +died. And when, probably by a gradual change, /1/ the +paterfamilias came to be regarded as owner, instead of a simple +manager of the family rights, the nature and continuity of those +rights did not change with the title to them. The familia +continued to the heirs as it was left by the ancestor. The heir +succeeded not to the ownership of this or that thing separately, +but to the total hereditas or headship of the family with certain +rights of property as incident, /2/ and of course he took this +headship, or right of representing the family interests, subject +to the modifications effected by the last manager. + +The aggregate of the ancestor's rights and duties, or, to use the +technical phrase, the total persona sustained by him, was easily +separated from his natural personality. For this persona was but +the aggregate of what had formerly been family rights and duties, +and was originally sustained by any individual only as the family +head. Hence it was said to be continued by the inheritance, /3/ +and when the heir assumed it he had his action in respect of +injuries previously committed. /4/ + +Thus the Roman heir came to be treated as identified with his +ancestor for the purposes of the law. And thus it is clear how +the impossible transfers which I seek to explain were +accomplished in that instance. Rights to which B [344] as B could +show no title, he could readily maintain under the fiction that +he was the same person as A, whose title was not denied. + +It is not necessary at this point to study family rights in the +German tribes. For it is not disputed that the modern executor +derives his characteristics from the Roman heir. Wills also were +borrowed from Rome, and were unknown to the Germans of Tacitus. +/1/ Administrators were a later imitation of executors, +introduced by statute for cases where there was no will, or +where, for any other reason, executors were wanting. + +The executor has the legal title to the whole of the testator's +personal estate, and, generally speaking, the power of +alienation. Formerly he was entitled to the undistributed +residue, not, it may fairly be conjectured, as legatee of those +specific chattels, but because he represented the person of the +testator, and therefore had all the rights which the testator +would have had after distribution if alive. The residue is +nowadays generally bequeathed by the will, but it is not even now +regarded as a specific gift of the chattels remaining undisposed +of, and I cannot help thinking that this doctrine echoes that +under which the executor took in former times. + +No such rule has governed residuary devises of real estate, which +have always been held to be specific in England down to the +present day. So that, if a devise of land should fail, that land +would not be disposed of by the residuary clause, but would +descend to the heir as if there had been no will. + +Again, the appointment of an executor relates back to the date of +the testator's death. The continuity of person [345] is preserved +by this fiction, as in Rome it was by personifying the +inheritance ad interim. + +Enough has been said to show the likeness between our executor +and the Roman heir. And bearing in mind what was said about the +heres, it will easily be seen how it came to be said, as it often +was in the old books, that the executor "represents the person of +his testator." /1/ The meaning of this feigned identity has been +found in history, but the aid which it furnished in overcoming a +technical difficulty must also be appreciated. If the executor +represents the person of the testator, there is no longer any +trouble in allowing him to sue or be sued on his testator's +contracts. In the time of Edward III., when an action of covenant +was brought against executors, Persay objected: "I never heard +that one should have a writ of covenant against executors, nor +against other person but the very one who made the covenant, for +a man cannot oblige another person to a covenant by his deed +except him who was party to the covenant." /2/ But it is useless +to object that the promise sued upon was made by A, the testator, +not by B, the executor, when the law says that for this purpose B +is A. Here then is one class of cases in which a transfer is +accomplished by the help of a fiction, which shadows, as fictions +so often do, the facts of an early stage of society, and which +could hardly have been invented had these facts been otherwise. + +Executors and administrators afford the chief, if not the only, +example of universal succession in the English [346] law. But +although they succeed per universitatem, as has been explained, +they do not succeed to all kinds of property. The personal estate +goes to them, but land takes another course. All real estate not +disposed of by will goes to the heir, and the rules of +inheritance are quite distinct from those which govern the +distribution of chattels. Accordingly, the question arises +whether the English heir or successor to real estate presents the +same analogies to the Roman heres as the executor. + +The English heir is not a universal successor. Each and every +parcel of land descends as a separate and specific thing. +Nevertheless, in his narrower sphere he unquestionably represents +the person of his ancestor. Different opinions have been held as +to whether the same thing was true in early German law. Dr. +Laband says that it was; /1/ Sohm takes the opposite view. /2/ It +is commonly supposed that family ownership, at least of land, +came before that of individuals in the German tribes, and it has +been shown how naturally representation followed from a similar +state of things in Rome. But it is needless to consider whether +our law on this subject is of German or Roman origin, as the +principle of identification has clearly prevailed from the time +of Glanvill to the present day. If it was not known to the +Germans, it is plainly accounted for by the influence of the +Roman law. If there was anything of the sort in the Salic law, it +was no doubt due to natural causes similar to those which gave +rise to the principle at Rome. But in either event I cannot doubt +that the modern doctrine has taken a good deal of its form, and +perhaps some of its substance, from the mature system [347] of +the civilians, in whose language it was so long expressed. For +the same reasons that have just been mentioned, it is also +needless to weigh the evidence of the Anglo-Saxon sources, +although it seems tolerably clear from several passages in the +laws that there was some identification. /1/ + +As late as Bracton, two centuries after the Norman conquest, the +heir was not the successor to lands alone, but represented his +ancestor in a much more general sense, as will be seen directly. +The office of executor, in the sense of heir, was unknown to the +Anglo-Saxons, /2/ and even in Bracton's time does not seem to +have been what it has since become. There is, therefore, no need +to go back further than to the early Norman period, after the +appointment of executors had become common, and the heir was more +nearly what he is now. + +When Glanvill wrote, a little more than a century after the +Conquest, the heir was bound to warrant the reasonable gifts of +his ancestor to the grantees and their heirs; /3/ and if the +effects of the ancestor were insufficient to pay his debts, the +heir was bound to make up the deficiency from his own property. +/4/ Neither Glanvill nor his Scotch imitator, the Regiam +Majestatem, /5/ limits the liability to the amount of property +inherited from the same source. This makes the identification of +heir and ancestor as complete as that of the Roman law before +such a limitation was introduced by Justinian. On the other hand, +a century [348] later, it distinctly appears from Bracton, /1/ +that the heir was only bound so far as property had descended to +him, and in the early sources of the Continent, Norman as well as +other, the same limitation appears. /2/ The liabilities of the +heir were probably shrinking. Britton and Fleta, the imitators of +Bracton, and perhaps Bracton himself, say that an heir is not +bound to pay his ancestor's debt, unless he be thereto especially +bound by the deed of his ancestor. /3/ The later law required +that the heir should be mentioned if he was to be held. + +But at all events the identification of heir and ancestor still +approached the nature of a universal succession in the time of +Bracton, as is shown by another statement of his. He asks if the +testator can bequeath his rights of action, and answers, No, so +far as concerns debts not proved and recovered in the testator's +life. But actions of that sort belong to the heirs, and must be +sued in the secular court; for before they are so recovered in +the proper court, the executor cannot proceed for them in the +ecclesiastical tribunal. /4/ + +This shows that the identification worked both ways. The heir was +liable for the debts due from his ancestor, and he could recover +those which were due to him, until [349] the executor took his +place in the King's Courts, as well as in those of the Church. +Within the limits just explained the heir was also bound to +warrant property sold by his ancestor to the purchaser and his +heirs. /1/ It is not necessary, after this evidence that the +modern heir began by representing his ancestor generally, to seek +for expressions in later books, since his position has been +limited. But just as we have seen that the executor is still said +to represent the person of his testator, the heir was said to +represent the person of his ancestor in the time of Edward I. /2/ +So, at a much later date, it was said that "the heir is in +representation in point of taking by inheritance eadam persona +cum antecessore," /3/ the same persona as his ancestor. + +A great judge, who died but a few years ago, repeats language +which would have been equally familiar to the lawyers of Edward +or of James. Baron Parke, after laying down that in general a +party is not required to make profert of an instrument to the +possession of which he is not entitled, says that there is an +exception "in the cases of heir and executor, who may plead a +release to the ancestor or testator whom they respectively +represent; so also with respect to several tortfeasors, for in +all these cases there is a privity between the parties which +constitutes an identity of person." /4/ + +But this is not all. The identity of person was carried [350] +farther still. If a man died leaving male children, and owning +land in fee, it went to the oldest son alone; but, if he left +only daughters, it descended to them all equally. In this case +several individuals together continued the persona of their +ancestor. But it was always laid down that they were but one +heir. /1/ For the purpose of working out this result, not only +was one person identified with another, but several persons were +reduced to one, that they might sustain a single persona. + +What was the persona? It was not the sum of all the rights and +duties of the ancestor. It has been seen that for many centuries +his general status, the sum of all his rights and duties except +those connected with real property, has been taken up by the +executor or administrator. The persona continued by the heir was +from an early day confined to real estate in its technical sense; +that is, to property subject to feudal principles, as +distinguished from chattels, which, as Blackstone tells us, /2/ +include whatever was not a feud. + +But the heir's persona was not even the sum of all the ancestor's +rights and duties in connection with real estate. It has been +said already that every fee descends specifically, and not as +incident to a larger universitas. This appears not so much from +the fact that the rules of descent governing different parcels +might be different, /3/ so that the same person would not be heir +to both, as from the very nature of feudal property. Under the +feudal system in its vigor, the holding of land was only one +[351] incident of a complex personal relation. The land was +forfeited for a failure to render the services for which it was +granted; the service could be renounced for a breach of +correlative duties on the part of the lord. /1/ It rather seems +that, in the beginning of the feudal period under Charlemagne, a +man could only hold land of one lord. /2/ Even when it had become +common to hold of more than one, the strict personal relation was +only modified so far as to save the tenant from having to perform +inconsistent services. Glanvill and Bracton /3/ a tell us that a +tenant holding of several lords was to do homage for each fee, +but to reserve his allegiance for the lord of whom he held his +chief estate; but that, if the different lords should make war +upon each other, and the chief lord should command the tenant to +obey him in person, the tenant ought to obey, saving the service +due to the other lord for the fee held of him. + +We see, then, that the tenant had a distinct persona or status in +respect of each of the fees which he held. The rights and duties +incident to one of them had no relation to the rights and duties +incident to another. A succession to one had no connection with +the succession to another. Each succession was the assumption of +a distinct personal relation, in which the successor was to be +determined by the terms of the relation in question. + +The persona which we are seeking to define is the estate. Every +fee is a distinct persona, a distinct hereditas, or inheritance, +as it has been called since the time of Bracton. We have already +seen that it may be sustained by more [352] than one where there +are several heirs, as well as by one, just as a corporation may +have more or less members. But not only may it be divided +lengthwise, so to speak, among persons interested in the same way +at the same time: it may also be cut across into successive +interests, to be enjoyed one after another. In technical +language, it may be divided into a particular estate and +remainders. But they are all parts of the same fee, and the same +fiction still governs them. We read in an old case that "he in +reversion and particular tenant are but one tenant." /1/ This is +only a statement of counsel, to be sure; but it is made to +account for a doctrine which seems to need the explanation, to +the effect that, after the death of the tenant for life, he in +reversion might have error or attaint on an erroneous judgment or +false verdict given against the tenant for life. /2/ + +To sum up the results so far, the heir of modern English law gets +his characteristic features from the law as it stood soon after +the Conquest. At that time he was a universal successor in a very +broad sense. Many of his functions as such were soon transferred +to the executor. The heir's rights became confined to real +estate, and his liabilities to those connected with real estate, +and to obligations of his ancestor expressly binding him. The +succession to each fee or feudal inheritance is distinct, not +part of the sum of all the ancestor's rights regarded as one +whole. But to this day the executor in his sphere, and the heir +in his, represent the person of the deceased, and are treated as +if they were one with him, for the purpose of settling their +rights and obligations. + +The bearing which this has upon the contracts of the [353] +deceased has been pointed out. But its influence is not confined +to contract; it runs through everything. The most striking +instance, however, is the acquisition of prescriptive rights. +Take the case of a right of way. A right of way over a neighbor's +land can only be acquired by grant, or by using it adversely for +twenty years. A man uses a way for ten years, and dies. Then his +heir uses it ten years. Has any right been acquired? If common +sense alone is consulted, the answer must be no. The ancestor did +not get any right, because he did not use the way long enough. +And just as little did the heir. How can it better the heir's +title that another man had trespassed before him? Clearly, if +four strangers to each other used the way for five years each, no +right would be acquired by the last. But here comes in the +fiction which has been so carefully explained. From the point of +view of the law it is not two persons who have used the way for +ten years each, but one who has used it for twenty. The heir has +the advantage of sustaining his ancestor's and the right is +acquired. + + + + +LECTURE X. -- SUCCESSIONS INTER VIVOS + +I now reach the most difficult and obscure part of the subject. +It remains to be discovered whether the fiction of identity was +extended to others besides the heir and executor. And if we find, +as we do, that it went but little farther in express terms, the +question will still arise whether the mode of thought and the +conceptions made possible by the doctrine of inheritance have not +silently modified the law as to dealings between the living. It +seems to me demonstrable that their influence has been profound, +and that, without understanding the theory of inheritance, it is +impossible to understand the theory of transfer inter vivos. + +[354] The difficulty in dealing with the subject is to convince +the sceptic that there is anything to explain. Nowadays, the +notion that a right is valuable is almost identical with the +notion that it may be turned into money by selling it. But it was +not always so. Before you can sell a right, you must be able to +make a sale thinkable in legal terms. I put the case of the +transfer of a contract at the beginning of the Lecture. I have +just mentioned the case of gaining a right by prescription, when +neither party has complied with the requirement of twenty years' +adverse use. In the latter instance, there is not even a right at +the time of the transfer, but a mere fact of ten years' past +trespassing. A way, until it becomes a right of way, is just as +little susceptible of being held by a possessory title as a +contract. If then a contract can be sold, if a buyer can add the +time of his seller's adverse user to his own, what is the +machinery by which the law works out the result? + +The most superficial acquaintance with any system of law in its +earlier stages will show with what difficulty and by what slow +degrees such machinery has been provided, and how the want of it +has restricted the sphere of alienation. It is a great mistake to +assume that it is a mere matter of common sense that the buyer +steps into the shoes of the seller, according to our significant +metaphor. Suppose that sales and other civil transfers had kept +the form of warlike capture which it seems that they had in the +infancy of Roman law, /1/ and which was at least [355] partially +retained in one instance, the acquisition of wives, after the +transaction had, in fact, taken the more civilized shape of +purchase. The notion that the buyer came in adversely to the +seller would probably have accompanied the fiction of adverse +taking, and he would have stood on his own position as founding a +new title. Without the aid of conceptions derived from some other +source, it would have been hard to work out a legal transfer of +objects which did not admit of possession. + +A possible source of such other conceptions was to be found in +family law. The principles of inheritance furnished a fiction and +a mode of thought which at least might have been extended into +other spheres. In order to prove that they were in fact so +extended, it will be necessary to examine once more the law of +Rome, as well as the remains of German and Anglo-Saxon customs. + +I will take up first the German and Anglo-Saxon laws which are +the ancestors of our own on one side of the house. For although +what we get from those sources is not in the direct line of the +argument, it lays a foundation for it by showing the course of +development in different fields. + +The obvious analogy between purchaser and heir seems to have been +used in the folk-laws, but mainly for another purpose than those +which will have to be considered in the English law. This was to +enlarge the sphere of alienability. It will be remembered that +there are many traces of family ownership in early German, as +well as in early Roman law; and it would seem that the transfer +[356] of property which originally could not be given outside the +family, was worked out through the form of making the grantee an +heir. + +The history of language points to this conclusion. Heres, as +Beseler /1/ and others have remarked, from meaning a successor to +the property of a person deceased, was extended to the donee +mortis causa, and even more broadly to grantees in general. +Hereditare was used in like manner for the transfer of land. +Hevin is quoted by Laferriere /2/ as calling attention to the +fact that the ancient usage was to say heriter for purchase, +heritier for purchaser, and desheriter for sell. + +The texts of the Salic law give us incontrovertible evidence. A +man might transfer the whole or any part of his property /3/ by +delivering possession of it to a trustee who, within twelve +months, handed it over to the beneficiaries. /4/ To those, the +text reads, whom the donor has named heredes (quos heredes +appellavit). Here then was a voluntary transfer of more or less +property at pleasure to persons freely chosen, who were not +necessarily universal successors, if they ever were, and who +nevertheless took under the name heredes. The word, which must +have meant at first persons taking by descent, was extended to +persons taking by purchase. /5/ If the word became enlarged in +meaning, it is probably because the thought which it conveyed was +turned to new uses. The transaction seems [357] to have fallen +half-way between the institution of an heir and a sale. The later +law of the Ripuarian Franks treats it more distinctly from the +former point of view. It permits a man who has no sons to give +all his property to whomsoever he chooses, whether relatives or +strangers, as inheritance, either by way of adfathamire, as the +Salic form was called, or by writing or delivery. /1/ + +The Lombards had a similar transfer, in which the donee was not +only called heres, but was made liable like an heir for the debts +of the donor on receiving the property after the donor's death. +/2/2 By the Salic law a man who could not pay the wergeld was +allowed to transfer formally his house-lot, and with it the +liability. But the transfer was to the next of kin. /3/ + +The house-lot or family curtilage at first devolved strictly +within the limits of the family. Here again, at least in England, +freedom of alienation seems to have grown up by gradually +increased latitude in the choice of successors. If we may trust +the order of development to be noticed in the early charters, +which it is hard to believe [358] accidental, although the +charters are few, royal grants at first permitted an election of +heirs among the kindred, and then extended it beyond them. In a +deed of the year 679, the language is, "as it is granted so do +you hold it and your posterity." One a century later reads, +"which let him always possess, and after his death leave to which +of his heirs he will." Another, "and after him with free power +(of choice) leave to the man of his kin to whom he wishes to" +(leave it). A somewhat earlier charter of 736 goes a step +further: "So that as long as he lives he shall have the power of +holding and possessing (and) of leaving it to whomsoever he +choose, either in his lifetime, or certainly after his death." At +the beginning of the ninth century the donee has power to leave +the property to whomsoever he will, or, in still broader terms, +to exchange or grant in his lifetime, and after his death to +leave it to whom he chooses,--or to sell, exchange, and leave to +whatsoever heir he chooses. /1/ This choice of heirs [359] +recalls the quos heredes appellavit of the Salic law just +mentioned, and may be compared with the language of a Norman +charter of about the year 1190: "To W. and his heirs, to wit +those whom he may constitute his heirs." /1/ + +A perfect example of a singular succession worked out by the +fiction of kinship is to be found in the story of Burnt Njal, an +Icelandic saga, which gives us a living picture of a society +hardly more advanced than the Salian Franks, as we see them in +the Lex Salica. A lawsuit was to be transferred by the proper +plaintiff to another more versed in the laws, and better able to +carry it on,--in fact, to an attorney. But a lawsuit was at that +time the alternative of a feud, and both were the peculiar affair +of the family concerned. /2/ Accordingly, when a suit for killing +a member of the family was to be handed over to a stranger, the +innovation had to be reconciled with the theory that such suit +belonged only to the next of kin. Mord is to take upon himself +Thorgeir's suit against Flosi for killing Helgi, and the form of +transfer is described as follows. + +"Then Mord took Thorgeir by the hand and named two witnesses to +bear witness, 'that Thorgeir Thofir's son hands me over a suit +for manslaughter against Flosi Thord's son, to plead it for the +slaying of Helgi Njal's son, with all those proofs which have to +follow the suit. Thou handest over to me this suit to plead and +to settle, and to enjoy all rights in it, as though I were the +rightful next of kin. Thou handest it over to me by law; and I +[360] take it from thee by law.'" Afterwards, these witnesses +come before the court, and bear witness to the transfer in like +words: "He handed over to him then this suit, with all the proofs +and proceedings which belonged to the suit, he handed it over to +him to plead and to settle, and to make use of all rights, as +though he were the rightful next of kin. Thorgeir handed it over +lawfully, and Mord took it lawfully." The suit went on, +notwithstanding the change of hands, as if the next of kin were +plaintiff. This is shown by a further step in the proceedings. +The defendant challenges two of the court, on the ground of their +connection with Mord, the transferee, by blood and by baptism. +But Mord replies that this is no good challenge; for "he +challenged them not for their kinship to the true plaintiff, the +next of kin, but for their kinship to him who pleaded the suit." +And the other side had to admit that Mord was right in his law. + +I now turn from the German to the Roman sources. These have the +closest connection with the argument, because much of the +doctrine to be found there has been transplanted unchanged into +modern law. + +The early Roman law only recognized as relatives those who would +have been members of the same patriarchal family, and under the +same patriarchal authority, had the common ancestor survived. As +wives passed into the families of their husbands, and lost all +connection with that in which they were born, relationship +through females was altogether excluded. The heir was one who +traced his relationship to the deceased through males alone. With +the advance of civilization this rule was changed. The praetor +gave the benefits of the inheritance to the blood relations, +although they were not heirs, and could [361] not be admitted to +the succession according to the ancient law. /1/ But the change +was not brought about by repealing the old law, which still +subsisted under the name of the jus civile. The new principle was +accommodated to the old forms by a fiction. The blood relation +could sue on the fiction that he was an heir, although he was not +one in fact. /2/ + +One the early forms of instituting an heir was a sale of the +familia or headship of the family to the intended heir, with all +its rights and duties. /3/ This sale of the universitas was +afterwards extended beyond the case of inheritance to that of +bankruptcy, when it was desired to put the bankrupt's property +into the hands of a trustee for distribution. This trustee also +could make use of the fiction, and sue as if he had been the +bankrupt's heir. /4/ We are told by one of the great +jurisconsults that in general universal successors stand in the +place of heirs. /5/ + +The Roman heir, with one or two exceptions, was always a +universal successor; and the fiction of heirship, as such, could +hardly be used with propriety except to enlarge the sphere of +universal successions. So far as it extended, however, all the +consequences attached to the original fiction of identity between +heir and ancestor followed as of course. + +[362] To recur to the case of rights acquired by prescription, +every universal successor could add the time of his predecessor's +adverse use to his own in order to make out the right. There was +no addition, legally speaking, but one continuous possession. + +The express fiction of inheritance perhaps stopped here. But when +a similar joinder of times was allowed between a legatee or +devisee (legatarius) and his testator, the same explanation was +offered. It was said, that, when a specific thing was left to a +person by will, so far as concerned having the benefit of the +time during which the testator had been in possession for the +purpose of acquiring a title, the legatee was in a certain sense +quasi an heir. /1/ Yet a legatarius was not a universal +successor, and for most purposes stood in marked contrast with +such successors. /2/ + +Thus the strict law of inheritance had made the notion familiar +that one man might have the advantage of a position filled by +another, although it was not filled, or was only partially +filled, by himself; and the second fiction, by which the +privileges of a legal heir in this respect as well as others had +been extended to other persons, broke down the walls which might +otherwise have confined those privileges to a single case. A new +conception was introduced into the law, and there was nothing to +hinder its further application. As has been shown, it was applied +in terms to a sale of the universitas for business purposes, and +to at least one case where the succession was confined to a +single specific thing. Why, then, might not every gift or sale be +regarded as a succession, so far as to insure the same +advantages? + +[363] The joinder of times to make out a title was soon allowed +between buyer and seller, and I have no doubt, from the language +always used by the Roman lawyers, that it was arrived at in the +way I have suggested. A passage from Scaevola (B. C. 30) will +furnish sufficient proof. Joinder of possessions, he says, that +is, the right to add the time of one's predecessor's holding to +one's own, clearly belongs to those who succeed to the place of +others, whether by contract or by will: for heirs and those who +are treated as holding the place of successors are allowed to add +their testator's possession to their own. Accordingly, if you +sell me a slave I shall have the benefit of your holding. /1/ + +The joinder of times is given to those who succeed to the place +of another. Ulpian cites a like phrase from a jurisconsult of the +time of the Antonines,--"to whose place I have succeeded by +inheritance, or purchase, or any other right." /2/ Succedere in +locum aliorum, like sustinere personam, is an expression of the +Roman lawyers for those continuations of one man's legal position +by another of which the type was the succession of heir to +ancestor. Suecedere alone is used in the sense of inherit, /3/ +and successio in that of "inheritance." /4/ The succession par +excellence was the inheritance; and it is believed that scarcely +any instance will be found in the Roman sources where +"succession" does not convey that analogy, and indicate the +partial [364] assumption, at least, of a persona formerly +sustained by another. It clearly does so in the passage before +us. + +But the succession which admits a joinder of times is not +hereditary succession alone. In the passage which has been cited +Scaevola says that it may be by contract or purchase, as well as +by inheritance or will. It may be singular, as well as universal. +The jurists often mention antithetically universal successions +and those confined to a single specific thing. Ulpian says that a +man succeeds to another's place, whether his succession be +universal or to the single object. /1/ + +If further evidence were wanting for the present argument, it +would be found in another expression of Ulpian's. He speaks of +the benefit of joinder as derived from the persona of the +grantor. "He to whom a thing is granted shall have the benefit of +joinder from the persona of his grantor." /2/ A benefit cannot be +derived from a persona except by sustaining it. + +It farther appears pretty plainly from Justinian's Institutes and +the Digest, that the benefit was not extended to purchasers in +all cases until a pretty late period. /3/ + +Savigny very nearly expressed the truth when he said, somewhat +broadly, that "every accessio, for whatever purpose, presupposes +nothing else than a relation of juridical [365] succession +between the previous and present possessor. For succession does +not apply to possession by itself." /1/ And I may add, by way of +further explanation, that every relation of juridical succession +presupposes either an inheritance or a relation to which, so far +as it extends, the analogies of the inheritance may be applied. + +The way of thinking which led to the accessio or joinder of times +is equally visible in other cases. The time during which a former +owner did not use an casement was imputed to the person who had +succeeded to his place. /2/ The defence that the plaintiff had +sold and delivered the thing in controversy was available not +only to the purchaser, but to his heirs or to a second purchaser, +even before delivery to him, against the successors of the +seller, whether universal or only to the thing in question. /3/ +If one used a way wrongfully as against the predecessor in title, +it was wrongful as against the successor, whether by inheritance, +purchase, or any other right. /4/ The formal oath of a party to +an action was conclusive in favor of his successors, universal or +singular. /5/ Successors by purchase or gift had the [366] +benefit of agreements made with the vendor. /1/ A multitude of +general expressions show that for most purposes, whether of +action or defence, the buyer stood in the shoes of the seller, to +use the metaphor of our own law. /2/ And what is more important +than the result, which often might have been reached by other +ways, the language and analogies are drawn throughout from the +succession to the inheritance. + +Thus understood, there could not have been a succession between a +person dispossessed of a thing against his will and the wrongful +possessor. Without the element of consent there is no room for +the analogy just explained. Accordingly, it is laid down that +there is no joinder of times when the possession is wrongful, /3/ +and the only enumerated means of succeeding in rem are by will, +sale, gift, or some other right. + +The argument now returns to the English law, fortified with some +general conclusions. It has been shown that in both the systems +from whose union our law arose the rules governing conveyance, or +the transfer of specific [367] objects between living persons, +were deeply affected by notions drawn from inheritance. It had +been shown previously that in England the principles of +inheritance applied directly to the singular succession of the +heir to a specific fee, as well as to the universal succession of +the executor. It would be remarkable, considering their history, +if the same principles had not affected other singular +successions also. It will soon appear that they have. And not to +be too careful about the order of proof, I will first take up the +joinder of times in prescription, as that has just been so fully +discussed. The English law of the subject is found on examination +to be the same as the Roman in extent, reason, and expression. It +is indeed largely copied from that source. For servitudes, such +as rights of way, light, and the like, form the chief class of +prescriptive rights, and our law of servitudes is mainly Roman. +Prescriptions, it is said, "are properly personal, and therefore +are always alleged in the person of him who prescribes, viz. that +he and all those whose estate he hath, &c.; therefore, a bishop +or a parson may prescribe,... for there is a perpetual estate, +and a perpetual succession and the successor hath the very same +estate which his predecessor had, for that continues, though the +person alters, like the case of the ancestor and the heir." /1/ +So in a modern case, where by statute twenty years' dispossession +extinguished the owner's title, the Court of Queen's Bench said +that probably the right would be transferred to the possessor "if +the same person, or several persons, claiming one from the other +by descent, will [368] or conveyance, had been in possession for +the twenty years." "But.... such twenty years' possession must +be either by the same person, or several persons claiming one +from the other, which is not the case here." /1/ + +In a word, it is equally clear that the continuous possession of +privies in title, or, in Roman phrase, successors, has all the +effect of the continuous possession of one, and that such an +effect is not attributed to the continuous possession of +different persons who are not in the same chain of title. One who +dispossesses another of land cannot add the time during which his +disseisee has used a way to the period of his own use, while one +who purchased can. /2/ + +The authorities which have been quoted make it plain that the +English law proceeds on the same theory as the Roman. One who +buys land of another gets the very same estate which his seller +had. He is in of the same fee, or hereditas, which means, as I +have shown, that he sustains the same persona. On the other hand, +one who wrongfully dispossesses another,--a disseisor,--gets a +different estate, is in of a new fee, although the land is the +same; and much technical reasoning is based upon this doctrine. + +In the matter of prescription, therefore, buyer and seller were +identified, like heir and ancestor. But the question [369] +remains whether this identification bore fruit in other parts of +the law also, or whether it was confined to one particular +branch, where the Roman law was grafted upon the English stock. + +There can be no doubt which answer is most probable, but it +cannot be proved without difficulty. As has been said, the heir +ceased to be the general representative of his ancestor at an +early date. And the extent to which even he was identified came +to be a matter of discussion. Common sense kept control over +fiction here as elsewhere in the common law. But there can be no +doubt that in matters directly concerning the estate the +identification of heir and ancestor has continued to the present +day; and as an estate in fee simple has been shown to be a +distinct persona, we should expect to find a similar +identification of buyer and seller in this part of the law, if +anywhere. + +Where the land was devised by will, the analogy applied with +peculiar ease. For although there is no difference in principle +between a devise of a piece of land by will and a conveyance of +it by deed, the dramatic resemblance of a devisee to an heir is +stronger than that of a grantee. It will be remembered that one +of the Roman jurists said that a legatarius (legatee or devisee) +was in a certain sense quasi heres. The English courts have +occasionally used similar expressions. In a case where a testator +owned a rent, and divided it by will among his sons, and then one +of the sons brought debt for his part, two of the judges, while +admitting that the testator could not have divided the tenant's +liability by a grant or deed in his lifetime, thought that it was +otherwise with regard to a division by will. Their reasoning was +that "the devise is quasi [370] an act of law, which shall inure +without attornment, and shall make a sufficient privity, and so +it may well be apportioned by this means." /1/ So it was said by +Lord Ellenborough, in a case where a lessor and his heirs were +entitled to terminate a lease on notice, that a devisee of the +land as heres factus would be understood to have the same right. +/2/ + +But wills of land were only exceptionally allowed by custom until +the reign of Henry VIII., and as the main doctrines of +conveyancing had been settled long before that time, we must look +further back and to other sources for their explanation. We shall +find it in the history of warranty. This, and the modern law of +covenants running with the land, will be treated in the next +Lecture. + +[371] + + + + +LECTURE XI. -- SUCCESSIONS.--II. INTER VIVOS. + +The principal contracts known to the common law and suable in the +King's Courts, a century after the Conquest, were suretyship and +debt. The heir, as the general representative of his ancestor's +rights and obligations, was liable for his debts, and was the +proper person to sue for those which were due the estate. By the +time of Edward III. this had changed. Debts had ceased to concern +the heir except secondarily. The executor took his place both for +collection and payment. It is said that even when the heir was +bound he could not be sued except in case the executor had no +assets. /1/ + +But there was another ancient obligation which had a different +history. I refer to the warranty which arose upon the transfer of +property. We should call it a contract, but it probably presented +itself to the mind of Glanvill's predecessors simply as a duty or +obligation attached by law to a transaction which was directed to +a different point; just as the liability of a bailee, which is +now treated as arising from his undertaking, was originally +raised by the law out of the position in which he stood toward +third persons. + +After the Conquest we do not hear much of warranty, except in +connection with land, and this fact will at once [372] account +for its having had a different history from debt. The obligation +of warranty was to defend the title, and, if the defence failed, +to give to the evicted owner other land of equal value. If an +ancestor had conveyed lands with warranty, this obligation could +not be fulfilled by his executor, but only by his heir, to whom +his other lands had descended. Conversely as to the benefit of +warranties made to a deceased grantee, his heir was the only +person interested to enforce such warranties, because the land +descended to him. Thus the heir continued to represent his +ancestor in the latter's rights and obligations by way of +warranty, after the executor had relieved him of the debts, just +as before that time he had represented his ancestor in all +respects. + +If a man was sued for property which he had bought from another, +the regular course of litigation was for the defendant to summon +in his seller to take charge of the defence, and for him, in +turn, to summon in his, if he had one, and so on until a party +was reached in the chain of title who finally took the burden of +the case upon himself. A contrast which was early stated between +the Lombard and the Roman law existed equally between the +Anglo-Saxon and the Roman. It was said that the Lombard presents +his grantor, the Roman stands in his grantor's +shoes,--Langobardus dat auctorem, Romanus stat loco auctoris. /1/ + +Suppose, now, that A gave land to B, and B conveyed over to C. If +C was sued by D, claiming a better title, C practically got the +benefit of A's warranty, /2/ because, when he summoned B, B would +summon A, and thus A [373] would defend the case in the end. But +it might happen that between the time when B conveyed to C, and +the time when the action was begun, B had died. If he left an +heir, C might still be protected. But supposing B left no heir, C +got no help from A, who in the other event would have defended +his suit. This no doubt was the law in the Anglo-Saxon period, +but it was manifestly unsatisfactory. We may conjecture, with a +good deal of confidence, that a remedy would be found as soon as +there was machinery to make it possible. This was furnished by +the Roman law. According to that system, the buyer stood in the +place of his seller, and a fusion of the Roman with the +Anglo-Saxon rule was all that was needed. + +Bracton, who modelled his book upon the writings of the mediaeval +civilians, shows how this thought was used. He first puts the +case of a conveyance with the usual clause binding the grantor +and his heirs to warrant and defend the grantee and his heirs. He +then goes on: "Again one may make his gift greater and make other +persons quasi heirs [of his grantee], although, in fact, they are +not heirs, as when he says in the gift, to have and to hold to +such a one and his heirs, or to whomsoever he shall choose to +give or assign the said land, and I and my heirs will warrant to +the said so and so, and his heirs, or to whomsoever he shall +choose to give or assign the said land, and their heirs, against +all persons. In which case if the grantee shall have given or +assigned the land, and then have died without heirs, the [first] +grantor and his heirs begin to hold the place of the first +grantee and his heirs, and are in place of the first grantee's +heir (pro herede) so far as concerns warranting to his assigns +and their heirs [374] according to the clause contained in the +first grantor's charter, which would not be but for the mention +of assigns in the first gift. But so long as the first grantee +survives, or his heirs, they are held to warranty, and not the +first grantor." /1/ + +Here we see that, in order to entitle the assign to the benefit +of the first grantor's warranty, assigns must be mentioned in the +original grant and covenant. The scope of the ancient obligation +was not extended without the warrantor's assent. But when it was +extended, it was not by a contrivance like a modern letter of +credit. Such a conception would have been impossible in that +stage of the law. By mentioning assigns the first grantor did not +offer a covenant to any person who would thereafter purchase the +land. If that had been the notion, there would have been a +contract directly binding the first grantor to the assign, as +soon as the land was sold, and thus there would have been two +warranties arising from the same clause,--one to the first +grantee, a second to the assign. But in fact the assign recovered +on the original warranty to the first grantee. /2/ He could only +come on the first grantor after a failure of his immediate +grantor's heirs. The first grantor by mentioning assigns simply +enlarged the limits of his grantee's succession. The assign could +vouch the first grantor only on the principles of succession. +That is to say, he could only do so when, by the failure of the +first grantee's blood, the first grantee's feudal relation to the +first grantor, his persona, came to be sustained by the assign. +/3/ + +[375] This was not only carrying out the fiction with technical +consistency, but was using it with good sense, as fictions +generally have been used in the English law. Practically it made +little difference whether the assign got the benefit of the first +grantor's warranty mediately or immediately, if he got it. The +trouble arose where he could not summon the mesne grantor, and +the new right was given him for that case alone. Later, the +assign did not have to wait for the failure of his immediate +grantor's blood, but could take advantage of the first grantor's +warranty from the beginning. /1/ + +If it should be suggested that what has been said goes to show +that the first grantor's duty to warrant arose from the assign's +becoming his man and owing homage, the answer is that he was not +bound unless he had mentioned assigns in his grant, homage or no +homage. In this Bracton is confirmed by all the later +authorities. /2/ + +Another rule on which there are vast stores of forgotten learning +will show how exactly the fiction fell in with the earlier law. +Only those who were privy in estate with the person to whom the +warranty was originally given, could vouch the original +warrantor. Looking back to the early [376] procedure, it will be +seen that of course only those in the same chain of title could +even mediately get the benefit of a former owner's warranty. The +ground on which a man was bound to warrant was that he had +conveyed the property to the person who summoned him. Hence a man +could summon no one but his grantor, and the successive vouchers +came to an end when the last vouchee could not call on another +from whom he had bought. Now when the process was abridged, no +persons were made liable to summons who would not have been +liable before. The present owner was allowed to vouch directly +those who otherwise would have been indirectly bound to defend +his title, but no others. Hence he could only summon those from +whom his grantor derived his title. But this was equally well +expressed in terms of the fiction employed. In order to vouch, +the present owner must have the estate of the person to whom the +warranty was made. As every lawyer knows, the estate does not +mean the land. It means the status or persona in regard to that +land formerly sustained by another. The same word was used in +alleging a right by prescription, "that he and those whose estate +he hath have for time whereof memory runneth not to the +contrary," &c.; and it will be remembered that the word +corresponds to the same requirement of succession there. + +To return to Bracton, it must be understood that the description +of assigns as quasi heredes is not accidental. He describes them +in that way whenever he has occasion to speak of them. He even +pushes the reasoning drawn from the analogy of inheritance to +extremes, and refers to it in countless passages. For instance: +"It should be noted that of heirs some are true heirs and some +quasi [377] heirs, in place of heirs, &c.; true heirs by way of +succession quasi heirs, &c. by the form of the gift; such as +assigns," &c. /1/ + +If it should be suggested that Bracton's language is only a piece +of mediaeval scholasticism, there are several answers. In the +first place it is nearly contemporaneous with the first +appearance of the right in question. This is shown by his citing +authority for it as for something which might be disputed. He +says, "And that warranty must be made to assigns according to the +form of the gift is proved [by a case] in the circuit of W. de +Ralegh, about the end of the roll,"&c. /2/ It is not justifiable +to assume that a contemporary explanation of a new rule had +nothing to do with its appearance. Again, the fact is clear that +the assign got the benefit of the warranty to the first grantee, +not of a new one to himself, as has been shown, and Bracton's +explanation of how this was worked out falls in with what has +been seen of the course of the German and Anglo-Saxon law, and +with the pervading thought of the Roman law. Finally, and most +important, the requirement that the assign should be in of the +first grantee's estate has remained a requirement from that day +to this. The fact that the same thing is required in the same +words as in prescription goes far to show that the same technical +thought has governed both. + +I have said, Glanvill's predecessors probably regarded warranty +as an obligation incident to a conveyance, rather than as a +contract. But when it became usual to insert the undertaking to +warrant in a deed or charter of feoffment, it lost something of +its former isolation as a duty standing by itself, and admitted +of being [378] generalized. It was a promise by deed, and a +promise by deed was a covenant. /1/ This was a covenant having +peculiar consequences attached to it, no doubt. It differed also +in the scope of its obligation from some other covenants, as will +be shown hereafter. But still it was a covenant, and could +sometimes be sued on as such. It was spoken of in the Year Books +of Edward III. as a covenant which "falls in the blood," /2/ as +distinguished from those where the acquittance fell on the land, +and not on the person. /3/ + +The importance of this circumstance lies in the working of the +law of warranty upon other covenants which took its place. When +the old actions for land gave way to more modern and speedier +forms, warrantors were no longer vouched in to defend, and if a +grantee was evicted, damages took the place of a grant of other +land. The ancient warranty disappeared, and was replaced by the +covenants which we still find in our deeds, including the +covenants for seisin, for right to convey, against incumbrances, +for quiet enjoyment, of warranty, and for further assurance. But +the principles on which an assign could have the benefit of these +covenants were derived from those which governed warranty, as any +one may see by looking at the earlier decisions. + +For instance, the question, what was a sufficient assignment to +give an assign the benefit of a covenant for quiet enjoyment, was +argued and decided on the authority of the old cases of warranty. +/4/ + +[379] The assign, as in warranty, came in under the old covenant +with the first covenantee, not by any new right of his own. Thus, +in an action by an assign on a covenant for further assurance, +the defendant set up a release by the original covenantee after +the commencement of the suit. The court held that the assignee +should have the benefit of the covenant. "They held, that +although the breach was in the time of the assignee, yet if the +release had been by the covenantee (who is a party to the deed, +and from whom the plaintiff derives) before any breach, or before +the suit commenced, it had been a good bar to the assignee from +bringing this writ of covenant. But the breach of the covenant +being in the time of the assignee,... and the action brought by +him, and so attached in his person, the covenantee cannot release +this action wherein the assignee is interested." /1/ The +covenantee even after assignment remains the legal party to the +contract. The assign comes in under him, and does not put an end +to his control over it, until by breach and action a new right +attaches in the assign's person, distinct from the rights derived +from the persona of his grantor. Later, the assign got a more +independent standing, as the original foundation of his rights +sunk gradually out of sight, and a release after assignment +became ineffectual, at least in the case of a covenant to pay +rent. /2/ + +Only privies in estate with the original covenantee can have the +benefit of covenants for title. It has been shown that a similar +limitation of the benefits of the ancient [380] warranty was +required by its earlier history before the assign was allowed to +sue, and that the fiction by which he got that right could not +extend it beyond that limit. This analogy also was followed. For +instance, a tenant in tail male made a lease for years with +covenants of right to let and for quiet enjoyment, and then died +without issue male. The lessee assigned the lease to the +plaintiff. The latter was soon turned out, and thereupon brought +an action upon the covenant against the executor of the lessor. +It was held that he could not recover, because he was not privy +in estate with the original covenantee. For the lease, which was +the original covenantee's estate, was ended by the death of the +lessor and termination of the estate tail out of which the lease +was granted, before the form of assignment to the plaintiff. /1/ + +The only point remaining to make the analogy between covenants +for title and warranty complete was to require assigns to be +mentioned in order to enable them to sue. In modern times, of +course, such a requirement, if it should exist, would be purely +formal, and would be of no importance except as an ear-mark by +which to trace the history of a doctrine. It would aid our +studies if we could say that wherever assigns are to get the +benefit of a covenant as privies in estate with the covenantee, +they must be mentioned in the covenant. Whether such a +requirement does exist or not would be hard to tell from the +decisions alone. It is commonly supposed not to. But the popular +opinion on this trifling point springs from a failure to +understand one of the great antinomies of the law, which must now +be explained. + +So far as we have gone, we have found that, wherever [381] one +party steps into the rights or obligations of another, without in +turn filling the situation of fact of which those rights or +obligations are the legal consequences, the substitution is +explained by a fictitious identification of the two individuals, +which is derived from the analogy of the inheritance. This +identification has been seen as it has been consciously worked +out in the creation of the executor, whose entire status is +governed by it. It has been seen still consciously applied in the +narrower sphere of the heir. It has been found hidden at the root +of the relation between buyer and seller in two cases at least, +prescription and warranty, when the history of that relation is +opened to a sufficient depth. + +But although it would be more symmetrical if this analysis +exhausted the subject, there is another class of cases in which +the transfer of rights takes place upon a wholly different plan. +In explaining the succession which is worked out between buyer +and seller for the purpose of creating a prescriptive right, such +as a right of way over neighboring land to the land bought and +sold, it was shown that one who, instead of purchasing the land, +had wrongfully possessed himself of it by force, would not be +treated as a successor, and would get no benefit from the +previous use of the way by his disseisee. But when the former +possessor has already gained a right of way before he is turned +out, a new principle comes into operation. If the owner of the +land over which the way ran stopped it up, and was sued by the +wrongful possessor, a defence on the ground that the disseisor +had not succeeded to the former owner's rights would not prevail. +The disseisor would be protected in his possession of the land +against all but the rightful owner, and he would equally be +protected [382] in his use of the way. This rule of law does not +stand on a succession between the wrongful possessor and the +owner, which is out of the question. Neither can it be defended +on the same ground as the protection to the occupation of the +land itself. That ground is that the law defends possession +against everything except a better title. But, as has been said +before, the common law does not recognize possession of a way. A +man who has used a way ten years without title cannot sue even a +stranger for stopping it. He was a trespasser at the beginning, +he is nothing but a trespasser still. There must exist a right +against the servient owner before there is a right against +anybody else. At the same time it is clear that a way is no more +capable of possession because somebody else has a right to it, +than if no one had. + +How comes it, then, that one who has neither title nor possession +is so far favored? The answer is to be found, not in reasoning, +but in a failure to reason. In the first Lecture of this course +the thought with which we have to deal was shown in its +theological stage, to borrow Comte's well-known phraseology, as +where an axe was made the object of criminal process; and also in +the metaphysical stage, where the language of personification +alone survived, but survived to cause confusion of reasoning. The +case put seems to be an illustration of the latter. The language +of the law of easements was built up out of similes drawn from +persons at a time when the noxoe deditio was still familiar; and +then, as often happens, language reacted upon thought, so that +conclusions were drawn as to the rights themselves from the terms +in which they happened to be expressed. When one estate was said +to be enslaved to another, or a right of way was said to be a +quality or [383] incident of a neighboring piece of land, men's +minds were not alert to see that these phrases were only so many +personifying metaphors, which explained nothing unless the figure +of speech was true. + +Rogron deduced the negative nature of servitudes from the rule +that the land owes the services, not the person,--Proedium non +persona servit. For, said Rogron, the land alone being bound, it +can only be bound passively. Austin called this an "absurd +remark." /1/ But the jurists from whom we have inherited our law +of easements were contented with no better reasoning. Papinian +himself wrote that servitudes cannot be partially extinguished, +because they are due from lands, not persons. /2/ Celsus thus +decides the case which I took for my illustration: Even if +possession of a dominant estate is acquired by forcibly ejecting +the owner, the way will be retained; since the estate is +possessed in such quality and condition as it is when taken. /3/ +The commentator Godefroi tersely adds that there are two such +conditions, slavery and freedom; and his antithesis is as old as +Cicero. /4/ So, in another passage, Celsus asks, What else are +the rights attaching to land but qualities of that land? /5/ So +Justinian's Institutes speak of servitudes which inhere in +buildings. /6/ So Paulus [384] speaks of such rights as being +accessory to bodies. "And thus," adds Godefroi, "rights may +belong to inanimate things." /1/ It easily followed from all this +that a sale of the dominant estate carried existing easements, +not because the buyer succeeded to the place of the seller, but +because land is bound to land. /2/ + +All these figures import that land is capable of having rights, +as Austin recognizes. Indeed, he even says that the land "is +erected into a legal or fictitious person, and is styled +'praedium dominans.'" /3/ But if this means anything more than to +explain what is implied by the Roman metaphors, it goes too far. +The dominant estate was never "erected into a legal person," +either by conscious fiction or as a result of primitive beliefs. +/4/ It could not sue or be sued, like a ship in the admiralty. It +is not supposed that its possessor could maintain an action for +an interference with an easement before his time, as an heir +could for an injury to property of the hereditas jacens. If land +had even been systematically treated as capable of acquiring +rights, the time of a disseisee might have been added to that Of +the wrongful occupant, on the ground that the land, and not this +or that individual, was gaining the easement, and that long +association between the enjoyment of the privilege and the land +was sufficient, which has never been the law. + +All that can be said is, that the metaphors and similes employed +naturally led to the rule which has prevailed, [385] and that, as +this rule was just as good as any other, or at least was +unobjectionable, it was drawn from the figures of speech without +attracting attention, and before any one had seen that they were +only figures, which proved nothing and justified no conclusion. + +As easements were said to belong to the dominant estate, it +followed that whoever possessed the land had a right of the same +degree over what was incidental to it. If the true meaning had +been that a way or other easement admits of possession, and is +taken possession of with the land to which it runs, and that its +enjoyment is protected on the same grounds as possession in other +cases, the thought could have been understood. But that was not +the meaning of the Roman law, and, as has been shown, it is not +the doctrine of ours. We must take it that easements have become +an incident of land by an unconscious and unreasoned assumption +that a piece of land can have rights. It need not be said that +this is absurd, although the rules of law which are based upon it +are not so. + +Absurd or not, the similes as well as the principles of the Roman +law reappear in Bracton. He says, "The servitude by which land is +subjected to [other] land, is made on the likeness of that by +which man is made the slave of man." /1/ "For rights belong to a +free tenement, as well as tangible things.... They may be called +rights or liberties with regard to the tenements to which they +are owed, but servitudes with regard to the tenements by which +they are owed.... One estate is free, the other subjected to +slavery." /2/ "[A servitude] may be called an arrangement by +which house is subjected to house, farm to [386] farm, holding to +holding." /1/ No passage has met my eye in which Bracton +expressly decides that an easement goes with the dominant estate +upon a disseisin, but what he says leaves little doubt that he +followed the Roman law in this as in other things. + +The writ against a disseisor was for "so much land and its +appurtenances," /2/ which must mean that he who had the land even +wrongfully had the appurtenances. So Bracton says an action is in +rem "whether it is for the principal thing, or for a right which +adheres to the thing,... as when one sues for a right of way, +... since rights of this sort are all incorporeal things, and are +quasi possessed and reside in bodies, and cannot be got or kept +without the bodies in which they inhere, nor in any way had +without the bodies to which they belong." /3/ And again, "Since +rights do not admit of delivery, but are transferred with the +thing in which they are, that is, the bodily thing, he to whom +they are transferred forthwith has a quasi possession of those +rights as soon as he has the body in which they are." /4/ + +There is no doubt about the later law, as has been said at the +outset. + +We have thus traced two competing and mutually inconsistent +principles into our law. On the one hand is the conception of +succession or privity; on the other, that of rights inhering in a +thing. Bracton seems to have vacillated a little from a feeling +of the possibility of conflict between the two. The benefit of a +warranty was confined to those who, by the act and consent of the +[387] grantee, succeeded to his place. It did not pass to assigns +unless assigns were mentioned. Bracton supposes grants of +easements with or without mention of assigns, which looks as if +he thought the difference might be material with regard to +easements also. He further says, that if an easement be granted +to A, his heirs and assigns, all such by the form of the grant +are allowed the use in succession, and all others are wholly +excluded. /1/ But he is not speaking of what the rights of a +disseisor would be as against one not having a better title, and +he immediately adds that they are rights over a corporeal object +belonging to a corporeal object. + +Although it may be doubted whether the mention of assigns was +ever necessary to attach an easement to land, and although it is +very certain that it did not remain so long, the difficulty +referred to grew greater as time went on. It would have been +easily disposed of if the only rights which could be annexed to +land were easements, such as a right of way. It then might have +been said that these were certain limited interests in land, less +than ownership in extent, but like it in kind, and therefore +properly transferred by the same means that ownership was. A +right of way, it might have been argued, is not to be approached +from the point of view of contract. It does not presuppose any +promise on the part of the servient owner. His obligation, +although more troublesome to him than to others, is the same as +that of every one else. It is the purely negative duty not to +obstruct or interfere with a right of property. /2/ + +[388] But although the test of rights going with the land may +have been something of that nature, this will not help us to +understand the cases without a good deal of explanation. For such +rights might exist to active services which had to be performed +by the person who held the servient estate. It strikes our ear +strangely to hear a right to services from an individual called a +right of property as distinguished from contract. Still this will +be found to have been the way in which such rights were regarded. +Bracton argues that it is no wrong to the lord for the tenant to +alienate land held by free and perfect gift, on the ground that +the land is bound and charged with the services into whose hands +soever it may come. The lord is said to have a fee in the homage +and services; and therefore no entry upon the land which does not +disturb them injures him. /1/ It is the tenement which imposes +the obligation of homage, /2/ and the same thing is true of +villein and other feudal services. /3/ + +The law remained unchanged when feudal services took the form of +rent. /4/ Even in our modern terms for years rent is still +treated as something issuing out of the leased premises, so that +to this day, although, if you hire a whole house and it burns +down, you have to pay without abatement, because you have the +land out of which the rent issues, yet if you only hire a suite +of rooms and they are burned, you pay rent no longer, because you +no longer have the tenement out of which it comes. /5/ + +[389] It is obvious that the foregoing reasoning leads to the +conclusion that a disseisor of the tenant would be bound as much +as the tenant himself, and this conclusion was adopted by the +early law. The lord could require the services, /1/ or collect +the rent /2/ of any one who had the land, because, as was said in +language very like Bracton's, "the charge of the rent goes with +the land." /3/ + +Then as to the right to the rent. Rent was treated in early law +as a real right, of which a disseisin was possible, and for which +a possessory action could be brought. If, as was very frequently +the case, the leased land lay within a manor, the rent was parcel +of the manor, /4/ so that there was some ground for saying that +one who was seised of the manor, that is, who possessed the lands +occupied by the lord of the manor, and was recognized by the +tenants as lord, had the rents as incident thereto. Thus Brian, +Chief Justice of England under Henry VII., says, "If I am +disseised of a manor, and the tenants pay their rent to the +disseisor, and then I re-enter, I shall not have the back rent of +my tenants which they have paid to my disseisor, but the +disseisor shall pay for all in trespass or assize." /5/ This +opinion was evidently founded on the notion that the rent was +attached to the chief land like an easement. Sic fit ut debeantur +rei a re. /6/ + +Different principles might have applied when the rent was not +parcel of a manor, and was only part of the reversion; that is, +part of the landlord's fee or estate out of [390] which the lease +was carved. If the lease and rent were merely internal divisions +of that estate, the rent could not be claimed except by one who +was privy to that estate. A disseisor would get a new and +different fee, and would not have the estate of which the rent +was part. And therefore it would seem that in such a case the +tenant could refuse to pay him rent, and that payment to him +would be no defence against the true owner. /1/ Nevertheless, if +the tenant recognized him, the disseisor would be protected as +against persons who could not show a better title. /2/ +Furthermore, the rent was so far annexed to the land that whoever +came by the reversion lawfully could collect it, including the +superior lord in case of escheat. /3/ Yet escheat meant the +extinction of the fee of which the lease and rent were parts, and +although Bracton regarded the lord as coming in under the +tenant's title pro herede, in privity, it was soon correctly +settled that he did not, but came in paramount. This instance, +therefore, comes very near that of a disseisor. + +Services and rent, then, were, and to some extent are still, +dealt with by the law from the point of view of property. They +were things which could be owned and transferred like other +property. They could be possessed even by wrong, and possessory +remedies were given for them. + +No such notion was applied to warranties, or to any right which +was regarded wholly from the point of view of contract. And when +we turn to the history of those remedies for rent which sounded +in contract, we find that they were so regarded. The actions of +debt and covenant [391] could not be maintained without privity. +In the ninth year of Henry VI. /1/ it was doubted whether an heir +having the reversion by descent could have debt, and it was held +that a grantee of the reversion, although he had the rent, could +not have that remedy for it. A few years later, it was decided +that the heir could maintain debt, /2/ and in Henry VII.'s reign +the remedy was extended to the devisee, /3/ who, as has been +remarked above, seemed more akin to the heir than a grantee, and +was more easily likened to him. It was then logically necessary +to give assigns the same action, and this followed. /4/ The +privity of contract followed the estate, so that the assignee of +the reversion could sue the person then holding the term. /5/ On +like grounds he was afterwards allowed to maintain covenant. /6/ +But these actions have never lain for or against persons not +privy in estate with the lessor and lessee respectively, because +privity to the contract could never be worked out without +succession to the title. /7/ + +However, all these niceties had no application to the old +freehold rents of the feudal period, because the contractual +remedies did not apply to them until the time of Queen Anne. /8/ +The freehold rent was just as much real estate as an acre of +land, and it was sued for by the similar remedy of an assize, +asking to be put back into possession. + +[392] The allowance of contractual remedies shows that rent and +feudal services of that nature, although dealt with as things +capable of possession, and looked at generally from the point of +view of property rather than of contract, yet approach much +nearer to the nature of the latter than a mere duty not to +interfere with a way. Other cases come nearer still. The sphere +of prescription and custom in imposing active duties is large in +early law. Sometimes the duty is incident to the ownership of +certain land; sometimes the right is, and sometimes both are, as +in the case of an easement. When the service was for the benefit +of other land, the fact that the burden, in popular language, +fell upon one parcel, was of itself a reason for the benefit +attaching to the other. + +Instances of different kinds are these. A parson might be bound +by custom to keep a bull and a boar for the use of his parish. +/1/ A right could be attached to a manor by prescription to have +a convent sing in the manor chapel. /2/ A right might be gained +by like means to have certain land fenced by the owner of the +neighboring lot. /3/ Now, it may readily be conceded that even +rights like the last two, when attached to land, were looked at +as property, and were spoken of as the subject of grant. /4/ It +may be conceded that, in many cases where the statement sounds +strange to modern ears, the obligation was regarded as failing on +the land alone, and not on the person of the [393] tenant. And it +may be conjectured that this view arose naturally and reasonably +from there having been originally no remedy to compel performance +of such services, except a distress executed on the servient +land. /1/ But any conjectured distinction between obligations for +which the primitive remedy was distress alone, and others, if it +ever existed, must soon have faded from view; and the line +between those rights which can be deemed rights of property, and +those which are mere contracts, is hard to see, after the last +examples. A covenant to repair is commonly supposed to be a pure +matter of contract. What is the difference between a duty to +repair, and a duty to fence? The difficulty remains almost as +great as ever of finding the dividing line between the competing +principles of transfer,--succession on the one side, and +possession of dominant land on the other. If a right in the +nature of an easement could be attached to land by prescription, +it could equally be attached by grant. If it went with the land +in one case, even into the hands of a disseisor, it must have +gone with it in the other. No satisfactory distinction could be +based on the mode of acquisition, /2/ nor was any attempted. As +the right was not confined to assigns, there was no need of +mentioning assigns. /3/ In modern times, at least, if not in +early law, such rights can be created by covenant as well [394] +as by grant. /1/ And, on the other hand, it is ancient law that +an action of covenant may be maintained upon an instrument of +grant. /2/ The result of all this was that not only a right +created by covenant, but the action of covenant itself, might in +such cases go to assigns, although not mentioned, at a time when +such mention was essential to give them the benefit of a +warranty. Logically, these premises led one step farther, and not +only assigns not named, but disseisors, should have been allowed +to maintain their action on the contract, as they had the right +arising out of it. Indeed, if the plaintiff had a right which +when obtained by grant would have entitled him to covenant, it +was open to argument that he should be allowed the same action +when he had the right by prescription, although, as has been seen +in the case of rent, it did not follow in practice from a man's +having a right that he had the contractual remedies for it. /3/ +Covenant required a specialty, but prescription was said to be a +sufficiently good specialty. /4/ Where, then, was the line to be +drawn between covenants that devolved only to successors, and +those that went with the land? + +The difficulty becomes more striking upon further examination of +the early law. For side by side with the personal warranty which +has been discussed hitherto, there was another warranty which has +not yet been mentioned [395] by which particular land alone was +bound. /1/ The personal warranty bound only the warrantor and his +heirs. As was said in a case of the time of Edward I., "no one +can bind assigns to warranty, since warranty always extends to +heirs who claim by succession and not by assignment." /2/ But +when particular land was bound, the warranty went with it, even +into the hands of the King, because, as Bracton says, the thing +goes with its burden to every one. /3/ Fleta writes that every +possessor will be held. /4/ There cannot be a doubt that a +disseisor would have been bound equally with one whose possession +was lawful. + +We are now ready for a case /5/ decided under Edward III., which +has been discussed from the time of Fitzherbert and Coke down to +Lord St. Leonards and Mr. Rawle, which is still law, and is said +to remain still unexplained. /6/ It shows the judges hesitating +between the two conceptions to which this Lecture has been +devoted. If they are understood, I think the explanation will be +clear. + +Pakenham brought covenant as heir of the covenantee against a +prior, for breach of a covenant made by the defendant's +predecessor with the plaintiff's great-grandfather, that the +prior and convent should sing every week in a chapel in his +manor, for him and his servants. The defendant first pleaded that +the plaintiff and his servants were not dwelling within the +manor; but, not daring to [396] rest his case on that, he pleaded +that the plaintiff was not heir, but that his elder brother was. +The plaintiff replied that he was tenant of the manor, and that +his great-grandfather enfeoffed a stranger, who enfeoffed the +plaintiff and his wife; and that thus the plaintiff was tenant of +the manor by purchase, and privy to the ancestor; and also that +the services had been rendered for a time whereof the memory was +not. + +It is evident from these pleadings that assigns were not +mentioned in the covenant, and so it has always been taken. /1/ +It also appears that the plaintiff was trying to stand on two +grounds; first, privity, as descendant and assign of the +covenantee; second, that the service was attached to the manor by +covenant or by prescription, and that he could maintain covenant +as tenant of the manor, from whichever source the duty arose. + +Finchden, J. puts the case of parceners making partition, and one +covenanting with the other to acquit of suit. A purchaser has the +advantage of the covenant. Belknap, for the defendants, agrees, +but distinguishes. In that case the acquittance falls on the +land, and not on the person. /2/ (That is to say, such +obligations follow the analogy of easements, and, as the burden +falls on the quasi servient estate, the benefit goes with the +dominant land to assigns, whether mentioned or not, and they are +not considered from the point of view of contract at all. +Warranty, on the other hand, is a contract pure and simple, and +lies in the blood,--falls on the person, not on the land. /3/) + +Finchden: a fortiori in this case; for there the action [397] was +maintained because the plaintiff was tenant of the land from +which the suit was due, and here he is tenant of the manor where +the chapel is. + +Wichingham, J.: If the king grants warren to another who is +tenant of the manor, he shall have warren, &c.; but the warren +will not pass by the grant [of the manor], because the warren is +not appendant to the manor. No more does it seem the services are +here appendant to the manor. + +Thorpe, C. J., to Belknap: "There are some covenants on which no +one shall have an action, but the party to the covenant, or his +heir, and some covenants have inheritance in the land, so that +whoever has the land by alienation, or in other manner, shall +have action of covenant; [or, as it is stated in Fitzherbert's +Abridgment, /1/ the inhabitants of the land as well as every one +who has the land, shall have the covenant;] and when you say he +is not heir, he is privy of blood, and may be heir: /2/ and also +he is tenant of the land, and it is a thing which is annexed to +the chapel, which is in the manor, and so annexed to the manor, +and so he has said that the services have been rendered for all +time whereof there is memory, whence it is right this action +should be maintained." Belknap denied that the plaintiff counted +on such a prescription; but Thorpe said he did, and we bear +record of it, and the case was adjourned. /3/ + +It will be seen that the discussion followed the lines marked out +by the pleading. One judge thought that [398] the plaintiff was +entitled to recover as tenant of the manor. The other puisne +doubted, but agreed that the case must be discussed on the +analogy of easements. The Chief Justice, after suggesting the +possibility of sufficient privity on the ground that the +plaintiff was privy in blood and might be heir, turns to the +other argument as more promising, and evidently founds his +opinion upon it. /1/ It would almost seem that he considered a +prescriptive right enough to support the action, and it is pretty +clear that he thought that a disseisor would have had the same +rights as the plaintiff. + +In the reign of Henry IV., another case /2/ arose upon a covenant +very like the last. But this time the facts were reversed. The +plaintiff counted as heir, but did not allege that he was tenant +of the manor. The defendant, not denying the plaintiff's descent, +pleaded in substance that he was not tenant of the manor in his +own right. The question raised by the pleadings, therefore, was +whether the heir of the covenantee could sue without being tenant +of the manor. If the covenant was to be approached from the side +of contract, the heir was party to it as representing the +covenantee. If, on the other hand, it was treated as amounting to +the grant of a service like an easement, it would naturally go +with the manor if made to the lord of the manor. It seems to have +been thought that such a covenant might go either way, according +as it was made to the tenant of the manor or to a stranger. +Markham, one of the judges, says: "In a writ of covenant one must +be privy to the covenant if he would have a writ of covenant or +aid by the covenant. But, peradventure, if the covenant [399] had +been made with the lord of the manor, who had inheritance in the +manor, ou issint come determination poit estre fait, it would be +otherwise," which was admitted. /1/ It was assumed that the +covenant was not so made as to attach to the manor, and the +court, observing that the service was rather spiritual than +temporal, were inclined to think that the heir could sue. /2/ The +defendant accordingly over and set up a release. It will be seen +how fully this agrees with the former case. + +The distinction taken by Markham is stated very clearly in a +reported by Lord Coke. In the argument of Chudleigh's Case the +line is drawn thus: "Always, the warranty as to voucher requires +privity of estate to which it was annexed," (i.e. succession to +the original covenantee,) "and the same law of a use.... But of +things annexed to land, it is otherwise, as of commons, +advowsons, and the like appendants or appurtenances.... So a +disseisor, abator, intruder, or the lord by escheat, &c., shall +have them as things annexed to the land. So note a diversity +between a use or warranty, and the like things annexed to the +estate of the land in privity, and commons, advowsons, and other +hereditaments annexed to the possession of the land." /3/ And +this, it seems to me, is the nearest approach which has ever been +made to the truth. + +Coke, in his Commentary on Littleton (385 a), takes a distinction +between a warranty, which binds the party to yield lands in +recompense, and a covenant annexed to the land, which is to yield +but damages. If Lord Coke had [400] meant to distinguish between +warranties and all covenants which in our loose modern sense are +said to run with the land, this statement would be less +satisfactory than the preceding. + +A warranty was a covenant which sometimes yielded but damages, +and a covenant in the old law sometimes yielded land. In looking +at the early cases we are reminded of the still earlier German +procedure, in which it did not matter whether the plaintiff's +claim was founded on a right of property in a thing, or simply on +a contract for it. /1/ Covenant was brought for a freehold under +Edward I., /2/ and under Edward III. it seems that a mill could +be abated by the same action, when maintained contrary to an +easement created by covenant. /3/ But Lord Coke did not mean to +lay down any sweeping doctrine, for his conclusion is, that "a +covenant is in many cases extended further than the warrantie." +Furthermore, this statement, as Lord Coke meant it, is perfectly +consistent with the other and more important distinction between +warranties and rights in the nature of easements or covenants +creating such rights. For Lord Coke's examples are confined to +covenants of the latter sort, being in fact only the cases just +stated from the Year Books. + +Later writers, however, have wholly forgotten the distinction in +question, and accordingly it has failed to settle the disputed +line between conflicting principles. Covenants which started from +the analogy of warranties, and others to which was applied the +language and reasoning of easements, have been confounded +together under the title of [401] covenants running with the +land. The phrase "running with the land" is only appropriate to +covenants which pass like easements. But we can easily see how it +came to be used more loosely. + +It has already been shown that covenants for title, like +warranties, went only to successors of the original covenantee. +The technical expression for the rule was that they were annexed +to the estate in privity. Nothing was easier than to overlook the +technical use of the word "estate," and to say that such +covenants went with the land. This was done, and forthwith all +distinctions became doubtful. It probably had been necessary to +mention assigns in covenants for title, as it certainly had been +to give them the benefit of the ancient warranty; /1/ for this +seems to have been the formal mark of those covenants which +passed only to privies. But it was not necessary to mention +assigns in order to attach easements and the like to land. Why +should it be necessary for one covenant running with the land +more than another? and if necessary for one, why not for all? /2/ +The necessity of such mention in modern times has been supposed +to be governed by a fanciful rule of Lord Coke's. /3/ On the +other hand, the question is raised whether covenants which should +pass irrespective of privity are not governed by the same rule +which governs warranties. + +These questions have not lost their importance. Covenants for +title are in every deed, and other covenants are [402] only less +common, which, it remains to show, belong to the other class. + +Chief among these is the covenant to repair. It has already been +observed that an easement of fencing may be annexed to land, and +it was then asked what was the difference in kind between a right +to have another person build such structures, and a right to have +him repair structures already built. Evidence is not wanting to +show that the likeness was perceived. Only, as such covenants are +rarely, if ever, made, except in leases, there is always privity +to the original parties. For the lease could not, and the +reversion would not be likely to, go by disseisin. + +The Dean of Windsor's Case decides that such a covenant binds an +assignee of the term, although not named. It is reported in two +books of the highest authority, one of the reporters being Lord +Coke, the other Croke, who was also a judge. Croke gives the +reason thus: "For a covenant which runs and rests with the land +lies for or against the assignee at the common law, quia transit +terra cum onere, although the assignees be not named in the +covenant." /1/ This is the reason which governed easements, and +the very phrase which was used to account for all possessors +being bound by a covenant binding a parcel of land to warranty. +Coke says, "For such covenant which extends to the support of the +thing demised is quodammodo appurtenant to it, and goes with it." +Again the language of easements. And to make this plainer, if +need be, it is added, "If a man grants to one estovers to repair +his house, it is appurtenant to his house." Estovers for [403] +repair went with the land, like other rights of common, /1/ +which, as Lord Coke has told us, passed even to disseisors. + +In the next reign the converse proposition was decided, that an +assignee of the reversion was entitled in like manner to the +benefit of the covenant, because "it is a covenant which runs +with the land." /2/ The same law was applied, with still clearer +reason, to a covenant to leave fifteen acres unploughed for +pasture, which was held to bind an assignee not named, /3/ and, +it would seem, to a covenant to keep land properly manured. /4/ + +If the analogy which led to this class of decisions were followed +out, a disseisor could sue or be sued upon such covenants, if the +other facts were of such a kind as to raise the question. There +is nothing but the novelty of the proposition which need prevent +its being accepted. It has been mentioned above, that words of +covenant may annex an easement to land, and that words of grant +may import a covenant. It would be rather narrow to give a +disseisor one remedy, and deny him another, where the right was +one, and the same words made both the grant and the covenant. /5/ + +The language commonly used, however, throws doubt and darkness +over this and every other question connected with the subject. It +is a consequence, already referred to, of confounding covenants +for title, and the class last discussed, [404] under the name of +covenants running with the land. According to the general opinion +there must be a privity of estate between the covenantor and +covenantee in the latter class of cases in order to bind the +assigns of the covenantor. Some have supposed this privity to be +tenure; some, an interest of the covenantee in the land of the +covenantor; and so on. /1/ The first notion is false, the second +misleading, and the proposition to which they are applied is +unfounded. Privity of estate, as used in connection with +covenants at common law, does not mean tenure or easement; it +means succession to a title. /2/ It is never necessary between +covenantor and covenantee, or any other persons, except between +the present owner and the original covenantee. And on principle +it is only necessary between them in those cases--such as +warranties, and probably covenants for title--where, the +covenants being regarded wholly from the side of contract, the +benefit goes by way of succession, and not with the land. + +If now it should be again asked, at the end of this long +discussion, where the line is to be drawn between these two +classes of covenants, the answer is necessarily vague in view of +the authorities. The following propositions may be of some +service. + +*A. With regard to covenants which go with the land:-- + +*(1.) Where either by tradition or good sense the burden of the +obligation would be said, elliptically, to fall on the land of +the covenantor, the creation of such a burden is in theory a +grant or transfer of a partial interest in [405] that land to the +covenantee. As the right of property so created can be asserted +against every possessor of the land, it would not be extravagant +or absurd to allow it to be asserted by the action of covenant. + +*(2.) Where such a right is granted to the owner of a neighboring +piece of land for the benefit of that land, the right will be +attached to the land, and go with it into all hands. The action +of covenant would be allowed to assigns not named, and it would +not be absurd to give it to disseisors. + +*(3.) There is one case of a service, the burden of which does +not fall upon land even in theory, but the benefit of which might +go at common law with land which it benefited. This is the case +of singing and the like by a convent. It will be observed that +the service, although not falling on land, is to be performed by +a corporation permanently seated in the neighborhood. Similar +cases are not likely to arise now. + +*B. With regard to covenants which go only with the estate in the +land:-- + +In general the benefit of covenants which cannot be likened to +grants, and the burden of which does not fall on land, is +confined to the covenantee and those who sustain his persona, +namely, his executor or heir. In certain cases, of which the +original and type was the ancient warranty, and of which the +modern covenants for title are present examples, the sphere of +succession was enlarged by the mention of assigns, and assigns +are still allowed to represent the original covenantee for the +purposes of that contract. But it is only by way of succession +that any other person than the party to the contract can sue upon +it. Hence the plaintiff must always be privy in estate with the +covenantee. + +[406] C. It is impossible, however, to tell by general reasoning +what rights will be held in English law to belong to the former +class, or where the line will be drawn between the two. The +authorities must be consulted as an arbitrary fact. Although it +might sometimes seem that the test of the first was whether the +service was of a nature capable of grant, so that if it rested +purely in covenant it would not follow the land, /1/ yet if this +test were accepted, it has already been shown that, apart from +tradition, some services which do follow the land could only be +matter of covenant. The grant of light and air, a well- +established easement, is called a covenant not to build on the +servient land to the injury of the light, by Baron Parke. /2/ And +although this might be doubted, /3/ it has been seen that at +least one well-established easement, that of fencing, cannot be +considered as a right granted out of the servient land with any +more propriety than a hundred other services which would be only +matter of contract if the law allowed them to be annexed to land +in like manner. The duty to repair exists only by way of +covenant, yet the reasoning of the leading cases is drawn from +the law of easement. On the other hand, a covenant by a lessee to +build a wall upon the leased premises was held, in Spencer's +Case, not to bind assigns unless mentioned; /4/ but Lord Coke +says that it would have bound them if it had purported to. The +analogy of warranty makes its appearance, and throws a doubt on +the fundamental principle of the case. We can only say that the +application [407] of the law is limited by custom, and by the +rule that new and unusual burdens cannot be imposed on land. + +The general object of this Lecture is to discover the theory on +which a man is allowed to enjoy a special right when the facts +out of which the right arises are not true of him. The transfer +of easements presented itself as one case to be explained, and +that has now been analyzed, and its influence on the law has been +traced. But the principle of such transfers is clearly anomalous, +and does not affect the general doctrine of the law. The general +doctrine is that which has been seen exemplified in prescription, +warranty, and such covenants as followed the analogy mentioned +Another illustration which has not yet been is to be found in the +law of uses. + +In old times a use was a chose in action,--that is, was +considered very nearly from the point of view of contract, and it +had a similar history to that which has been traced in other +cases. At first it was doubted whether proof of such a secret +trust ought to be allowed, even as against the heir. /1/ It was +allowed, however, in the end, /2/ and then the principle of +succession was extended to the assign. But it never went further. +Only those who were privies in estate with the original feoffee +to uses, were bound by the use. A disseisor was no more bound by +the confidence reposed in his disseisee, than he was entitled to +vouch his disseisee's warrantor. In the time of Henry VIII. it +was said that "where a use shall be, it is requisite that there +be two things, sc. confidence, and privity:... as I say, if +there be not privity or confidence, [408] then there can be no +use: and hence if the feoffees make a feoffment to one who has +notice of the use, now the law will adjudge him seised to the +first use, since there is sufficient privity between the first +feoffor and him, for if he [i.e. the first feoflor] had warranted +he [the last feoffee] should vouch as assign, which proves +privity; and he is in in the per by the feoffees; but where one +comes into the land in the post, as the lord by escheat or the +disseisor, then the use is altered and changed, because privity +is wanting." /1/ + +To this day it is said that a trust is annexed in privity to the +person and to the estate /2/ (which means to the persona). It is +not regarded as issuing out of the land like a rent, so that +while a rent binds every one who has the land, no matter how, a +disseisor is not bound by the trust. /3/ The case of the lord +taking by escheat has been doubted, /4/ and it will be remembered +that there is a difference between Bracton and later authors as +to whether he comes in as quasi heres or as a stranger. + +Then as to the benefit of the use. We are told that the right to +sue the subpoena descended indeed to the heir, on the ground of +heres eadem persona cum antecessore, but that it was not assets. +/5/ The cestui que use was given power to sell by an early +statute. /6/ But with regard to trusts, Lord Coke tells us that +in the reign of Queen Elizabeth [409] all the judges in England +held that a trust could not be assigned, "because it was a matter +in privity between them, and was in the nature of a chose in +action." /1/ Uses and trusts were both devisable, however, from +an early day, /2/ and now trusts are as alienable as any form of +property. + +The history of early law everywhere shows that the difficulty of +transferring a mere right was greatly felt when the situation of +fact from which it sprung could not also be transferred. Analysis +shows that the difficulty is real. The fiction which made such a +transfer conceivable has now been explained, and its history has +been followed until it has been seen to become a general mode of +thought. It is now a matter of course that the buyer stands in +the shoes of the seller, or, in the language of an old law-book, +/3/ that "the assign is in a manner quasi successor to his +assignor." Whatever peculiarities of our law rest on that +assumption may now be understood. + + + + + +FOOTNOTES + +3/1 E.g. Ine, c. 74; Alfred, c. 42; Ethelred, IV. 4, Section 1. + +3/2 Bract., fol. 144, 145; Fleta, I. c. 40, 41; Co. Lit. 126b; +Hawkins, P.C., Bk. 2, ch. 23, Section 15. + +3/3 Lib. I. c. 2, ad fin. + +3 /4 Bract., fol. 144a, "assulto praemeditato." + +4/1 Fol. 155; cf. 103b. + +4/2 Y.B. 6 Ed. IV. 7, pl. 18. + +4/3 Ibid., and 21 H. VII. 27, pl. 5. + +4/4 D. 47. 9. 9. + +7/1 xxi. 28. + +7/2 [theta], ix. Jowett's Tr., Bk. IX. p. 437; Bohn's Tr., pp. +378, 379. + +7/3 [theta], xv., Jowett, 449; Bohn, 397. + +8/1 [iota alpha], xiv., Jowett, 509; Bohn, 495. + +8/2 [theta], xii., Jowett, 443, 444; Bohn, 388. + +8/3 [Greek words]. 244, 245. + +8/4 l. 28 (11). + +8/5 Solon. + +8/6 "Si quadrupes pauperiem fecisse dicetur actio ex lege +duodecim tabularum descendit; quae lex voluit, aut dari [id] quod +nocuit, id ist, id animal, quod noxiam commisit; aut estimationem +noxiae offerre." D. 9. 1. 1, pr.; Just. Inst. 4. 9; XII Tab., +VIII. 6. + +8/7 Gaii Inst. IV. Sections 75, 76; D. 9. 4. 2, Section 1. "Si +servus furtum faxit noxiam ve noxit." XII Tab., XII.2. Cf. +Just. Inst. 4.8, Section 7. + +9/1 D. 39. 2. 7, Sections 1, 2; Gaii Inst. IV. Section 75. + +9/2 "Noxa caput sequitur." D. 9. 1. 1, Section 12; Inst. 4.8, +Section 5. + +9/3 "Quia desinit dominus esse ubi fera evasit." D. 9. 1. 1, +Section 10; Inst. 4. 9, pr. Compare May v. Burdett, 9 Q.B.101, 113. + +10/1 D. 19. 5. 14, Section 3; Plin. Nat. Hist., XVIII. 3. + +10/2 "In lege antiqua si servus sciente domino furtum fecit, +vel aliam noxiam commisit, servi nomine actio est noxalis, +nec dominus suo nomine tenetur." D. 9. 4. 2. + +10/3 Gaius, Inst. IV. Section 77, says that a noxal action may change +to a direct, and conversely, a direct action to a noxal. If a +paterfamilias commits a tort, and then is adopted or becomes a +slave, a noxal action now lies against his master in place of the +direct one against himself as the wrong-doer. Just. Inst. 4. 8, +Section +5. + +11/1 LL. Alfred, c. 13; 1 Tylor, Primitive Culture, Am. ed., p. +285 et seq.; Bain, Mental and Moral Science, Bk. III. ch. 8, p. +261. + +11/2 Florus, Epitome, II. 18. Cf. Livy, IX 1, 8, VIII. 39; +Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99. + +12/1 Gaii Inst. IV. Section 81. I give the reading of Huschke: "Licere +enim etiam, si fato is fuerit mortuus, mortuum dare; nam quamquam +diximus, non etiam permissum reis esse, et mortuos homines +dedere, tamen et si quis eum dederit, qui fato suo vita +excesserit, aeque liberatur." Ulpian's statement, in D. 9. 1. 1, +Section 13, that the action is gone if the animal dies ante litem +contestatam, is directed only to the point that liability is +founded on possession of the thing. + +12/2 "Bello contra foedus suscepto." + +12/3 Livy, VIII. 39: "Vir...haud dubie proximarum induciarum +ruptor. De eo coacti referre praetores decretum fecerunt 'Ut +Brutulus Papius Romanis dederetur."...Fetiales Romam, ut +censuerunt, missi, et corpus Brutuli exanime: ipse morte +voluntaria ignominiae se ac supplicio subtraxit. Placuit cum +corpore bona quoque ejus dedi." Cf. Zonaras, VII. 26, ed. +Niebuhr, vol. 43, p. 97: [Greek characters]. See further Livy, V. +36, "postulatumque ut pro jure gentium violato Fabii dederentur," +and Ib. I. 32. + +13/1 Livy, IX. 5, 8, 9, 10. "Nam quod deditione nostra negant +exsolvi religione populum, id istos magis ne dedantur, quam quia +ita se res habeat, dicere, quis adeo juris fetialium expers est, +qui ignoret?" The formula of surrender was as follows: "Quandoque +hisce homines injussu populi Romani Quiritium foedus ictum iri +spoponderunt, atque ob eam rem noxam nocuerunt; ob eam rem, quo +populus Romanus scelere impio sit solutus, hosce homines vobis +dedo." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99. + +13/2 De Orator. I. 40, and elsewhere. It is to be noticed that +Florus, in his account, says deditione Mancini expiavit. Epitome, +II. 18. It has already been observed that the cases mentioned by +Livy seem to suggest that the object of the surrender was +expiation, as much as they do that it was satisfaction of a +contract. Zonaras says, Postumius and Calvinus [Greek +characters]. (VII. 26, ed. Niebuhr, Vol. 43, pp. 98, 99.) Cf. ib. +p. 97. Compare Serv. ad Virg. Eclog. IV. 43: "In legibus Numae +cautum est, ut si quis imprudens occidisset hominem pro capite +occisi et natis [agnatis? Huschke] ejus in concione offerret +arietem." Id. Geor. III. 387, and Festus, Subici, Subigere. But +cf. Wordsworth's Fragments and Specimens of Early Latin, note to +XII Tab., XII. 2, p. 538. + +14/1 D. 9. 4. 2 + +14/2 2 Tissot, Droit Penal, 615; 1 Ihering, Geist d. Roem. R., +Section +14; 4 id. Section 63. + +14/3 Aul. Gell. Noctes Attici, 20. 1; Quintil. Inst. Orat. 3. 6. +84; Tertull. Apol., c. 4. + +14/4 Cf. Varro, De Lingua Latina, VI.: "Liber, qui suas operas in +servitute pro pecunia, quam debeat, dum solveret Nexus vocatur." + +15/1 D. 9. 1. 1, Section 9 But cf. 1 Hale, P.C. 420. + +15/2 D. 9. 4. 2, Section 1. + +15/3 D. 9. 1. 1, Sections 4, 5. + +16/1 D. 4. 9. 1, Section 1; ib. 7, Section 4. + +16/2 Gaius in D. 44. 7. 5, Section 6; Just. Inst. 4. 5, Section +3. + +16/3 D. 4. 9. 7, pr. + +17/1 See Austin, Jurisp. (3d ed.) 513; Doctor and Student, Dial. +2, ch. 42. + +17/2 Cf. L. Burgund. XVIII.; L. Rip. XLVI. (al. 48). + +17/3 See the word Lege, Merkel, Lex Salica, p. 103. Cf. Wilda, +Strafrecht der Germanen, 660, n. 1. See further Lex Salica, XL.; +Pactus pro tenore pacis Child. et Chloth., c. 5; Decretio +Chlotharii, c. 5; Edictus Hilperichi, cc. 5, 7; and the +observations of Sohm in his treatise on the Procedure of the +Salic Law, Sections 20, 22, 27, French Tr. (Thevenin), pp. 83 n., +93, 94, 101-103, 130. + +17/4 Wilda, Strafrecht, 590. + +18/1 Cf. Wilda, Strafrecht, 660, n. 1; Merkel, Lex Salica, Gloss. +Lege, p. 103. Lex Saxon. XI. Section 3: "Si servus perpetrato facinore +fugerit, ita ut adomino ulterius inveniri non possit, nihil solvat." +Cf. id. II. Section 5. Capp. Rip. c. 5: "Nemini liceat servum +suum, propter damnum ab illo cuibet inlatum, dimittere; sed justa +qualitatem damni dominus pro illo respondeat vel eum in +compositione aut ad poenam petitori offeret. Si autem servus +perpetrato scelere fugerit, ita ut a domino paenitus inveniri non +possit, sacramento se dominus ejus excusare studeat, quod nec +suae voluntatis nec conscientia fuisset, quod servus ejus tale +facinus commisit." + +18/2 L. Saxon. XI. Section 1. + +18/3 Lex Angl. et Wer. XVI.: "Omne damnum quod servus fecerit +dominus emendet." + +19/1 C. 3; 1 Thorpe, Anc. Laws, pp. 27, 29. + +19/2 C. 74; 1 Thorpe, p. 149; cf. p. 118, n. a. See LL. Hen. I., +LXX. Section 5. + +19/3 C. 24; 1 Thorpe, p. 79. Cf. Ine, c. 42; 1 Thorpe, p. 129. + +19/4 C. 13; 1 Thorpe, p. 71. + +19/5 1 Tylor, Primitive Culture, Am. ed., p. 286. + +20/1 Cf. Record in Molloy, Book 2, ch. 3, Section 16, 24 Ed. III.: +"Visum fuit curiae, quod unusquisque magister navis tenetur +respondere de quacunque transgressione per servientes suos in +navi sua facta." The Laws of Oleron were relied on in this case. +Cf. Stat. of the Staple, Ed. III., Stat. 2, c. 19. Later, the +influence of the Roman law is clear. + +20/2 Quon. Attach., c. 48, pl. 10 et seq. Cf. The Forme and Maner +of Baron Courts, c. 62 et seq. + +21/1 Forme and Maner of Baron Courts, c. 63. + +21/2 C. 64. This substantially follows the Quoniam Attachiamenta, +c. 48, pl. 13, but is a little clearer. Contra, Fitzh. Abr. +Corone, Pl. 389, 8 Ed. II. + +22/1 Fitzh. Abr. Barre, pl. 290. + +22/2 Mitchil v. Alestree, 1 Vent. 295; S.C. 2 Lev. 172; S.C. 3 +Keb. 650. Cf. May b. Burdett, 9 Q.B.101, 113. + +22/3 May v. Burdett, 9 Q.B.101. + +22/4 Mason v. Keeling, 12 Mod. 332, 335; S.C. 1 Ld. Raym. 606, +608. + +23/1 Williams, J. in Cox v. Burbidge, 13 C.B. N.S. 430, 438. Cf. +Willes, J. in Read v. Edwards, 17 C.B. N.S. 245, 261. + +23/2 Mason v. Keeling, 1 Ld. Raym. 606, 608. + +23/3 In the laws of Ine, c. 42 (1 Thorpe, Anc. Laws, 129), +personal liability seems to be imposed where there is a failure +to fence. But if an animal breaks hedges the only remedy +mentioned is to kill it, the owner to have the skin and flesh, +and forfeit the rest. The defendant was held "because it was +found that this was for default of guarding them,...for default +of good guard," in 27 Ass., pl. 56, fol. 141, A.D. 1353 or 1354. +It is much later that the reason is stated in the absolute form, +"because I am bound by law to keep my beasts without doing wrong +to any one." Mich. 12 Henry VII., Keilway, 3b, pl. 7. See, +further, the distinctions as to a horse killing a man in Regiam +Majestatem, IV, c. 24. + +24/1 Fol. 128. + +24/2 Cf. 1 Britton (Nich.), 6a, b, 16 (top paging 15, 39); +Bract., fol. 136b; LL. Alfred, c. 13 (1 Thorpe, Anc. Laws, p. +71); Lex Saxon., Tit. XIII.; Leg Alamann., Tit. CIII. 24. + +25/1 Fleta, I. 26, Section 10; Fitzh. Abr. Corone, pl. 416. See +generally Staundforde, P.C., I. c. 2, fol. 20 et seq.; 1 Hale, +P.C. 410 et seq. + +25/2 Doctor and Student, Dial. 2, c. 51. + +25/3 Plowd. 260. + +25/4 Jacob, Law Dict. Deodand. + +25/5 Y.B. 30 & 31 Ed. I., pp. 524, 525; cf. Bract., fol. 136b. + +26/1 Fitzh. Abr. Corone, pl. 403. + +26/2 Bract. 122; 1 Britton (Nich.), top p. 16; Fleta, Ic. 25, +Section 9, fol. 37. + +26/3 1 Hale, P.C. 423. + +26/4 1 Rot. Parl. 372; 2 Rot. Parl. 345, 372a, b; 3 Rot. Parl. +94a, 120a, 121; 4 Rot. Parl. 12a, b, 492b, 493. But see 1 Hale, +P.C. 423. + +26/5 1 Black Book of the Admiralty, 242. + +27/1 Cf. Ticonderoga, Swabey, 215, 217. + +27/2 China, 7 Wall. 53. + +28/1 Doctor and Student, Dial. 2, c. 51. + +28/2 1 Roll. Abr. 530 (C) 1. + +29/1 3 Black Book of Adm. 103. + +29/2 Malek Adhel, 2 How. 210, 234. + +30/1 3 Kent, 218; Customs of the Sea, cap. 27, 141, 182, in 3 +Black Book of the Admiralty, 103, 243, 245. + +31/1 3 Kent's Comm. 188. + +31/2 Clay v. Snelgrave, 1 Ld. Raym. 576, 577; S.C. 1 Salk. 33. +Cf. Molloy, p. 355, Book II. ch. 3, Section 8. + +31/3 "Ans perdront lurs loers quant la nef est perdue." 2 Black +Book, 213. This is from the Judgments of the Sea, which, +according to the editor (II., pp. xliv., xlvii.), is the most +ancient extant source of modern maritime law except the decisions +of Trani. So Molloy, Book II. ch. 3, Section 7, p. 354: "If the +ship perishes at sea they lose their wages." So 1 Siderfin, +236, pl. 2. + +32/1 3 Black Book, pp. lix., lxxiv. + +32/2 3 Black Book, 263. It should be added, however, that it is +laid down in the same book that, if the vessel is detained in +port by the local authorities, the master is not bound to give +the mariners wages, "for he has earned no freight." + +32/3 Lipson v. Harrison, 2 Weekly Rep. 10. Cf. Louisa Jane, 2 +Lowell, 295. + +32/4 3 Kent's Comm. (12th ed.), 218; ib. 138, n. 1. + +32/5 3 Kent, 218. + +32/6 Justin v. Ballam, 1 Salk. 34; S.C. 2 Ld. Raym. 805. + +33/1 D. 20. 4. 5 & 6; cf. Livy, XXX. 38. + +33/2 Pardessus, Droit. Comm., n. 961. + +33/3 3 Keb. 112, 114, citing 1 Roll. Abr. 530. + +34/1 Godbolt, 260. + +34/2 3 Colquhoun, Roman Civil Law, Section 2196. + +35/1 Lex Salica (Merkel), LXXVII.; Ed. Hilperich., Section 5. + +36/1 See Lecture III., ad fin. + +39/1 Cf. 2 Hawk. P.C. 303 et seq.; 27 Ass. 25. + +40/1 2 Palgrave, Commonwealth, cxxx., cxxxi. + +41/1 Butler, Sermons, VIII. Bentham, Theory of Legislation +(Principles of Penal Code, Part 2, ch. 16), Hildreth's tr., p. +309. + +41/2 General View of the Criminal Law of England, p. 99. + +43/1 Wharton, Crim. Law, (8th ed.) Section 8, n. 1. + +43/2 Ibid., Section 7. + +43/3 Even the law recognizes that this is a sacrifice. +Commonwealth v. Sawin, 2 Pick. (Mass.) 547, 549. + +47/1 Cf. 1 East, P.C. 294; United States v. Holmes, 1 Wall. Jr. +1; 1 Bishop, Crim. Law, Sections 347-349, 845 (6th ed.); 4 Bl. +Comm. +31. + +51/1 Art. 223. + +51/2 General View of the Criminal Law of England, p. 116. + +53/1 Harris, Criminal Law, p. 13. + +53/2 Steph. Dig. Crim. Law, Art. 223, Illustration (6), and n. 1. + +56/1 4 Bl. Comm. 192. + +57/1 Cf. 4 Bl. Comm. 197. + +58/1 Reg. v. Hibbert, L.R. 1 C.C. 184. + +59/1 Reg. v. Prince, L.R. 2 C.C. 154. + +59/2 Commonwealth v. Hallett, 103 Mass. 452. + +60/1 Stephen, Dig. Cr. Law, Art. 223, Illustr. (5); Foster, 294, +295. + +60/2 Cf. Gray's case, cited 2 Strange, 774. + +60/3 Steph. Dig., Art. 223, Illustr. (1). + +60/4 Steph. Dig., Art. 223, Illustr. (8). + +60/5 Rex v. Mastin, 6 C.&P. 396. Cf. Reg. v. Swindall, 2 C. & K. +230. + +60/6 4 Bl. Comm. 192. + +62/1 Steph. Dig. Cr. Law, Art. 225. + +62/2 Rex v. Shaw, 6 C.&P. 372. + +62/3 Rex v. Oneby, 2 Strange, 766, 773. + +62/4 Rex v. Hayward, 6 C.&P. 157. + +63/1 Commonwealth v. Walden, 3 Cush. (Mass.) 558. Cf. Steph. Gen. +View of the Crim. Law, 84. + +64/1 2 Bishop Crim. Law, Section 14 (6th ed.). + +64/2 Glanv., Lib. XIV. c. 4. + +64/3 Bract., fol. 146b. + +64/4 Ibid. + +64/5 2 East, P.C., c. 21, Sections 7, 8, pp. 1027, 1031. + +66/1 1 Bishop, Crim. Law, Section 735 (6th ed.). + +66/2 Reg. v. Dilworth, 2 Moo. & Rob. 531; Reg. v. Jones, 9 C.&P. +258. The statement that a man is presumed to intend the natural +consequences of his acts is a mere fiction disguising the true +theory. See Lecture IV. + +67/1 Reg. v. Taylor, 1 F. & F. 511. + +67/2 Reg. v. Roberts, 25 L. J. M. C. 17; S.C. Dearsly, C., C. +539. + +68/1 Lewis v. The State, 35 Ala. 380. + +69/1 See M'Pherson's Case, Dearsly & Bell, 197, 201, Bramwell, B. + +69/2 Cf. 1 Bishop, Crim. Law, Sections 741-745 (6th ed.). + +71/1 2 Bishop, Crim. Law, Section 758 (6th ed.). + +73/1 Cf. Stephen, General View of Criminal Law of England, 49 et +seq. + +73/2 Cf. Stephen, General View, 49-52; 2 East, P.C. 553. + +74/1 Rex v. Cabbage, Russ. & Ry. 292. + +74/2 Cf. 4 Bl. Comm. 224; Steph. Dig. Crim. Law, Arts. 316, 319. + +74/3 Cf. 4 Bl. Comm. 227, 228. + +75/1 1 Starkie, Cr. Pl. 177. This doctrine goes further than my +argument requires. For if burglary were dealt with only on the +footing of an attempt, the whole crime would have to be complete +at the moment of breaking into the house. Cf. Rex v. Furnival, +Russ. & Ry. 445. + +81/1 See Lecture VII. + +82/1 Austin, Jurisprudence (3d ed.), 440 et seq., 474, 484, Lect. +XX., XXIV., XXV. + +84/1 Lib. I. c. 2, ad fin. + +85/1 Hist. English Law, I. 113 (bis), n.a; Id., ed. Finlason, I. +178, n. 1. Fitzherbert (N.B. 85, F.) says that in the vicontiel +writ of trespass, which is not returnable into the king's court, +it shall not be said quare vi et armis. Cf. Ib. 86, H. + +85/2 Milman v. Dolwell, 2 Camp. 378; Knapp v. Salsbury, 2 Camp. +500; Peafey v. Walter, 6 C.&P. 232; Hall v. Fearnley, 3 Q.B. 919. + +85/3 Y.B. 6 Ed. IV. 7, pl. 18, A.D. 1466; cf. Ames, Cases in +Tort, 69, for a translation, which has been followed for the most +part. + +87/1 Y.B. 21 Hen. VII. 27, pl. 5, A.D. 1506. + +87/2 Cf. Bract., fol. 136 b. But cf. Stat. of Gloucester, 6 Ed. +I. c. 9; Y.B. 2 Hen. IV. 18, pl. 8, by Thirning; Essays in Ang. +Sax. Law, 276. + +87/3 Hobart, 134, A.D. 1616. + +87/4 Sir T. Jones, 205, A.D. 1682. + +87/5 1 Strange, 596, A.D. 1723. + +87/6 2 Keyes, 169, A.D. 1865. + +88/1 Anonymous, Cro. Eliz. 10, A.D. 1582. + +88/2 Sir T. Raym. 467, A.D. 1682. + +88/3 Scott v. Shepherd, 2 Wm. B1. 892, A.D. 1773. + +88/4 3 East, 593. See, further, Coleridge's note to 3 Bl. Comm. +123; Saunders, Negligence, ch. 1, Section I; argument in Fletcher +v. Rylands, 3 H.&C. 774, 783; Lord Cranworth, in S.C., L.R. 3 H. L. +330, 341. + +90/1 Ex. gr. Metropolitan Railway Co. v. Jackson, 3 App. Cas. +193. See M'Manus v. Crickett, 1 East, 106, 108. + +91/1 1 Ld. Raym. 38; S.C. Salk. 637; 4 Mod. 404; A.D. 1695. + +92/1 2 Wm. Bl. 892. Cf. Clark v. Chambers, 3 Q.B.D. 327, 330, +338. + +92/2 7 Vt, 62. + +93/1 Smith v. London & South-Western Railway Co., L.R. 6 C.P. 14, +21. Cf. S.C., 5 id. 98, 103, 106. + +93/2 Sharp v. Powell, L.R. 7 C.P. 253. Cf. Clark v. Chambers, 3 +Q.B.D. 327, 336-338. Many American cases could be cited which +carry the doctrine further. But it is desired to lay down no +proposition which admits of controversy, and it is enough for the +present purposes that Si home fait un loyal act, que apres devint +illoyal, ceo est damnum sine injuria. Latch, 13. I purposely omit +any discussion of the true rule of damages where it is once +settled that a wrong has been done. The text regards only the +tests by which it is decided whether a wrong has been done. + +94/1 Mitchil v. Alestree, 1 Ventris, 295; S.C., 3 Keb. 650; 2 +Lev. 172. Compare Hammack v. White, 11 C.B. N.S. 588; infra, p. +158. + +95/1 Harvey v. Dunlop, Hill & Denio, (Lalor,) 193. + +95/2 See Lecture II. pp. 54, 55. + +97/1 cf. Hobart v. Hagget, 3 Fairf. (Me.) 67. + +98/1 See Bonomi v. Backhouse, El. Bl. & El. 622, Coleridge, J., +at p. 640. + +99/1 3 Levirtz, 87, A.D. 1681. + +99/2 Compare the rule as to cattle in Y.B. 22 Edw. IV. 8, pl. 24, +stated below, p. 118. + +100/1 Disc. 123, pr.; 124, Sections 2, 3. As to the historical +origin of the latter rule, compare Lecture V. + +101/1 Lecture I, pp. 3, 4. + +101/2 Lib. I. c. 2, ad. fin. + +101/3 Fol. 155. + +101/4 Bro. Trespass, pl. 119; Finch, 198; 3 Bl. Comm. 118, 119. + +101/5 See Brunner, Schwurgerichte, p. 171. + +101/6 An example of the year 1195 will be found in Mr. Bigelow's +very interesting and valuable Placita Anglo-Normanica, p. 285, +citing Rot. Cur. Regis, 38; S.C. ? Abbr. Plac., fol. 2, Ebor. +rot. 5. The suit was by way of appeal; the cause of action, a +felonious trespass. Cf. Bract., fol. 144 a. + +102/1 An example may be seen in the Year Book, 30 & 31 Edward I. +(Horwood), p. 106. + +103/1 6 Ed. IV. 7, pl. 18. + +103/2 Popham, 151; Latch, 13, 119, A.D. 1605. + +104/1 Hobart, 134, A.D. 1616. + +104/2 3 East, 593. + +105/1 1 Bing. 213, A.D. 1823. + +105/2 6 Cush. 292. + +106/1 Morris v. Platt, 32 Conn. 75, 84 et seq., A.D. 1864. + +106/2 Nitro-glycerine Case (Parrot v. Wells), 15 Wall. 524, 538. + +106/3 Hill & Denio, (Lalor,) 193; Losee v. Buchanan, 51 N.Y. 476, +489. + +107/1 Vincent v. Stinehour, 7 Vt. 62. See, further, Clayton, 22, +pl. 38; Holt, C.J., in Cole v. Turner, 6 Mod. 149; Lord +Hardwicke, in Williams v. Jones, Cas. temp. Hardw. 298; Hall v. +Fearnley, 8 Q.B. 919; Martin, B., in Coward v. Baddeley, 4 H.&N. +478; Holmes v. Mather, L.R. 10 Ex. 261; Bizzell v. Booker, 16 +Ark. 308; Brown v. Collins, 53 N.H. 442. + +107/2 Blyth v. Birmingham Waterworks Co., 11 Exch. 781, 784; +Smith v. London & South-Western Ry. Co., L.R. 5 C.P. 98, 102. +Compare Campbell, Negligence, Section 1 (2d ed.), for Austin's +point of view. + +109/1 cf. Bro. Corone, pl. 6; Neal v. Gillett, 23 Conn. 437, 442; +D. 9. 2. 5, Section 2; D. 48. 8. 12. + +113/1 I Thorpe, p. 85; cf. LL. Hen. I., c. 88, Section 3. + +113/2 Spofford v. Harlow, 3 Allen, 176. + +114/1 See 27 Ass., pl. 56, fol. 141; Y.B. 43 Edw. III. 33, pl. +38. The plea in the latter case was that the defendant performed +the cure as well as he knew how, without this that the horse died +for default of his care. The inducement, at least, of this plea +seems to deal with negligence as meaning the actual state of the +party's mind. + +115/1 Hobart, 134. + +115/2 See Knight v. Jermin, Cro. Eliz. 134; Chambers v. Taylor, +Cro. Eliz. 900. + +115/3 32 Conn. 75, 89, 90. + +116/1 Y.B. 12 Hen. VIII. 2 b, Pl. 2. + +116/2 Keilway, 46 b. + +116/3 L.R. 3 H.L. 330, 339; L.R. 1 Ex. 265, 279-282; 4 H.&C. 263; +3 id. 774. + +117/1 See Card v. Case, 5 C.B. 622, 633, 634. + +117/2 See Lecture I. p. 23 and n. 3. + +117/3 Mitten v. Fandrye, Popham, 161; S.C., 1 Sir W. Jones, 136; +S.C., nom. Millen v. Hawery, Latch, 13; id. 119. In the latter +report, at p. 120, after reciting the opinion of the court in +accordance with the text, it is said that judgment was given non +obstant for the plaintiff; contrary to the earlier statement in +the same book, and to Popham and Jones; but the principle was at +all events admitted. For the limit, see Read v. Edwards, 17 C.B. +N.S. 245. + +118/1 Y.B. 22 Edw. IV. 8, pl. 24. + +118/2 Popham, at p. 162; S.C., Latch, at p. 120; cf. Mason v. +Keeling, 1 Ld. Raym. 606, 608. But cf. Y.B. 20 Edw. IV. 10, 11, +pl. 10. + +118/3 Latch, at p. 120. This is a further illustration of the +very practical grounds on which the law of trespass was settled. + +118/4 12 Mod. 332, 335; S.C., 1 Ld. Raym. 606, 608. + +118/5 12 Mod. 335; Dyer, 25 b, pl. 162, and cas. in marg.; 4 Co. +Rep. 18 b; Buxendin v. Sharp, 2 Salk. 662; S.C., 3 Salk. 169; +S.C., nom. Bayntine v. Sharp, 1 Lutw. 90; Smith v. Pelah, 2 +Strange, 264; May v. Burdett, 9 Q.B. 101; Card v. Case, 5 C.B. +622. + +119/1 12 Mod. 335. See Andrew Baker's case, 1 Hale, P.C. 430. + +119/2 Besozzi v. Harris, 1 F.&F. 92. + +119/3 See Fletcher v. Rylands, L.R. I Ex. 265, 281, 282; Cox v. +Burbridge, 13 C.B. N.S. 430, 441; Read v. Edwards, 17 C.B. N.S. +245, 260; Lee v. Riley, 18 C.B. N.S. 722; Ellis v. Loftus Iron +Co., L.R. 10 C.P. 10; 27 Ass., pl. 56, fol. 141; Y.B. 20 Ed. IV. +11, pl. 10; 13 Hen. VII. 15, pl. 10; Keilway, 3 b, pl. 7. Cf. 4 +Kent (12th ed.), 110, n. 1, ad fin. + +120/1 2 Ld. Raym. 909; 13 Am. L.R. 609. + +120/2 See Grill v. General Iron Screw Collier Co., L.R. 1 C.P. +600, 612, 614. + +120/3 Railroad Co. v. Lockwood, 17 Wall. 357, 383. + +121/1 L.R. 1 C.P. 300. + +121/2 See Gorham v. Gross, 125 Mass. 232, 239, bottom. + +121/3 Minor v. Sharon, 112 Mass. 477, 487. + +122/1 See Winsmore v. Greenbank, Willes, 577, 583; Rex v. Oneby, +2 Strange, 766, 773; Lampleigh v. Brathwait, Hobart, 105, 107; +Wigram, Disc., pl. 249; Evans on Pleading, 49, 138, 139, 143 et +seq.; Id., Miller's ed., pp. 147, 149. + +123/1 See Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 +Mich. 99, 120. + +123/2 In the small-pox case, Minor v. Sharon, 112 Mass. 477, +while the court ruled with regard to the defendant's conduct as +has been mentioned, it held that whether the plaintiff was guilty +of contributory negligence in not having vaccinated his children +was "a question of fact, and was properly left to the jury." p. +488. + +124/1 Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193, 197. + +125/1 See Kearney v. London, Brighton & S. Coast Ry. Co., L.R. 5 +Q.B. 411, 414, 417; S.C., 6 id. 759. + +125/2 Byrne v. Boadle, 2 H. & C. 722. + +125/3 See Skinnier v. Lodon, Brighton, & S. Coast Ry. Co., 5 +Exch. 787. But cf. Hammack v. White, 11 C.B. N.S. 588, 594. + +127/1 7 American Law Review, 654 et seq., July, 1873. + +128/1 Callahan v. Bean, 9 Allen, 401. + +128/2 Carter v. Towne, 98 Mass. 567. + +128/3 Lovett v. Salem & South Danvers R. R. Co., 9 Allen, 557. + +128/4 Back v. Stacey, 2 C.&P. 465. + +128/5 Cf. Beadel v. Perry, L.R. 3 Eq. 465; City of London Brewery +Co. v. Termant, L.R. 9 Ch. 212, 220; Hackett v. Baiss, L.R. 20 +Eq. 494; Theed v. Debenham, 2 Ch. D. 165. + +135/1 Williamson v. Allison, 2 East, 446. + +136/1 Leather v. Simpson, L.R. 11 Eq. 398, 406. On the other +hand, the extreme moral view is stated in Weir v. Bell, 3 Ex. D. +238, 243. + +138/1 As to actual knowledge and intent, see Lecture II. p. 57. + +141/1 Cf. Knight v. German, Cro. Eliz. 70; S.C., ib. 134. + +141/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 594; Turner v. Ambler, +10 Q.B. 252, 257, 261. + +142/1 Redfield, C. J. in Barron v. Mason, 31 Vt. 189, 197. + +142/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 595. + +143/1 See Burton v. Fulton, 49 Penn. St. 151. + +144/1 Rolfe, B. in Fouldes v. Willoughby, 8 Meeson & Welsby, 540. + +145/1 Supra, pp. 115 et seq. + +147/1 See, e.g., Cooley, Torts, 164. + +147/2 Rex v. Dixon, 3 Maule & Selwyn, 11, 15; Reg. v. Hicklin, +L.R. 3 Q.B. 360; 5 C.&P. 266, n. + +148/1 Aleyn, 35; Style, 72; A.D. 1648. + +149/1 1 Kent (12th ed.), 467, n. 1; 6 Am. Law Rev. 723-725; 7 id. +652. + +149/2 2 Wm. Bl. 892, A.D. 1773; supra, p. 92; Addison on Torts +(4th ed.), 264, citing Y.B. 37 Hen. VI. 37, pl. 26, which hardly +sustains the broad language of the text. + +151/1 Compare Crouch v. London & N. W. R. Co., 14 C.B. 255, 283; +Calye's Case, 8 Co. Rep. 32; Co. Lit. 89 a, n. 7; 1 Ch. Pl. (lst +ed,), 219, (6th ed.), 216, 217; 7 Am. Law Rev. 656 et seq. + +151/2 But cf. The Pawashick, 2 Lowell, 142. + +151/3 Gibson v. Stevens, 8 How. 384, 398, 399; Barnett v. +Brandao, 6 Man. & Gr. 630, 665; Hawkins v. Cardy, 1 Ld. Raym. +360. + +151/4 Pickering v. Barkley, Style, 132; Wegerstoffe v. Keene, 1 +Strange, 214, 216, 223; Smith v. Kendall, 6 T. R. 123, 124. + +155/1 Card v. Case, 5 C.B. 622, 634. Cf. Austin (3d ed.), 513. + +156/1 Rylands v. Fletcher, L.R. 3 H.L. 330; supra, p. 116. + +156/2 See Marshall v. Welwood, 38 N.J. (9 Vroom), 339; 2 +Thompson, Negligence, 1234, n. 3. + +157/1 Gorham v. Gross, 125 Mass. 232; supra, p. 117. + +158/1 Mitchil v. Alestree, 1 Vent. 295; S.C., 3 Keb. 650; 2 Lev. +172; supra, p. 94. + +158/2 Hammack v. White, 11 C.B. N.S. 588. + +166/1 Laband, Vermogensrechtlichen Klagen, Section 16, pp. 108 +et seq.; Heusler, Gewere, 487, 492. These authors correct the +earlier opinion of Bruns, R. d. Besitzes, Section 37, pp. 313 et +seq., adopted by Sohm in his Proc. d. Lex Salica, Section 9. Cf. +the discussion of sua in writs of trespass, &c. in the English +law, at the end of Lecture VI. Those who wish short accounts in +English may consult North Amer. Rev., CX. 210, and see Id., +CXVIII. 416; Essays in Anglo-Saxon Law, pp. 212 et seq. Our +knowledge as to the primitive form of action is somewhat meagre +and dependent on inference. Some of the earliest texts are Ed. +Liutpr. 131; Lex Baiw., XV. 4; L. Frision. Add. X.; L. Visig., +V.5. I; L. Burg., XLIX. I, 2. The edict of Liutprand, dealing +with housebreaking followed by theft of property left in charge +of the householder, lays down that the owner shall look to the +bailee alone, and the bailee shall hold the thief both for the +housebreaking and for the stolen goods. Because, as it says, we +cannot raise two claims out of one causa; somewhat as our law was +unable to divide the severing a thing from the realty, and the +conversion of it, into two different wrongs. Compare, further, +Jones, Bailm. 112; Exodus xxii. 10-12; LL. Alfred, 28; I Thorpe, +Anc. L., p. 51; Gaii Inst., III. Sections 202-207. + +167/1 XXXI. 16. + +168/1 "Peterit enim rem suam petere [civiliter] ut adiratam per +testimonium proborum hominum, et sic consequi rem suam quamvia +furatam. . . Et non refert utrum res que ita subtracta fuit +extiterit illius appellantis propria vel alterius, dum tamen de +custodia sua." Bract., fol. 150 b, 151; Britton (Nich. ed.), I. +59, 60 [23 b], De Larcyns; cf. ib. 67 [26 b]; Fleta, fol. 5i, L. +I. c. 38, Section 1. + +169/1 Y.B. 21 & 22 Ed. I. 466-468, noticed in North Amer. Rev., +CXVIII. 421, n. (So Britton [26 b], "Si il puse averreer la +perte.") This is not trover. The declaration in detinue per +inventionem was called "un newfound Haliday" in Y.B. 33 Hen. VI. +26, 27; cf. 7 Hen. VI. 22, pl. 3; Isack v. Clarke, I Rolle, R. +126, 128. + +169/2 Y.B. 2 Ed. IV. 4, 5, pl. 9; 21 Hen. VII. 39, pl. 49; Bro. +Trespass, pl. 216, 295. + +169/3 2 Wms. Saund. 47, n. 1. See above, p. 167. + +170/1 Notes to Saunders, Wilbraham v. Snow, note (h). + +170/2 Y.B. 11 Hen. IV. 23, 24. See, further, Y.B. 8 Ed. IV. 6, +pl. 5; 9 Ed. IV. 34, pl. 9; 3 Hen. VII. 4, pl. 16; 20 Hen. VII. +1, pl. 1; 21 Hen. VII. 14 b, pl. 23; 13 Co. Rep. 69; 1 Roll. Abr. +4(I), pl. I; F. N. B. 86, n. a; supra, p. 167. + +170/3 Fitz. Abr. Barre, pl. 130; Y.B. 9 Ed. IV. 34, pl. 9; 12 Am. +Law Rev. 694. + +171/1 2 Steph. Comm. (6th ed.), 83, cited Dicey, Parties, 353; 2 +Bl. Comm. 453; 2 Kent, 585. As the bailee recovered the whole +value of the goods, the old reason, that he was answerable over, +has in some cases become a new rule, (seemingly based on a +misunderstanding,) that the bailee is a trustee for the bailor as +to the excess over his own damage. Cf. Lyle v. Barker, 5 Binn. +457, 460; 7 Cowen, 68l, n.; White v. Webb, 15 Conn. 302, 305; in +the order cited. (Thence the new rule has been extended to +insurance recovered by a bailee. 1 Hall, N. Y. 84, 91; 3 Kent's +Comm. (12th ed.), 371, 376, n. 1 (a).) In this form it ceases to +be a reason for allowing the action. + +171/2 Y.B. 48 Ed. III. 20, pl. 8; Bro. Trespass, pl. 67. Cf. 1 +Britton (Nich. ed.), 67 [26 b]; Y.B. 6 Hen. VI1. 12, pl. 9; 12 +Ed. IV. 13, pl. 9; 12 Am. Law Rev. 694. + +172/1 Y.B. 22 Ed. IV. 5, pl. 16. + +172/2 2 Rolle, Abr. 569, Trespass, 5. Cf. Y.B. 20 Hen. VII. 5, +pl. 15; 21 Hen. VII. 39, pl. 49; Clayton, 135, pl. 243; 2 Wms. +Saund. 47 e (3d ed.). + +172/3 Bro. Trespass, pl, 67 in marg.; cf. Ed. Liutpr. 131, cited +supra, p. 166, n. + +172/4 In one instance, where, against the opinion of Brian, the +bailor was allowed to sue for damage to the chattel by a +stranger, the action seems to have been case. Y.B. 12 Ed. IV. 13, +pl. 9; cf. the margin of the report. + +173/1 Gordon v. Harper, 7 T. R. 9; Lord v. Price, L. IL 9 Ex. 54; +Muggridge v. Eveleth, 9 Met. 233. Cf. Clayton, 135, pl. 243. + +173/2 Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v. +Williams, 4 Exch. 339, 343, 344; Morgan v. Ide, 8 Cush. 420; +Strong v. Adams, 30 Vt. 221, 223; Little v. Fosseft, 34 Me. 545. + +173/3 2 Camp. 464; cf. Mears v. London & South-Western Railway +Co., 11 C.B. N.S. 849, 854. + +173/4 Addison, Torts (4th ed.), 364. + +174/1 Wms. Pers. Prop., 26 (5th ed.), 27 (7th ed.). + +174/2 Booth v. Wilson, I B. & Ald. 59; Y.B. 48 Ed. III. 20, pl. +8; 11 Hen. IV. 17, pl. 39; 11 Hen. IV. 23, 24, pl. 46 (Tre. "ou +d'apprompter"); 21 Hen. VII. 14b, pl. 23; Godbolt, 173, pl. 239; +Sutton v. Buck, 2 Taunt. 302, 309; Burton v. Hughes, 2 Bing. 173; +Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v. Williams, 4 +Exch. 339, 343, 344; 2 Wms. Saund., note to Wilbraham v. Snow; 2 +Kent, 585, 568, 574; Moran v. Portland S. P. Co., 35 Me. 55. See, +further, Lecture VI. ad fin. + +175/1 Cf. Lord v. Price, L.R. 9 Ex. 54, 56, supra, p. 172. + +175/2 Supra, p. 167. + +175/3 Lib. X. c. 13; cf. I., c. 8. + +175/4 "Is qui rem commodatam accepit, ad ipsam restituendam +tenetur, vel ejus precium, si forte incendio, ruins, naufragio, +ant latronum, vel hostium incursu, consumpta fuerit vel +deperdita, substracts, vel ablata." Fol. 99 a, b. This has been +thought a corrupt text (Guterbock, Bracton, by Coxe, p. 175; 2 +Twiss, Bract. Int. xxviii.), but agrees with Glanvill, supra, and +with Fleta, L. II. c. 56, Section 5. + +175/5 Bract., fol. 62 b, c. 28, Section 2; Fleta, L. II. e. 59, +Section 4, fol. 128. Cf. Just. Inst. 3. 24, Section 5; ib. 15, +Section 2. + +176/1 Y.B. 8 Ed. II. 275; Fitz. Detinue, pl. 59. + +176/2 2 Ld. Raym. 909. + +176/3 Y.B. 13 Ed. IV. 9, pl. 5. See Lecture VI. + +176/4 29 Ass. 163, pl. 28. + +176/5 Cf. Ratcliff v. Davis, Yelv. 178; Cro. Jac. 244; Noy, 137; +1 Bulstr. 29. + +176/6 Y.B. 33 Hen. VI. 1, pl. 3. This case is cited and largely +relied on in Woodlife's Case, infra; Southcote v. Bennett, infra; +Pickering v. Barkley, Style, 132 (24 Car. I., covenant on a +charter-party); and Morse v. Slue, infra; in short, in all the +leading cases on bailment. + +177/1 Cf. Abbreviatio Plaeitorum, p. 343, col. 2, rot. 87, 17 Ed. +II. + +178/1 Y.B. 9 Ed. IV. 34, pl. 9; 2 Ed. IV. 15, pl. 7. It is proper +to add, that in the latter case Littleton does not seem to +distinguish between servants and bailees. + +178/2 Y.B. 9 Ed. IV, 40, pl. 22. So Brian, in 20 Ed. IV. 11, pl. +10, ad fin. + +178/3 Y.B. 10 Hen. VII. 25, 26, pl. 3. + +178/4 Cf. L. Baiw., XV. 5; Y.B. 33 Hen. VI. 1, pl. 3. + +178/5 Y.B. 6 Hen. VII. 12, pl. 9; Bro. Detinue, pl. 37; 10 Hen. +VI. 21, pl. 69. + +178/6 Y.B. 3 Hen. VII. 4, pl. 16. Cf. 10 Hen. VI. 21, pl. 69. + +178/7 Y.B. 11 Hen. IV. 23, 24; 6 Hen. VII. 12, pl. 9. + +178/8 Cro. Eliz. 815; 4 Co. Rep. 83 b; Co. Lit. 89; 2 BI. Comm. +452. + +180/1 Savile, 133, 134. Cf. Bro. Accion sur le Case, pl. 103; +Dyer, 161 a, b. + +180/2 Nugent v. Smith, 1 C.P. D. 19, Brett, J., at p. 28. + +180/3 Nugent v. Smith, 1 C.P. D. 423, Cockburn, C. J., at p. 428. + +181/1 Moore, 462; Owen, 57. + +181/2 Dial. 2, ch. 38, A.D. 1530. + +182/1 Keilway, 160, pl. 2 (2 Hen. VIII.); cf. ib. 77b (21 Hen. +VII.). + +182/2 Y.B. 33 Hen. VI. 1, pl. 3. + +182/3 4 Co. Rep. 83 b; Cro. Eliz. 815. + +183/1 Keilway, 160, pl. 2. + +183/2 Y.B. 19 Hen. VI. 49, ad fin. Cf. Mulgrave v. Ogden, Cro. +Eliz. 219; S.C., Owen, 141, 1 Leon. 224; with Isaack v. Clark, 2 +Bulstr. 306, at p. 312, Coke, J. + +183/3 See Lecture VII. + +184/1 Paston, J., in Y.B. 19 Hen. VI. 49. See, also, Rogers v. +Head, Cro. Jac. 262; Rich v. Kneeland, Cro. Jac. 330, which will +be mentioned again. An innkeeper must be a common innkeeper, Y.B. +11 Hen. IV. 45. See further, 3 Bl. Comm. 165, where "the +transition from status to contract" will be found to have taken +place. + +184/2 F. N. B. 94 D; infra, p. 203. + +184/3 Y.B. 7 Hen. IV. 14; 12 Ed. IV. 13, pl. 9, 10; Dyer, 22 b. + +184/4 The process may be traced by reading, in the following +order, Y.B. 2 Hen. VII. 11; Keilway, 77 b, ad fin. (21 Hen. +VII.); ib. 160, pl. 2 (2 Hen. VIII.); Drake v. Royman, Savile, +133, 134 (36 Eliz.); Mosley v. Fosset, Moore, 543 (40 Eliz.); 1 +Roll. Abr. 4, F, pl. 5; Rich v. Kneeland, Cro. Jac. 330 (11 Jac. +I.). + +185/1 Cro. Jac. 262 (8 Jac. I.). Compare Maynard's argument in +Williams v. Hide, Palmer, 548; Symons v. Darknoll, ib. 523, and +other cases below; 1 Roll. Abr. 4, F, pl. 3. Mosley v, Fosset, +Moore, 543 (40 Eliz.); an obscurely reported case, seems to have +been assumpsit against an agistor, for a horse stolen while in +his charge, and asserts obiter that "without such special +assumpsit the action does not lie." This must have reference to +the form of the action, as the judges who decided Southcote's +Case took part in the decision. See, further, Evans v. Yeoman, +Clayton, 33. + +186/1 See Symons v. Darknoll, and the second count in Morse v. +Slue infra. (The latter case shows the averment of negligence to +have been mere form.) Cf. I Salk. 18, top. + +187/1 Supra, p. 179. + +187/2 Boson v. Sandford, Shower, 101; Coggs v. Bernard, infra. + +187/3 Symons v. Darknoll, infra. + +188/1 Reg. Brev. 92b, 95a, 98a, 100b, 104a; cf. Y.B. 19 Ed. II. +624; 30 Ed. III. 25, 26; 2 Hen. IV. 18, pl. 6; 22 Hen. VI. 21, +pl. 38; 32 & 33 Ed. I., Int., xxxiii.; Brunner, Schwurgerichte, +177; id. Franzosische, Inhaberpapier, 9, n. 1. + +188/2 12 Co. Rep. 64. + +188/3 See, besides the following cases, the declaration in +Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.), and note +especially the variations of statement in Morse v. Slue, set +forth below, in the text. + +189/1 Hobart, 17; Cro. Jac. 330. See also George v. Wiburn, 1 +Roll. Abr. 6, pl. 4 (A.D. 1638). + +190/1 The use which has been made of this case in later times +shows the extreme difficulty in distinguishing between principles +of substantive law and rules relating only to procedure, in the +older books. + +190/2 Y.B. 22 Hen. VI. 21, pl. 38; supra, p. 188, n. 1. + +191/1 Palmer, 523. + +191/2 Palmer, 548. + +191/3 Aleyn, 93. + +191/4 1 Sid. 36. + +192/1 1 Sid. 244. Cf. Dalston v. Janson, 1 Ld. Raym. 58. + +192/2 2 Keb. 866; 3 id. 72, 112, 135; 2 Lev. 69; I Vent. 190, +238; 1 Mod. 85; Sir T. Raym. 220. + +193/1 2 Keb. 866. See 3 Keb. 74; 1 Mod. 85; Sir T. Raym. 220. + +193/2 2 Keb. 72. + +193/3 Y.B. 33 Hen. VI. 1; supra, p. 177. + +193/4 3 Keble, 73. This is the main point mentioned by Sir T. +Raymond and Levinz. + +193/5 Cf. 1 Mod. 85. + +194/1 1 Ventris, 238, citing Southcote's Case in the margin. Cf. +3 Keble, 135. + +194/2 Aleyn, 93; supra, p. 191. + +194/3 See also 1 Hale, P.C. 512, 513. + +195/1 King v. Viscount Hertford, 2 Shower, 172, pl. 164; cf. +Woodlife's Case, supra. + +195/2 Boson v. Sandford, 1 Shower, 101 (2 W. & M.). See above, +pp. 183,185; below, p. 197. Modern illustrations of the doctrine +will be found in Fleming v. Manchester, Sheffield, & +Lincolnshire Railway Co., 4 Q.B.D. 81, and cases cited. In +Boorman v. Brown, 3 Q.B.511, 526, the reader the primitive +assumpsit, which was the inducement to a declaration in tort, +interpreted as meaning contract in the modern sense. It will be +seen directly that Lord Holt took a different view. Note the mode +of dealing with the Marshal's case, 33 Hen; VI. 1, in Aleyn, 27. + +196/1 See Lovett v. Hobbs, 2 Shower, 127 (32 Car. II.); +Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.); Boson v. +Sandford, 1 Shower, 101, citing Southcote's Case (2 W. & M.); +Upshare v. Aidee, 1 Comyns, 25 (8 W. III.); Middleton v. Fowler, +I Salk. 288 (10 W. III.). + +196/2 12 Mod. 472. + +196/3 2 Ld. Raym. 909. + +197/1 Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5 (39 Eliz.). Cf. +Keilway, 160. + +197/2 2 Ld. Raym. 919. See Lecture VII. How little Lord Holt +meant to adopt the modern view, that delivery, being a detriment +to the owner, was a consideration, may be further seen by +examining the cases put and agreed to by him from the Year Books. + +199/1 2 Kent, 598; 1 C.P. D. 429. + +199/2 Palmer, 523. See too Keilway, 77 b, and 160, pl. 2, where +the encroachment of case on detinue, and the corresponding +confusion in principle, may be pretty clearly seen taking place. +But see p. 175, supra. + +200/1 2 Kent, 597; Forward v. _Pittard, 1 T. R. 27. + +200/2 Cf. Y.B. 7 Hen. IV. 14; 2 Hen. VII. 11; Keilway, 77 b, 160, +pl. 2, and other cases already cited. + +200/3 Y.B. 41 Ed. III. 3, pl. 8. + +200/4 Y.B. 33 Hen. YI. 1, pl. 3. + +200/5 Reg. Brev. 107 a, 108 a, 110 a, b; entries cited 1 T. R. +29. + +200/6 See above, pp. 167, 175 et seq.; 12 Am. Law Rev. 692, 693; +Y.B. 42 Ed. III. 11, pl. 13; 42 Ass., pl. 17. + +201/1 1 Wilson, 282; cf. 2 Kent (12th ed.), 596, n. 1, b. + +201/2 Y.B. 33 Hen. VI. 1, pl. 3. + +202/1 Mouse's Case, 12 Co. Rep. 63. + +202/2 Bird v. Astcock, 2 Bulstr. 280; cf. Dyer, 33 a, pl. 10; +Keighley's Case, 10 Co. Rep. 139 b, 140. + +202/3 Y.B. 40 Ed. III. 5, 6, pl. 11; see also Willams v. Hide, +Palmer, 548; Shep. Touchst. 173. + +203/1 See Safe Delcosit Company of Pittsburgh v. Pollock, 85 +Penn. 391. + +203/2 Paston, J., in Y.B. 21 Hen. VI. 55; Keilway, 50 a, pl. 4; +Hardres, 163. + +203/3 Lane v. Cotton, 1 Ld. Raym. 646, 654; 1 Salk. 18; 12 Mod. +484. + +204/1 Forward v. Pittard, 1 T. R. 27, 83. + +205/1 Printing and Numerical Registering Co. v. Sampson, L.R. 19 +Eq. 462, 465. + +207/1 Possession, Section 6, Eng. tr., pp. 27, 28. + +207/2 R. d. Besitzes, 487. + +208/1 R. d. Besitzes, 490, 491. + +208/2 Bruns, R. d. Besitzes, 415; Windscheid, Pand. Section 148, +n. 6. Further Hegelian discourse may be found in Dr. J. Hutchison +Sterling's Lectures on the Philosophy of Law. + +208/3 Institutionen, Sections 224, 226; Windscheid, Pand. Section +148, n. 6. + +208/4 Windscheid, Pand. Section 148, n. 6. + +208/5 Besitzklagen, 276, 279. + +209/1 Bruns, R. d. Besitzes, 499. + +209/2 Bruns, R. d. Besitzes, Section 2, pp. 5 et seq.; Puchta, +Besitz, in Weiske, Rechtslex.; Windscheid, Pand. Section 154, +pp. 461 et seq. (4th ed.). + +209/3 D. 41.2.3, Section 20; 13.6.8 & 9. Cf. D. 41.1.9, Section 5. + +210/1 But see Ihering, Geist d. Rom. R., Section 62, French tr., +IV. p. 51. + +210/2 Heusler thinks this merely a result of the English +formalism and narrowness in their interpretation of the word suo +in the writ (disseisivit de teuemento suo). Gewere, 429-432. But +there was no such narrowness in dealing with catalla sua in +trespass. See below, p. 242. + +210/3 See, further, Bracton, fol. 413; Y.B. 6 Hen. VII. 9, pl. 4. + +211/1 Infra, p. 243. + +211/2 R. d. Besitzes, 494. + +212/1 Rogers v. Spence, 13 M. & W. 579, 581. + +212/2 Webb v. Fox, 7 T. R. 391, 397. + +212/3 Fennings v. Lord Grenville, 1 Taunt. 241; Littledale v. +Scaith, ib. 243, n. (a); cf. Hogarth v. Jackson, M. & M. 58; +Skinner v. Chapman, ib. 59, n. + +212/4 Swift v. Gifford, 2 Lowell, 110. + +212/5 1 Taunt. 248. + +213/1 Cf. Wake, Evolution of Morality, Part I. ch. 4, pp. 296 et +seq. + +215/1 Asher v. Whitlock, L.R. 1 Q.B.1. + +215/2 People v. Shearer, 30 Cal. 645. + +217/1 2 Kent's Comm. 349, citing Pierson v. Post, 3 Caines, (N. +Y.) 175; Buster v. Newkirk, 20 Johnson, (N. Y.) 75. + +217/2 Young v. Hichens, 6 Q.B.606. + +217/3 2 Kent's Comm. 349, n. (d). + +218/1 Inst. 2. 1, Section 13. + +218/2 Swift v. Gifford, 2 Lowell, 110. + +218/3 Savigny, R. d. Besitzes, Section 21. + +218/4 II. 9, Section 4; III. 29, Section 2. Animus domini will be +used here as shortly indicating the general nature of the intent +required even by those who deny the fitness of the expression, and +especially because Savigny's opinion is that which has been +adopted by English writers. + +219/1 Cf. Bruns, R. d. Besitzes, 413, and ib. 469, 474, 493, 494, +505; Windscheid, Pand. Section 149, n. 5 (p. 447, 4th ed.); +Puchta, Inst. Section 226. + +219/2 Supra, p. 207; 2 Puchta, Inst. Section 226 (5th ed.), pp. +545, 546. + +221/1 15 Jur. 1079; 21 L. J. Q.B.75; 7 Eng. L. & Eq. 424. + +222/1 11 Allen, 548. + +223/1 Kincaid v. Eaton, 98 Mass. 139. + +223/2 Barker v. Bates, 13 Pick. 255, 257, 261; Proctor v. Adams, +113 Mass. 376, 377; 1 Bl. Comm. 297, Sharsw. ed., n. 14. Cf. +Blades v. Hiqgs, 13 C.B. N.S. 844, 847, 848, 850, 851; 11 H. L. +C. 621; Smith v. Smith, Strange, 955. + +223/3 Reg. v. Rowe, Bell, C.C. 93. + +224/1 See, as to treasure hidden in another's land, D. 41. 2. 44, +pr.; D. 10. 4. 15. Note the different opinions in D. 41.2. 3, +Section 3. + +224/2 3 Inst. 107; 1 Hale, P.C. 504, 505; 2 Bishop, Crim. Law, +Sections 834, 860 (6th ed.). + +224/3 Reg. v. Middleton, L.R. 2 C.C. 38, 55. Cf. Halliday v. +Holgate, L.R. 3 Ex. 299, 302. + +224/4 Cf. Y.B. 8 Ed. II. 275; Fitzh. Abr. Detinue, ph 59; Y.B. 13 +Ed. IV. 9, pl. 5; Keilway, 160, pl. 2; Merry v. Green, 7 M. & W. +623, 630. It may not be necessary to go quite so far, however, +and these cases are not relied on as establishing the theory. For +wrong explanations, see 2 East, P.C. 696. + +225/1 Durfee v. Jones, 11 R. I. 588. + +225/2 Reg. v. Rowe, Bell, C.C. 93, stated above. + +225/3 8 Ves. 405; 7 M. & W. 623; Stephen, Crim. Law, Art. 281, +Ill. (4), p. 197. He says, "because [the owner of the safe] +cannot be presumed to intend to act as the owner of it when he +discovers it,"--a reason drawn from Savigny, but not fitted to +the English law, as has been shown. + +226/1 Y.B. 13 Ed. IV. 9, 10, pl. 5; 21 Hen. VII. 14, pl. 21. Cf. +3 Hen. VII. 12, pl. 9; Steph. Crim. Law, Art. 297, and App., note +xvii. + +226/2 Steph. Crtre. Law, Art. 297, and App., note xvii. p. 882. +It may be doubted whether the old law would have sanctioned the +rule in this form. F. N. B. 91 E; Y.B. 2 Ed. IV. 15, pl. 7. + +226/3 Y.B. 21 Hen. VII. 14, pl. 21; 13 Co. Rep. 69. + +227/1 They have been said to be a part of the family pro hac +vice. Southcote v. Stanley, 1 H. & N. 247, 250. Cf. Y.B. 2 Hen. +IV. 18, pl. 6. + +227/2 Moore, 248, pl. 392; S.C., Owen, 52; F. N. B. 91 E; 2 B1. +Comm. 396; 1 H. Bl. 81, 84; 1 Chitty, Pl. 170 (1st ed.); Dicey, +Parties, 358; 9 Mass. 104; 7 Cowen, 294; 3 S. & R. 20; 13 +Iredell, 18; 6 Barb. 362, and cases cited. Some of the American +cases have been denied, on the ground that the custodian was not +a servant. Cf. Holiday v. Hicks, Cro. Eliz. 638, 661, 746; Drope +v. Theyar, Popham, 178, 179. + +228/1 Bracton, fol. 6 a, Section 3, 12 a, 17 a, Cap. V. ad fin., +25 a, b, etc.; Pucbra, Inst. Section 228. + +228/2 See also 7 Am. Law Rev. 62 et seq.; 10 Am. Law Rev. 431; 2 +Kent, Comm. (12th ed.), 260, n. 1. + +228/3 1 Comm. 427. Cf. Preface to Paley on Agency. Factors are +always called servants in the old books, see, e. g., Woodlife's +Case, Owen, 57; Holiday v. Hicks, Cro. Eliz. 638; Southcote's +Case, 4 Co. Rep. 83 b, 84 a; Southern v. How, Cro. Jac. 468; St. +21 Jac. I., c. 16, Section 3; Morse v. Slue, 3 Keble, 72. As to +bailiffs, see Bract. 26 b, "Reestituat domino, vel servienti," +etc.; Y.B. 7 Hen. IV. 14, pl. 18. + +229/1 Paley, Agency, c. 4, Section 1, citing Godbolt, 360. See, +further, F. N. B. 120, G; Fitzh. Abr. Dette, pl. 3; Y.B. 8 Ed. +IV. 11, pl. 9. These rules seem to be somewhat modern even as to +servants. The liability of a master for debts contracted by his +servant is very narrowly limited in the earlier Year Books. + +230/1 I am inclined to think that this extension has been largely +due to the influence of the Roman law. See Lecture I. p. 20, n. +1, and observe the part which the precedents as to fire (e. g., +Y.B. 2 Hen. IV. 18, pl. 6) have played in shaping the modern +doctrine of master and servant. Tuberville v. Stampe, I Ld. Raym. +264 (where Lord Holt's examples are from the Roman law); Brucker +v. Fromont, 6 T. R. 659; M'Manus v. Crickett, 1 East, 106; Patten +v. Rea, 2 C.B. N.S. 606. In Southern v. How, Popham, 143, Doctor +and Student is referred to for the general principles of +liability. Doctor and Student states Roman law. See, further, +Boson v. Sandford, 1 Shower, 101, 102. + +230/2 Bac. Ahr. Master and Servant, K; Smith, Master and Servant +(3d ed.), 260, n. (t). + +230/3 Clapp v. Kemp, 122 Mass. 481; Murray v. Currie, L.R. 6 C.P. +24, 28; Hill v. Morey, 26 Vt. 178. + +230/4 See, e.g., Patten v. Rea, 2 C.B. N.S. 606; Bolingbroke v. +Swindon Local Board, L.R. 9 C.P. 575. + +230/5 Freeman v. Rosher, 13 Q.B.780, 785; Gauntlett v. King, 3 C. +B. N.S. 59; Haseler v. Lemoyne, 28 L. J. C.P. 103; Collett v. +Foster, 2 H. & N. 356; Barwick v. English Joint Stock Bank, L.R. +2 Ex. 259, 265, 266; Lucas v. Mason, L.R. 10 Ex. 251, 253, last +paragraph; Mackay v. Commercial Bank of New Brunswick, L.R. 5 +P.C. 394, 411, 412. So as to partners, 3 Kent's Comm. (12th ed.), +46, notes (d) & 1. + +231/1 Bush v. Steinman, 1 B. & P. 404, 409. + +231/2 6 M. & W. 358. Cf. Udell v. Atherton, 7 H. & N. 172, 184, +for a comment like that in the text. Other grounds for the +decision are immaterial here. + +231/3 Mackay v. Commercial Bank of New Brunswick, L.R. 5 P.C. +394; Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259; Western +Bank of Scotland v. Addie, L.R. 1 H. L. Sc. 145; 2 Kent (12th +ed.), 616, n. 1; Swift v. Jewsbury, L.R. 9 Q.B.301, overruling +S.C. sub nom. Swift v. Winterbotham, L.R. 8 Q.B.244; Weir v. +Bell, 3 Ex. D. 238, 244. The objections which Baron Bramwell +mentions (L.R. 9 Q.B.815) to holding one man liable for the +frauds of another, are objections to the peculiar consequences +attaching to the relation of master and servant in general, and +have been urged in that more general form by the same learned +judge. 12 Am. Law Rev. 197, 200; 2 H. & N. 856, 361. See 7 Am. +Law Rev. 61, 62. + +231/3 7 Am. Law Rev. 63 (Oct. 1872). + +232/1 D. 44. 2. 4, note 17, Elzevir ed. + +232/2 Hunter's Roman Law, 431. + +232/3 Ancient Hist. of Inst. 235. + +232/4 Cf. Gillett v. Ball, 9 Penn. St. 13; Craig v. Gilbreth, 47 +Me. 416; Nickolson v. Knowles, 5 Maddock, 47; Williams v. Port, +L.R. 12 Eq. 149; Adams v. Jones, 12 Ad. & El. 455; Bracton, fol. +28 b, 42 b, 43. And compare with the passage cited above from +Blackstone: "Possider, cujus riomine possidetur, procurator +alienae possessioni praestat ministerium." D. 41. 2. 18, pr. + +233/1 Ward v. Macaulay, 4 T. R. 489, 490. Cf. as to factors +supra, p. 228. + +233/2 Berndtson v. Strang, L.R. 3 Ch. 588, 590. + +233/3 Blackburn, Sale, 33; Marvin v. Wallis, 6 El. & Bl. 726. + +233/4 D. 41. 2. 18, pr. "Quod meo nomine possideo, possum alieno +nomine possidere: nec enim muto mihi causam possessionis, sed +desino possidere et alium possessorem ministerio meo facio. Nec +idem est possidere et alieno nomine possidere: nam possidet, +cujus nomine possidetur, procurator alienae possessioni praestat +ministerium." Thus showing that the vendor changed possession by +holding in the name of the purchaser, as his agent to possess. +Cf. Bracton, fol. 28 b. + +233/4 Windscheid, Pand. Section 155, n. 8 a; 2 Kent (12th ed.), +492, n. 1 (a). It should be kept in mind also that the Roman +law denied possession to bailees. + +234/1 See, e. g., Farina v. Home, 16 M. & W. 119, 123. + +235/1 McGahey v. Moore, 3 Ired. (N. C.) 35. + +235/2 Reader v. Moody, 3 Jones, (N. C.) 372. Cf. Basset v. +Maynard, Cro. Eliz. 819, 820. + +235/3 Browne v. Dawson, 12 A. & E. 624. Cf. D. 43. 16. 17; ib. 3, +Section 9; D. 41. 2. 18, Section 3; Clayton, 147, pl. 268. + +236/1 Cf. Bruns, R. d. Besitzes, 503. + +237/1 Clark v. Maloney, 3 Harrington (Del.), 68. Bruns (R. d. +Besitzes, 503, 507) comes to the same conclusion on practical +grounds of convenience, although he utterly repudiates it on +theory. I must refer to what I said above touching these +conflicts between theory and convenience. + +238/1 Bruns, R. d. Besitzes, Section 57, p. 486. A learned writer +of more ancient date asks why a doctor has not a possessory action +if you cease to employ him, and answers: "Sentio actionem non +tenere, sed sentio tantum, nec si vel morte mineris, possum +dicere quare. Tu lector, si sapis, rationes decidendi suggere." +Hommel, Rhaps., qu. 489, cited, Bruns, 407. + +239/1 Gardiner v. Thibodeau, 14 La. An. 732. + +239/2 Bruns, 483. + +240/1 2 Kent (12th ed.), 205, n. 1. Cf. Y.B. 21 Hen. VI. 8, 9, +pl. 19; American note to Scott v. Shepherd, in 1 Sm. L. C. (Am. +ed.). + +240/2 Britton (Nich. ed.), I. 277 (cf. Bract., fol. 164 b; Fleta, +fol. 214; Glanv., Lib. XIII. c. 37); Littleton, Sections 237-240, +588, 589; 3 Bl. Comm. 170; 3 Cruise, Dig., tit. xxviii., +Rents, ch. 2, Section 34. + +241/1 See Lecture XI. + +241/2 Cf. Stockport Water Works v. Potter, 3 H. & C. 300, 318. +The language in the seventh English edition of 1 Sm. L. C., 300, +is rather too broad. If the law should protect a possessor of +land in the enjoyment of water coming to it, it would do so +because the use of the water was regarded as a part of the +enjoyment of that land, and would by no means imply that it would +do the same in the case just put of a way over land of another. + +242/1 Jefferies v. Great Western Railway Co., 5 El. & B1. 802. +Cf. Armory v. Delamirie, 1 Strange, 505, 1 Sm. L. C. + +242/2 Co. Lit. 145 b. + +242/3 2 Wms. Saund. 47 b, note 1, to Wilbraham v. Snow. + +242/4 Bract., fol. 150 b, 151; supra, p. 168; Y.B. 22 Ed. I. +466-468. + +242/5 Y.B. 48 Ed. III. 20; 11 Hen. IV. 17; 11 Hen. IV. 23, 24; 21 +Hen. VII. 14. The meaning of sua is discussed in Y.B. 10 Ed. IV. +1, B, by Catesby. Compare Laband, Vermogensrechtlichen Klagen, +111; Heusler, Gewere, 492 et seq., correcting Bruns, R. d. +Besitzes, 300 et seq.; Sohm, Proc. d. L. Sal., Section 6. + +243/1 Y.B. 11 Hen. IV. 17, pl. 39. + +243/2 Y.B. 21 Hen. VII. 14 b, pl. 23. + +243/3 Godbolt, 173, pl. 239. Cf. 11 Hen. IV. 17, pl. 39. + +243/4 Bro. Abr. Trespass, pl. 433, cit. Y.B. 13 Hen. VII. 10. + +243/5 Kelyng, 89. See, further, Buller, N. P. 33. + +243/6 Lecture V.; Y.B. 20 Hen. VII. 1, pl. 11. + +243/7 Y.B. 21 lien. VII. 14 b, pl. 23. + +243/8 1 Roll. Abr. 4, 5 (I), pl. 1. Cf. Arnold v. Jefferson, 1 +Ld. Raym. 275. + +244/1 29 Ass., fol. 163, pl. 28. + +244/2 Southcote's Case, 4 Co. Rep. 83 b. + +244/3 Mores v. Conham, Owen, 123. Cf. Ratcliff v. Davis, I +Bulstr. 29. + +244/4 Doe v. Dyball, Mood. & M. 346 and note; 2 Wms. Saund. 111, +and later notes; I Ad. & El. 119; Asher v. Whitlock, L.R. 1 +Q.B.1. + +244/5 Graham v. Peat, 1 East, 244. + +245/1 As to this period see Heusler, Gewere. Cf. Laveleye, +Propriete, 166. + +248/1 2 Hist. du Droit Franc., pp. 146 et seq, 152. + +248/2 Anciens Poetes de la France, (Guessard,) p. 71. + +248/3 Page 283; cf. 284, cxviii, et seq., 44, lxix. + +249/1 Sohm, Proc. d. Lex. Sal., Sections 15, 23-25, tr. Thevenin, +pp. 80, 105, 122. + +249/2 Essays in A. S. Law, p. 292. + +249/3 Cap. VIII., Merkel, p. 48. + +249/4 Cap. LXXXIX. Section 3, Essays in A. S. Law, p. 291. + +249/5 Chap. IV. Section 16. + +250/1 Fitzh. Abr. Mainprise, pl. 12 (H. 33 Ed. III.); +Staundforde, P.C. 65. + +250/2 Abbr. Plac., p. 343, col 2, rot. 37, 17 Ed. II. + +250/3 Jacob, L. D., "Bail." Cf. I Bulstr. 45; .Hawkins, P.C., II. +ch. 15, Section 83; Abbr. Plac., p. 343, col. 2, rot. 37, 17 Ed. +II. + +250/4 Highmore, Bail, p. 199; Jacob, L. D., "Bail." Cf. 2 +Laferriere, Hist. du Droit Franc., p. 148. + +250/5 Highmore, p. 195. + +250/6 Ibid., p. 200. + +252/1 Vermoegensrechtlichen Klagen. + +253/1 II. c. 60, Section 25. Glanvill's "justa debendi causa" +(Lib. X. +c. 4) seems remote from consideration. + +254/1 Y.B. 3 Hen. VI. 36. + +254/2 Y.B. 37 Hen. VI. 13, pl. 3. + +254/3 Y.B. 37 Hen. VI. 8, pl. 33. + +254/4 Glanv., Lib. X. c. 12; Bract, fol. 400b, Section 10; 22 +Ass., pl. 70, fol. 101. + +255/1 Essays in A. S. Law, 187. + +256/1 I. 45; III. 10. + +256/2 Lib. X. e. 17. Suit, secta, was the term applied to the +persons whose oath the party tendered. + +257/1 Lib. X. c. 12 (Beames, p. 262); c. 8 & c. 5 (Beames, pp. +256, 251); cf. IV. c. 6, where witnesses are tendered de visu et +auditu. Cf. Bract., 315 b, Section 6 Fleta, II. c. 63, Section10, +p. 137. It was no doubt true, as Glanvill says, Lib. X. c. 17, +that the usual mode of proof was by a writing or by duel, and +that the King's Court did not generally give protection to private +agreements made anywhere except in the Court of the King (Lib. X. +c. 8). But it can hardly be that debts were never established by +witness in his time, in view of the continuous evidence from +Bracton onwards. + +257/2 But cf. Brunner, Schwurgerichte, 399. I do not go so far as +to say that they were still a living institution. However that +may be, tradition must at least have modelled itself on what had +been the function of the former official body. + +257/3 Bract., fol. 315 b, Section 6; Britt. (Nich.) I. p. 162; +Magna Charta, c. 38; Y.B. 21 Ed. I. 456; 7 Ed. II. 242; +18 Ed. II. 582; 3 Bl. Comm. 295, 344. Cf. 17 Ed. III. 48 b. + +257/4 Cf. Glanv., Lib. IV. c. 6. + +258/1 Lib. X. c. 18. It is possible that this means no more than +Glanvill's often repeated statement, that the King's Court did +not, generally speaking, take cognizance of private agreements. +The substantive law was, perhaps, still limited by traditions +from the infancy of contract. See pp. 248, 251, 259, 260. The +proposition in its broadest form may have been based on the +inability to try such agreements in any way but those which have +been specified. Cf. the requirement of aliam diracionationem and +aliis probationibus, in Lib. X. c. 12. But cf. Ibid. with Essays +in A. S. Law, pp. 189, 190. + +259/1 Sharington v. Strotton, Plowden, 298, at p. 302, M. 7 & 8 +Eliz. + +259/2 Pillans v. Van Mierop, 3 Burrow, 1663, 1669. + +260/1 1 Thorpe, Anc. Laws, 181, Oaths, 7, 8. + +260/2 Glanv., Lib. X. c. 5 (Beames, p. 251); Y.B. 7 Ed. II. 242; +Novae Narr. Dette-Vers plege, Rastell's Law Tracts, p. 253, D, 2 +Finl. Reeves, 376. + +261/1 Glanv., Lib. X. c. 22 (Beames, p. 263); Bract., fol. 398 b, +Section 1. The favorite proof by duel was also allowed, but this +disappeared. When the inquest became general, the execution of +the deed was tried, like any other fact, by that means. + +261/2 Bract., fol. 315 b, Section 6, 400 b; Coke, 2d Inst., 44, +45. + +262/1 Glanv., Lib. X. c. 12 (Beames, p. 263); Bract., fol. 100 b, +Section 9. + +262/2 Glanv., Lib. X. c. 17 (Beames, p. 272). + +262/3 Bract., fol. 400 b, Section 9. + +262/4 Cf. Y.B. 20 Ed. I. 304, and 34 Ed. II., 150, 152; ib. 330, +332; 35 Ed. I. 546. + +263/1 Bract., fol. 400 b, Section 8. + +263/2 Cf. Y.B. 20 Ed. I. 304. + +263/3 Cap. 28; 32 & 33 Ed. I. 516; 18 Ed. II. 582; Fleta, II. c, +63, Section 9; Coke, 2d Inst., 44; 3 Bl. Comm. 344. + +263/4 Y.B. 18 Ed. II. 582; 17 Ed. III. 48 b, pl. 14. + +264/1 Y.B. 29 Ed. III. 25, 26; cf. 48 Ed. III. 6, pl. 11; Fleta, +II. c. 60, Section 25; Glanvill, Lib. X. c. 12. + +264/2 Cf. Bro..Acc. sur le Case, pl. 5; S.C., 27 Hen. VIII. 24, +25, pl. 3. + +264/3 Y.B. 18 Ed. III. 13, pl. 7. + +264/4 Y.B. 44 Ed. III. 21, pl. 23. + +264/5 F. N. B. 122, I, in margin. Cf. F. N. B. 122 K; Y.B. 43 Ed. +III. 11, pl. 1; S.C., Bro. Pledges, pl. 3; 9 Hen. V. 14, pl. 23. + +265/1 Y.B. 17 Ed. III. 48 b, pl. 14. Cf. Fortescue (Amos), 67, +n.; 3 Bl. Comm. 295. + +265/2 For limit, see Constit. of Clarendon, c. 15; Glanv., Lib. +X. c. 8, 12; Y.B. 22 Ass., pl. 70, fol. 101; 45 Ed. III. 24, pl. +30; 19 R. II., Fitzh. Abr. Dett, pl. 166; 37 Hen. VI. 8, pl. 18; +14 Ed. IV. 6, pl. 3; 15 Ed. IV. 32, pl. 14; 19 Ed. IV. 10, pl. +18; 20 Ed. IV. 3, pl. 17. + +266/1 See for an illustration 2 Kent's Comm. (12th ed.), 451, n. +1 (b). + +266/2 Repromittatur, but cf. pro servitio tuo vel pro homagio, +Fleta, II. c. 60, Section 25. + +267/1 Y.B. 29 Ed. III. 25, 26. But cf. 48 Ed. III. 3, pl. 6. + +267/2 19 R. II., Fitzh. Abr. Dett, pl. 166. + +267/3 Y.B. 12 Hen. IV. 17, pl. 13, ad fin. + +267/4 Y.B. 9 Hen. V. 14, pl. 23. + +267/5 (Cf. 13 Ed. II. 403; 17 Ed. IIL 48, pl. 14; 29 Ed. III. 25, +26.) 41 Ed. III. 7, pl. 15; 46 Ed. III. 6, pl. 16; Fitzh. Abr. +Dett, pl. 166. + +267/6 Y.B. 3 Hen, VI. 36, pl. 33. + +268/1 Y.B. 37 Hen. VI. 8, pl. 18. + +268/2 E. g., Rolfe in Y.B. 3 Hen. VI. 36, pl. 23. + +269/1 Y.B. 37 Hen. VI. 8, pl. 18. Cf. Bro. Feoffements al Uses, +pl. 54; Plowden, 301. + +269/2 Y.B. 15 Ed. IV. 32, pl. 14; (S.C., 14 Ed. IV. 6, pl. 3;) 17 +Ed. 4, pl. 4. + +269/3 Cf. Y.B. 37 Hen. VI. 8, pl. 18; 17 Ed. IV. 4, 5; Plowden, +305, 306. + +269/4 Y.B. 3 Hen. VI. 36, pl. 33. + +269/5 Y.B. 37 Hen. VI. 13. + +269/6 As to requirement of certain sum, cf. Y.B. 12 Ed. II. 375; +Fleta, II. c. 60, Section 24. + +270/1 Y.B. 29 Ed. III. 25, 26; 40 Ed. III. 24, pl. 27; 43 Ed. +II1. 2, pl. 5. + +270/2 Y.B. 43 Ed. III. 2, pl. 5; 46 Ed. III. 25, pl. 10; 50 Ed. +III. 5, pl. 11. + +270/3 Cf. Glanv., Lib. X. c. 8; Fleta, II. c. 60, Section 25. + +270/4 Y.B. 35 Ed. I. 454; 12 Ed. II. 375. + +272/1 Ducange, "Sigilium"; Ingulph. 901. + +272/2 Big. Pl. Ang. Norm. 177. + +272/3 Big. Pl. Ant. Norm. 177; Bract., fol. 100 b, Section 9, +"scriptura." But cf. Y.B. 30 Ed. I. 158; Fleta, II. c. 60, +Section 25. + +272/4 Y.B. 33 Ed. I. 354, 356; 35 Ed. I. 455, top; 41 Ed. III. 7, +pl. 15; 44 Ed. III. 21, pl. 23. Cf. 39 Hen. VI. 34, pl. 46. + +272/5 Y.B. 7 Ed. I. 242. Cf. 35 Ed. I. 452. + +272/6 Cf. Bract., fol. 100 b, Section 9. + +272/7 Cf. Glanv., Lib. X. c. 12; Dugdale, Antiq. Warwic. 673, +cited Ducange, "Sigillum"; Bract., fol. 396 b, Section 3; I Britt. +(Nich.)163, Section 17; Abbrev. Plac. 8 Joh., Berk. rot. 4, pp. +55, 56; ib. 19 Ed. I., Norf. & Surf. rot. 7, p. 284; ib. Index +"Sigillum." + +272/8 Y.B. 30 Ed. I. 158; Fleta, II. c. 60, Section 25, p. 130. + +273/1 45 Ed. III. 24, pl. 30. + +273/2 Bract., fol. 100 b, Section 9. + +275/1 Cf. 5 Co. Rep. 13 b, 14 a, with 1 Roll. Rep. 126, 128; Y.B. +43 Ed. III 30, pl. 15. + +275/2 Y.B. 46 Ed. III. 19, pl. 19; S.C. Bro. Acc. sur le Case, +pl. 22. + +275/3 Y.B. 22 Ass., pl. 4i, fol. 94. + +276/1 Y.B. 43 Ed. III. 33, pl. 38. + +277/1 Y.B. 11 Hen. IV. 33, pl. 60. + +277/2 Y.B. 3 Hen. VI. 36, pl. 33. + +277/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60. Cf. 3 +Hen. VI. 36, 83. + +279/1 Cf. 19 Hen. VI. 49, pl. 5 ad fin., Newton, C. J. + +280/1 Cf. Y.B. 48 Ed. III. 6, pl. 11. + +280/2 Cases supra; Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33. Cf. +3 Hen. VI. 36, pl. 33; 20 Hen. VI. 34, pl. 4; 2 Hen. VII. 11, pl. +9. + +281/1 Y.B. 48 Ed. III. 6, pl. 11. Cf. Fitzh. Abr. Acc. sur le +case, pl. 37, 11 R. II; 14 Hen. VI. 18. But cf. 43 Ed. III. 33, +pl. 38. + +282/1 Cf. Candish's reasons for allowing wager of law with Y.B. +32 & 33 Ed. I., Preface, p. xxxvi., citing the old rules of +pleading printed at the end of the tract entitled, Modus tenendi +unum Hundredum sire Curiam de Recordo, in Rastell's Law Tracts, +p. 410, E, F, G. + +282/2 Y.B. 3 Hen. VI. 36, pl. 33. + +282/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60; 3 Hen. +VI. 36, pl. 33. + +282/4 3 Hen. VI. 36, pl. 33. + +283/1 Y.B. 14 Hen. VI. 18, pl. 58. + +283/2 Ibid. Cf. 48 Ed. III 6, pl. 11. + +283/3 Y.B. 19 Hen. VI. 49, pl. 5. See, further, Y.B. 20 Hen. VI. +25, pl. 11. + +284/1 Cf. Y.B. 3 Hen. VI. 36, pl. 33. + +284/2 Y.B. 2 Hen. VII. 11, pl. 9. Cf. 20 Hen. VI. 34, pl. 4. + +284/3 Cf. Y.B. 14 Hen. VI. 18, pl. 58; 21 Hen. VII. 41, pl. 66, +Fineux, C. J. + +284/4 Keilway, 160, pl. 2 (2 Hen. VIII.); Powtuary v. Walton, 1 +Roll. Abr. 10, pl. 5 (39 Eliz.); Coggs v. Bernard, 2 Ld. Raym. +909 (2 Anne, A.D. 1703). Supra, p. 195. + +285/1 Sands v. Trevilian, Cro. Car. 193, 194 (Mich. 4 Car. I., +A.D. 1629). + +285/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24, +25, pl. 3; Sidenham v. Worlington, 2 Leon. 224, A.D. 1585. + +285/3 Y.B. 21 Hen. VII. 30, pl. 5; ib. 41, pl. 66. + +285/4 Y.B. 3 Hen. VI. 36, pl. 33. + +286/1 Sharington v. Strotton, Plowden, 298 (Mich. 7 & 8 Eliz.); +ib. 309, note on "the civil law." + +286/2 Hunt v. Bate, 3 Dyer, 272 a (10 Eliz., A.D. 1568). + +286/3 See Lecture VIII. Mr. Langdell, Contracts, Sections 92, 94, +suggests the ingenious explanation for this doctrine, that it was +then held that no promise could be implied in fact from the +request. There may be evidence which I do not know, but the case +cited (Bosden v. Thinne, Yelv. 40) for this statement was not +decided until A.D. 1603, while the implication of Hunt v. Bate, +supra, which was the authority followed by the cases to be +explained, is all the other way. + +286/4 Sidenham v. Worlington, 2 Leon. 224, A.D. 1585. + +287/1 Read v. Baxter, 3 Dyer, 272 b, n. (26 & 27 Eliz.). Cf. +Richards and Bartlet's Case, 1 Leon. 19 (26 Eliz.). + +287/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24, +25, pl. 3; 3 Dyer, 272, n. + +287/3 Marsh v. Rainsford, 3 Dyer, 272 b, n.; S.C., 2 Leon. 111, +and Cro. Eliz. 59, sub. nom. Marsh v. Kavenford. + +287/4 Smith and Smith's Case, 3 Leon. 88, A.D. 1583; Riches and +Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, Yelv. 128, A.D. +1608. + +288/1 Supra, p. 195. Lord Coke's caution not to rely on the +abridgments is very necessary to the proper study of the history +of consideration. The abridgments apply the doctrine to cases +which make no mention of it, and which were decided before it was +ever heard of. + +290/1 Y.B. 46 Ed. III. 19, pl. 19; 19 Hen. VI. 49, pl. 5; +Keilway, 160, pl. 2; Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5; +Coggs v. Bernaard, 2 Ld. Raym. 909. + +290/2 Riches and Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, +Yelv. 128. + +291/1 Bainbridge v. Firmstone, 8 Ad. & El. 743, A.D. 1838. + +291/2 Wilkinson v. Oliveira, 1 Bing. N. C. 490, A.D. 1835; Haigh +v. Brooks, 10 Ad. & El. 309; lb. 323; Hart v. Miles, 4 C.B. N.S. +371, A.D. 1858. + +291/3 Wheatley v. Low, Cro. Jac. 668, A.D. 1623. Cf. Byne and +Playne's Case, 1 Leon. 220, 221 (32 & 33 Eliz.). + +291/4 Wilkinson v. Oliveira, 1 Bing. N. C. 490; Haigh v. Brooks, +10 Ad. & El. 309; Hart v. Miles, 4 C.B. N.S. 371; 6 Am. Law Rev. +47, Oct. 1871. + +292/1 Supra, pp. 196, 197. See also Lecture VII. + +292/2 Byles, J., in Shadwell v. Shadwell, 30 L. J. C.P. 145, 149. + +292/3 Shadwell v. Shadwell, ubi supra; Burr v. Wilcox, 13 Allen, +269, 272, 273. + +292/4 Thomas v. Thomas, 2 Q.B.851. + +293/1 Price v. Jenkins, 5 Ch. D. 619. Cf. Grabbe v. Moxey, 1 W. +R. 226; Thomas v. Thomas, 2 Q.B.851; Monahan, Method of Law, 141 +et seq. + +294/1 Ellis v. Clark, 110 Mass. 389. + +294/2 Fitch v. Snedaker, 38 N. Y. 248, criticising Williaws v. +Carwardine, 4 Barn. & Ad. 621, where, however, it does not appear +that the plaintiff did not know of the offer of a reward, but +merely that the jury found that she was in fact actuated by other +motives, a finding wholly beside the mark. + +296/1 Y.B. 29 Ed. III. 25, 26. + +296/2 19 R. II., Fitzh. Abr. Dett, pl. 166. + +296/3 Hunt v. Bate, Dyer, 272, A.D. 1568. + +297/1 See Barker v. Halifax, Cro. Eliz. 741; S.C. 3 Dyer, 272 a, +n. 32. + +297/2 Sidenham v. Worlington, 2 Leonard, 224; Bosden v. Thinne, +Yelv. 40; Lampleigh v. Brathwait, Hobart, 105; Langdell, Cas. on +Contr. (2d ed.), ch. 2, Section 11, Summary, Sections 90 et seq. +See above, Lecture VII. p. 286. + +297/3 Pollock, Contr. (lst ed.), p. 6. + +298/1 Canham v. Barry, 15 C.B. 597, 619; Jones v. How, 9 C.B. 1, +9; Com. Dig. Condition, D. 2; I Roll. Abr. 420 (D), pl. 1; Y.B. +22 Ed. IV. 26, pl. 6. + +301/1 Gee v. Lancashire & Yorkshire Railway Co., 6 H. & N. 211, +218, Bramwell, B. Cf. Hydraulic Engineering Co. v. McHaffie, 4 +Q.B.D. 670, 674, 676. + +301/2 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P. +499, 509, Willes, J.; Horne v. Midland Railway Co., L.R. 7 C.P. +583, 591; S.C., L.R. 8 C.P. 131. + +302/1 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P. +499, 509. + +304/1 Cheale v. Kenward, 3 DeG. & J. 27. + +304/2 Langdell, Contr., Sections 89, 28. + +305/1 Langdell, Contr., Section 57. + +305/2 Ibid., Sections 14, 15. + +306/1 But see Langdell, Contr., Sections 14, 15. + +309/1 Raffles v. Wichelhaus, 2 H. & C. 906. Cf. Kyle v. Kavanagh, +103 Mass. 356, 357. + +309/2 Cf. Cocker v. Crompton, 1 B. & C. 489. + +310/1 Smith v. Hughes, L.R. 6 Q.B.597. + +310/2 See Gardner v. Lane, 12 Allen, 39; S.C. 9 Allen, 492, 98 +Mass. 517. + +311/1 Goddard v. Monitor Ins. Co., 108 Mass. 56. + +313/1 See Cundy v. Lindsay, 3 App. Cas. 459, 469. Cf. Reg. v. +Middleton, L.R. 2 C.C. 38, 55 et seq., 62 et seq.; Reg. v. +Davies, Dearsly, C.C. 640; Rex v. Mucklow, 1 Moody, O.C. 160; +Reg. v. Jacobs, 12 Cox, 151. + +313/2 "Praesentia corporis tollit errorem nominis." Cf. Byles, +J., in Way v. Hearne, 32 L. J. N.S.C.P. 34, 40. But cf. the +conflicting opinions in Reg. v. Middleton, L.R. 2 C.C. 38, 45, +57. It would seem that a proper name or other identification of +an object or person as specific may have the same effect as an +actual identification by the senses, because it refers to such an +identification, although in a less direct way. + +316/1 Brown v. Foster, 113 Mass. 136. + +316/2 Leake, Dig. Contr. 13, 14, 637; Hunt v. Livermore, 5 Pick. +395, 397; Langd. Contr. (2d ed.), Section 36. + +316/3 Leake, Dig. Contr. 638; Braunstein v. Accidental Death Ins. +Co., 1 B. & S. 782. + +316/4 But cf. Langd. Contr. (2d ed.), Section 29. + +318/1 Langd. Contr. (2d ed.), Section 29. + +318/2 Bullen & Leake, Prec. of Plead. (3d ed.), 147, "Conditions +Precedent." + +319/1 Cf. Cort v. Ambergate, Nottingham & Boston & Eastern +Junction Railway Co., 17 Q.B.127. + +320/1 Goodman v. Pocock, 15 Q.B.576 (1850). + +325/1 Fisher v. Mellen, 103 Mass. 503. + +325/2 Supra, p. 136. + +327/1 Langd. Contr. (2d ed.), Section 33. + +328/1 See the explanation of Dimech v. Corlett, 12 Moo. P.C. 199, +in Behn v. Burness, 3 B. & S. 751, 760. + +329/1 Behn v. Burness, 3 B. & S. 751. + +329/2 Langd. Contr. (2d ed.), Section 28, p. 1000. + +329/3 See Lecture VIII. + +330/1 Kennedy v. Panama, &c. Mail Co., L.R. 2 Q.B.580, 588; Lyon +v. Bertram, 20 How. 149, 153. Cf. Windscheid, Pand., Section 76, +nn. 6, 9. + +330/2 Windscheid, Pand., Section 76(4). See, generally, Ibid., +nn. 6, +7; Section 78, pp. 206, 207; Section 82, pp. 216 et seq. + +331/1 Cr. Ihering, Geist d. Roem. Rechts, Section 48, III. p. 116 +(Fr. transl.). + +331/2 See, however, the language of Crompton, J. in S.C., I B. & +S. 877. Cf. Kent, Comm. (12th ed.), 479, n. 1, A (c). + +331/3 Behn v. Burness, 3 B. & S. 751, 755, 756. + +334/1 Cf. Anglo-Egyptian Navigation Co. v. Rennie, L.R. 10 C.P. +271. + +334/2 Ellen v. Topp, 6 Exch. 424. + +335/1 Contracts (2d Ed.), Section 106, and passim. + +336/1 Chanter v. Hopkins, 4 M. & W. 399, 404. Possibly Behn v. +Burness, stated above, might have been dealt with in this way. +The ship tendered was not a ship which had been in the port of +Amsterdam at the date of the contract. It was therefore not such +a ship as the contract called for. + +336/2 Heyworth v. Hutchinson, L.R. 2 Q.B.447, criticised in Benj. +Sales (2d ed.), pp. 742 et seq. + +336/3 See Thomas v. Cadwallader, Willes, 496; Langd. Contr. (2d +ed.), Sections 116, 140. This is put as a case of equivalence by +Mr. Langdell (Contr., Section 116); but the above explanation is +believed to be the true one. It will be noticed that this is hardly +a true case of condition, but merely a limitation of the scope of +the tenant's promise. So a covenant to serve as apprentice in a +trade, which the other party covenants to teach, can only be +performed if the other will teach, and must therefore be limited +to that event. Cf. Ellen v. Topp, 6 Exch. 424. + +337/1 Langdell, Contracts (2d ed.), Section 127. Cf. Roberts v. +Brett, 11 H. L. C. 337. + +339/1 Graves v. Legg, 9 Exch. 709. Cf. Lang. Contr. (2d ed.), Section +33, p. 1004. Mr. Langdell says that a bought note, though part of +a bilateral contract, is to be treated as unilateral, and that it +may be presumed that the language of the contract relied on was +that of a bought note, and thus a condition in favor of the +defendant, who made it. I do not quite understand how this can be +assumed when the declaration states a bilateral contract, and the +question arose on demurrer to a plea, which also states that the +plaintiff "was by the agreement bound to declare" the names. How +remote the explanation is from the actual ground of decision will +be seen. + +341/1 Recht des Besitzes, Section 11, p. 184, n. 1 (7th ed.), +Eng. tr. 124, n. t. + +342/1 Inst. II. Section 157. + +342/2 "In suis heredibus evidentius apparet continuationem +dominii eo rem perdueere, ut nulla videatur hereditas fuisse, +quasi olim hi domini essent, qui etiam vivo patre quodammodo +domini existimantur, unde etiam filius familias appellatur sicut +pater familias, sola nota hae adiecta, per quam distinguitur +genitor ab eo qui genitus sit. itaque post mortem patris non +hereditatem percipere videntur, sed magis liberam bonorum +administrationem consequuntur hac ex causa licet non sint heredes +instituti, domini sunt: nec obstat, quod licet eos exheredare, +quod et occidere licebat." D. 28.2. 11. Cf. Plato, Laws, [Greek +characters] + +343/1 Laveleye, Propriety, 24, 202, 205, 211, n. 1, 232; Norton, +L.C. Hindu Law of Inheritance, p. 193. + +343/2 D. 50. 16. 208. + +343/3 D. 41. 1. 34. Cf. D. 41. 3. 40; Bract., fol. 8 a, 44 a. + +343/4 D. 43. 24. 13, Section 5. + +344/1 Germania, c. 20. + +345/1 Littleton, Section 337; Co. Lit. 209, a, b; Y.B. 8 Ed. IV. +5, 6, +pl. 1; Keilway, 44 a (17 Hen. VII.); Lord North v. Butts, Dyer, +139 b, 140 a, top; Overton v. Sydall, Popham, 120, 121; Boyer v. +Rivet, 3 Bulstr. 317, 321; Bain v. Cooper, 1 Dowl. Pr. Cas. N. s. +11, 14. + +345/2 Y.B. 48 Ed. III. 2, pl. 4. + +346/1 Vermoegensrechtlichen Klagen, 88, 89. + +346/2 Proc. de la Lex Salica, tr. Thevenin, p. 72 and n. 1. + +347/1 Ethelred, II. 9; Cnut, II. 73; Essays in Ang. Sax. Law, pp. +221 et seq. + +347/2 1 Spence, Eq. 189, note, citing Hickes, Dissert. Epist., p. +57. + +347/3 Glanv., Lib. VII. c. 2 (Beames, p. 150). + +347/4 Ibid., c. 8 (Beames, p. 168). + +347/5 Reg. Maj., Lib. II. c. 39. + +348/1 Fol. 61 a. + +348/2 Sachsensp., II. 60, Section 2, cited in Essays in Ang. Sax. +Law, p. 221; Grand Cust. de Norm., c. 88. + +348/3 Britt., fol. 64 b (Nich. ed. 163); Fleta, Lib. II. c. 62, +Section 10. Cf. Bract., fol. 37 b, Section 10. + +348/4 Bracton, fol. 61 a, b. "Item quaero an testator legare +possit actiones suas? Et verum est quod non, de debitis quae in +vita testatoris convicta non fuerunt nec recognita, sed hujusmodi +actiones competunt haeredibus. Cum antera convicta sint et +recognita, tune sunt quasi in bonis testatoris, et competunt +executoribus in foro ecclesiastico. Si autem competant +haeredibus, ut praedictum est, in foro seculari debent terminari, +quia antequam communicantur et in foro debito, non pertinet ad +executores, ut in foro ecclesiastico convincantur." + +349/1 Bracton, fol. 62a. + +349/2 Y.B. 20 & 21 Ed. I. 232; cf. ib. 312. + +349/3 Oates v. Frith, Hob. 130. Cf. Y.B. 5 Hen. VII. 18, pl. 12; +Popham, J., in Overton v. Sydall, Poph. 120, 121 (E. 39 El.); +Boyer v. Rivet, 3 Bulstr. 317, 319-322; Brooker's Case, Godb. +376, 380 (P. 3 Car. I.). + +349/4 Bain v. Cooper, 1 Dowl. Pract. Cas. N. s. 11, 14. Cf. Y.B. +14 Hen. VIII. pl. 5, at fol. 10. + +350/1 Bract., fol. 66 b, 76 b, and passim; Y.B. 20 Ed. I. 226, +200; Littleton, Section 241. The same thing was said where there +were several executors: "They are only in the place of one person." +Y.B. 8 Ed. IV. 5,pl. 1. + +350/2 Comm. 385. + +350/3 Cf. Glanv., Lib. VII. c. 3; F. N. B. 21 L; Dyer, 4 b, 5 a. + +351/1 Cf. Bract., fol. 80 b. + +351/2 Charta Divis. Reg. Franc., Art. IX. & VIII. Cf. 3 +Laferriere, Hist. du Droit Francais, 408, 409. + +351/3 Glanv., Lib. IX. c. 1 (Beames, pp. 218, 220); Bract., fol. +79 b. + +352/1 Brooker's Case, Godbolt, 376, 377, pl. 465. + +352/2 Dyer, 1 b. Cf. Bain v. Cooper, 1 Dowl. Pr. C. N. s. 11, 12. + +354/1 In the American Law Review for October, 1872, VII. 49, 50, +I mentioned one or two indications of this fact. But I have since +had the satisfaction of finding it worked out with such detail +and learning in Ihering's Geist des Roemischen Rechts, Sections 10, 48, +that I cannot do better than refer to that work, only adding that +for my purposes it is not necessary to go so far as Ihering, and +that he does not seem to have been led to the conclusions which +it is my object to establish. See, further, Clark, Early Roman +Law, 109, 110; Laferriere, Hist. du Droit Frang., I. 114 et seq.; +D. 1.5. 4, Section 3; Gaii Inst. IV. Section 16; ib. II. Section +69. + +356/1 Erbvertraege, I. 15 et seq. + +356/2 Hist. du Droit Franc., IV. 500. + +357/3 "Quantum dare voluerit aut totam furtunam eui voluerit dare +. . . nec minus nec majus nisi quantum ei creditum est." Lex Sal. +(Merkel), XLVI. + +357/4 Lex Sal. (Merkel), Cap. XLVI., De adfathamire; Sohm, Frank. +Reichs- u. Gerichtsverfassung, 69. + +357/6 Beseler, Erbvertraege, I. 101, 102, 105. + +358/1 "Omnem facultatem suam. . . seu cuicunque libet de proximis +vel extraneis, adoptare in hereditatem vel in adfatimi vel per +scripturarum seriem seu per traditionem." L. Rib. Cap. L. (al. +XLVIII.); cf. L. Thuring. XIII. So Capp. Rib. Section 7: "Qui +filios non habuerit et aliurn quemlibet heredem facere sibi +voluerit coram rege . . . traditionem faclat." + +357/2 Ed. Roth., cap. 174, 157; cf. lb. 369, 388; Liutpr. III. 16 +(al. 2), VI. 155 (al. 102). Cf. Beseler, Erbvertraege, I. 108 et +seq., esp. 116-118. Compare the charter of A.D. 713, "Offero . . . +S. P. ecclesia quam mihi heredem constitui." (Mem. di Lucca V. +b. No. 4.) Troya III. No. 394, cited Heusler, Gewere, 45, 46. Cf. +ib. 484. This, no doubt, was due to Roman influence, but it +recalls what Sir Henry Maine quotes from Elphinstone's History of +India (I. 126), as to sale by a member of one of the village +communities: "The purchaser steps exactly into his place, and +takes up all his obligations." Ancient Law, ch. 8, pp. 263, 264. + +357/3 (Merkel) Cap. LVIII., De chrenecruda. Sohm, Frank. R. u. G. +Verf., 117. + +358/1 A.D. 679: "Sicuti tibi donata est ira tene et posteri tui." +Kemble, Cod. Dip., I. 21, No. xvi. Uhtred, A.D. 767: "Quam is +semper possideat et post se cui voluerit heredum relinquat." Ib. +I. 144, cxvxi. ("Cuilibet heredi voluerit relinquat" is very +common in the later charters; ib. V. 155, MLXXXIL; lb. VI. 1, +MCCXVIIL; it). 31, MCCXXX.; lb. 38, MCCXXXIV.; and passim. This +may be broader than cui voluerit herealum.) Offa, A.D. 779: "Ut +se viverite habe . . . deat. et post se suoe propinquitatis +homini cui ipse vo . . . possidendum libera utens potestate +relinquat." Ib. I. 164, 165, CXXXVII. Aethilbald, A.D. 736: "Ita +ut quamdiu vixerit potestatem habeat tenendi ac possidendi +cuicumque voluerit vel eo vivo vel certe post obitum suum +relinquendi." Ib. I. 96, LXXX.; cf. ib. V. 53, MXIV. Cuthred of +Kent, A.D. 805: "Cuicumque hominum voluerit in aeternam +libertatem derelinquat." Ib. I. 232, CXC. "Ut habeat libertatem +commutandi vel donandi in vita sua et post ejus obiturn teneat +facultatem relinquendi cuicumque volueris." Ib. I. 233, 234, +CXCI.; cf. ib. V. 70, MXXXI. Wiglaf of Mercia, Aug. 28, A.D. 831: +"Seu vendendum ant commutandum i cuicumque ei herede placuerit +dereliaquendum." Ib. I. 294, CCXXVII. + +359/1 "W. et heredibus suis, videlicet quos heredes +constituerit." Memorials of Hexham, Surtees Soc. Pub., 1864, II. +88. + +359/2 Cf. Y.B. 27 Ass., fol. 135, pl. 25. Under the Welsh laws +the champion in a cause decided by combat acquired the rights of +the next of kin, the next of kin being the proper champion. Lea, +Superstition and Force (3d Ed.), 165. Cf. ib. 161, n. 1; ib. 17. + +361/1 D. 38. 8. 1, pr. + +361/2 "Cum is, qui ex edicto bonorum possessionem petiit, ficto +se herede agit." Gaii Inst. IV. Section 34. Cf. Ulp. Fragm. +XXVIII. Section +12; D. 37. 1. 2. So the fidei commissarius, who was a praetorian +successor (D. 41. 4. 2, Section 19; 10. 2. 24), "in similitudinem +heredis consistit." Nov. 1. 1, Section 1. Cf. Just. Inst. 2. 24, +pr., and then Gaius, II. Sections 251, 252. + +361/3 Gaii Inst. II. Sections 102 et seq. Cf. ib. Sections 252, +35. + +361/4 Gaii Inst. IV Section 35: "Similiter et bonorum emptor +ficto se herede agit." Cf. ib. Sections 144, 145. Keller, Roemische +Civilprocess, Section 85, III. But cf. Scheurl, Lehrb. der Inst., +Section 218, p. 407 (6th ed.). + +361/5 Paulus in D. 50. 17. 128. + +362/1 "In re legata in accessione temporis quo testator possedit, +legatarius quodammodo quasi heres est." D. 41. 3. 14, Section 1. + +362/2 D. 41.1.62; 43. 3. 1, Section 6; Gaii Inst. II. Section 97; +Just. Inst. 2. 10, Section 11. + +363/1 "[Accessiones possessionum] plane tribuuntur his qui in +locum aliorum succedunt sive ex contractu sive voluntate: +heredibus enum et his, qui successorum loco habentur, datur +accessio testatoris. Itaque si mihi vendideris servum utar +accesssione tua." D. 44.3.14, Sections 1, 2. + +363/2 "Ab eo . . . in cujus locum hereditate vel emptione aliove +quo iure successi." D. 43. 19. 3, Section 2. + +363/3 D. 50. 4. 1, Section 4. Cf. Cic. de Off. 3. 19. 76; Gaii +Inst. IV. Section 34. + +363/4 C. 2. 3. 21; C. 6. 16. 2; cf. D. 38. 8. 1, pr. + +364/1 "In locum successisse accipimus sive per universitatem sive +in rem sit successum." D. 43. 3. 1, Section 13. Cf. D. 21.3.3, +Section 1; D. 12.2.7&8;D. 39. 2. 24, Section 1. + +364/2 D. 41.2. 13, Sections 1, 11. Other cases put by Ulpian may +stand on a different fiction. After the termination of a precarium, +for instance, fingitur fundus nunquam fuisse possessus ab ipso +detentore. Gothofred, note 14 (Elz. ed.). But cf. Puchta, in +Weiske, R. L., art. Besitz, p. 50, and D. 41.2.13, Section7. + +364/3 Inst. 2. 6, Sections 12, 13. Cf. D. 44. 3. 9. See, for a +fuller statement, 11 Am. Law Rev. 644, 645. + +365/1 Recht des Besitzes, Section11 (7th ed.), p. 184, n. 1, Eng. +tr. 124, n. t. + +365/2 Paulus, D. 8. 6. 18, Section 1. This seems to be written of +a rural servitude (aqua) which was lost by mere disuse, without +adverse user by the servient owner. + +365/3 Hermogenianus, D. 21. 3. 3; Exe. rei jud., D. 44. 2. 9, +Section 2; ib. 28; ib. 11, Sections 3, 9; D. 10. 2. 25, Section 8; +D. 46. 8. 16, Section I; Keller, Roem. Civilproc., Section 73. +Cf. Bracton, fol. 24 b, Section 1 ad fin. + +365/4 "Recte a me via uti prohibetur et interdictum ei inutile +est, quia a me videtur vi vel clam vel precario possidere, qui ab +auctore meo vitiose possidet. nam et Pedius scribit, si vi aut +clam aut precario ab co sit usus, in cuius locum hereditate vel +emptione aliove quo lure suceessi, idem esse dicendum: cum enim +successerit quis in locum eorum, aequum non est nos noceri hoc, +quod adversus eum non nocuit, in cuius locum successimus." D. 43. +19. 3, Section 2. The variation actore, argued for by Savigny, is +condemned by Mommsen, in his edition of the Digest, --it seems +rightly. + +365/5 D. 12. 2. 7 & 8. + +366/1 Ulpian, D. 39. 2. 24, Section1. Cf. D. 8. 5.7; D. 39. 2. +17, Section 3, +n. 79 (Elzevir ed.); Paulus, D. 2. 14. 17, Section 5. + +366/2 "Cum quis in alii locum successerit non est aequum ei +nocere hoc, quod adversus eum non nocuit, in cujus locum +successit. Plerumque emptoris eadem causa esse debet circa +petendum ac defendendum, quae fuit auctoris." Ulp. D. 50. 17. +156, Sections 2, 3. "Qui in ius dominiumve alterius succedit, +iure ejus uti debet." Paulus, D. 50. 17. 177. "Non debeo melioris +condieionis esse, quam auctor meus, a quo ius in me transit." +Paulus, D. 50. 17. 175, Section 1. "Quod ipsis qui contraxerunt +obstat, et successoribus eoturn obstabit." Ulp. D. 50. 17. 143. +"Nemo plus iuris ad alium transferre potest, quam ipse haberet." +Ulp. D. 50. 17. 54; Bract., fol. 31 b. Cf. Decret. Greg. Lib. II. +Tit. XIII. c. 18, De rest. spoliat.: "Cum spoliatori quasi succedat +in vitium." Bruns, R. d. Besitzes, p. 179. Windscheid, Pand., +Section 162 a, n. 10. + +366/3 "Ne vitiosae quidam possessioni ulla potest accedere: sed +nec vitiosa ei, quse vitiosa non est." D. 41. 2. 13, Section 13. + +367/1 Hill v. Ellard, 3 Salk. 279. Cf. Withers v. Iseham, Dyer, +70 a, 70 b, 71 a; Gateward's Case, 6 Co. Rep. 59b, 60b; Y.B. 20 & +21 Ed. I 426; 205; 12 Hen. IV. 7. + +368/1 Doe v. Barnard, 13 Q.B.945, 952, 953, per Cur., Patteson, +J. Cf. Asher v. Whitlock, L.R. 1 Q.B.1, 3, 6, 7. + +368/2 See, further, Sawyer v. Kendall, 10 Cush. 241; 2 Bl. Comm. +263 et seq.; 3 Ch. Pl. 1119 (6th Am. ed.); 3 Kent, 444, 445; +Angell, Limitations, ch. 31, Section 413. Of course if a right +had already been acquired before the disseisin different +considerations would apply. If the right claimed is one of those +which are regarded as incident to land, as explained in the +following Lecture, the disseisor will have it. Jenk. Cent. 12, +First Cent. Case 21. + +370/1 Ared v. Watkin, Cro. Eliz. 637; S.C., ib. 651. Cf. Y.B. 5 +Hen. VII. 18, pl. 12; Dyer, 4 b, n. (4). + +370/2 Roe v. Hayley, 12 East, 464, 470 (1810). + +371/1 Boyer v. Rivet, 3 Bulstr. 317, 321. + +372/1 Essays in A. S. Law, 219. + +372/2 "Per medium," Bracton, fol. 37b, Section10 ad fin. + +374/1 Bract., fol. 17 b. Cf. Fleta, III. c. 14, Section 6. + +374/2 See, further, Middlemore v. Goodale, Cro. Car. 503, stated +infra, p. 379. + +374/3 See also Bract., fol. 380 b, 381. "Et quod de haeredibus +dicitur, idem dici poterit de assignatis .... Et quod assignatis +fieri debet warrantia per modum donationis: probatur in itinere +W. de Ralegh in Com. Warr. circa finem rotuli, et hoc maxime, si +primus dominus capitalis, et primus feoffator, ceperit homagium +et servitium assignati." Cf. Fleta, VI. Section 6; Moore, 93, pl. +230; Sheph. Touchst. 199, 200. As to the reason which led to the +mention of assigns, cf. Bract., fol. 20 b, Section 1; 1 Britt. +(Nich.), 223, 312. + +375/1 I do not stop to inquire whether this was due to the +statute of Quia Emptores, by which the assign was made to hold +directly of the first grantor, or whether some other explanation +must be found. Cf. Bract., fol. 37 b; c. 14, Sections 6, 11; VI. +c. 28, Section 4; 1 Britton (Nich.), 256, [100 b]. + +375/2 Fleta, III. c. 14, Section 6, fol. 197; 1 Britton (Nich.), +223, 233, 244, 255, 312; Co. Lit. 384 b; Y.B. 20 Ed. I. 232; Abbr. +Placit., fol. 308, 2d col., Dunelm, rot. 43; Y.B. 14 Hen. IV. 5, 6. + +377/1 Fol. 67 a; cf. 54 a. + +377/2 Fol. 381; supra, p. 874, n. 3. + +378/1 Cf. Pincombe v. Rudge, Hobart, 3; Bro. Warrantia Carte, pl. +8; S.C., Y.B. 2 Hen. IV. 14, pl. 5. + +378/2 Y.B. 50 Ed. III. 12b & 13. + +378/3 Y.B. 42 Ed. III. 3, pl. 14, per Belknap, arguendo. + +378/4 Noke v. Awder, Cro. Eliz. 373; S.C., ib. 436. Cf. Lewis v. +Campbell, 8 Taunt. 715; S.C., 3 J. B. Moore, 35. + +379/1 Middlemore v. Goodale, Cro. Car. 503; S.C., ib. 505, Sir +William Jones, 406. + +379/2 Harper v. Bird, T. Jones, 102 (Pasch. 30 Car. II.). These +cases show an order of development parallel to the history of the +assignment of other contracts not negotiable. + +380/1 Andrew v. Pearce, 4 Bos. & Pul. 158 (1805). + +383/1 Austin, Jurisprudence, II. p. 842 (3d ed.). + +383/2 "Quoniam non personae, sed praedia deberent, neque adquiri +libertas neque remitti servitus per partem poterit." D. 8. 3. 34, +pr. + +383/3 "Qui fundum alienum bona fide emit, itinere quod ei fundo +debetur usus est: retinetur id ius itineris: atque etiam, si +precario aut vi deiecto domino possidet: fundus enim qualiter se +habens ita, cum in suo habitu possessus est, ius non deperit, +neque refert, iuste nec ne possideat qui talem eum possidet." D. +8. 6. 12. + +383/4 Elzevir ed., n. 51, ad loc. cit.; Cicero de L. Agr. 3. 2. 9. + +383/5 D. 50. 16, 86. Cf. Ulpian, D. 41. 1. 20, Section 1; D. 8. +3. 23, Section 2. + +383/6 Inst. 2. 3, Section 1. + +384/1 D. 8. 1. 14, pr. Cf. Elzevir ed., n. 58, "Et sic jura . . . +accessiones ease possunt corporum." + +384/2 "Cum fundus fundo servit." D. 8. 4. 12. Cf. D. 8. 5. 20, +Section 1; D. 41. 1. 2O, Section 1. + +384/3 Jurisprudence, II. p. 847 (3d ed.). + +384/4 Cf. Windscheid, Pand., Section 57, n. 10 (4th ed.), p. 150. + +385/1 Fol. 10b, Section 3. + +385/2 Fol. 220b, Section 1. + +386/1 Fol. 221. + +386/2 Fol. 219a, b. + +386/3 Fol. 102a, b. + +386/4 Fol. 226 b, Section 13. All these passages assume that a +right has been acquired and inheres in the land. + +387/1 Fol. 53 a; cf. 59 b, ad fin., 242 b. + +387/2 "Nihil praescribitur nisi quod possidetur," cited from Hale +de Jur. Maris, p. 32, in Blundell v. Catterall, 5 B. & Ald. 268, +277. + +388/1 Bract., fol. 46b; cf. 17b, 18, 47 b, 48. + +388/2 Fol. 81, 81 b, 79 b, 80 b. + +388/3 Fol. 24 b, 26, 35 b, 86, 208 b, &c. Cf. F. N. B. 123, E; +Laveleye, Propriete, 67, 68, 116. + +388/4 Abbr. Plac. 110; rot. 22, Devon. (Hen. III.}. + +388/5 Stockwell v. Hunter, 11 Met. (Mass.) 448. + +389/1 Keilway, 130 b, pl. 104. + +389/2 Keilway, 113 a, pl. 45; Dyer, 2b. + +389/3 Keilway, 113a, pl. 45. Cf. Y.B. 33-35 Ed. I. 70; 45 Ed. +III. 11, 12. + +389/4 Litt. Section 589. + +389/5 Keilway, 2 a, pl. 2 ad fin. (12 Hen. VII.). But cf. Y.B. 6 +Hen. VII. 14, pl. 2 ad fin. + +389/6 4 Laferriere, Hist. du Droit. Franc. 442; Bracton, fol. 53a. + +390/1 Cf. Co. Lit. 322 b, et seq.; Y.B. 6 Hen. VII. 14, pl. 2 ad +fin. + +390/2 Daintry v. Brocklehurst, 3 Exch. 207. + +390/3 Y.B. 5 Hen. VII. 18, pl. 12. + +391/1 Y.B. 9 Hen. VI. 16, pl. 7. + +391/2 Y.B. 14 Hen. VI. 26, pl. 77. + +391/3 Y.B. 5 Hen. VII. 18, pl. 12. + +391/4 Cf. Theloall, Dig. I. c. 21, pl. 9. + +391/5 Buskin v. Edmunds, Cro. Eliz. 636. + +391/6 Harper v. Bird, T. Jones, 102 (30 Car. II.). + +391/7 Bolles v. Nyseham, Dyer, 254 b; Porter v. Swetnam, Style, +406; S.C., ib. 431. + +391/8 3 Bl. Comm. 231, 232. + +392/1 Yielding v. Fay, Cro. Eliz. 569. + +392/2 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Prior of +Woburn's Case, 22 Hen. VI. 46, pl. 36; Williams's Case, 5 Co. +Rep. 72 b, 73 a; Slipper v. Mason, Nelson's Lutwyche, 43, 45 +(top). + +392/3 F. N. B. 127; Nowel v. Smith, Cro. Eliz. 709; Star v. +Rookesby, 1 Salk. 335, 336; Lawrence v. Jenkins, L.R. 8 Q.B.274. + +392/4 Dyer, 24 a, pl. 149; F. N. B. 180 N. + +393/1 F. N. B. 128 D, E; Co. Lit. 96 b. It is assumed that, when +an obligation is spoken of as falling upon the land, it is +understood to be only a figure of speech. Of course rights and +obligations are confined to human beings. + +393/2 Keilway, 145 b, 146, pl. 15; Sir Henry Nevil's Case, Plowd. +377, 381; Chudleigh's Case, 1 Co. Rep. 119 b, 122 b. + +393/3 F. N. B. 180 N.; Co. Lit. 385 a; Spencer's Case, 5 Co. Rep. +16 a, 17 b; Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Keilway, +145 b, 146, pl. 15; Comyns's Digest, Covenant (B, 3). + +394/1 Holms v. Seller, 3 Lev. 305; Rowbotham v. Wilson, 8 H. L. +C. 348; Bronson v. Coffin, 108 Mass. 175, 180. Cf. Bro. Covenant, +pl. 2. + +394/2 Y.B. 21 Ed. III. 2, pl. 5; F. N. B. 180 N. + +394/3 The action is case in the Prior of Woburn's Case, Y.B. 22 +Hen. VI. 46, pl. 36. In F. N. B. 128 E, n. (a), it is said that a +curia claudenda only lay upon a prescriptive right, and that if +the duty to fence was by indenture the plaintiff was put to his +writ of covenant. But see below, pp. 396, 400. + +394/4 Y.B. 32 & 33 Ed. I. 430. + +395/1 Y.B. 20 Ed. I. 360. + +395/2 Y.B. 32 & 33 Ed. I. 516. + +395/3 "Quia res cum homine [obviously a misprint for onere] +transit ad quemcunque." Fol. 382, 382 b. + +395/4 Lib. VI. c. 23, Section 17. + +395/5 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14. + +395/6 Sugd. V. & P. (14th ed.), 587; Rawle, Covenants for Title +(4th ed.), p. 314. Cf. Vyvyan v. Arthur, 1 B. & C. 410; Sharp v. +Waterhouse, 7 El. & Bl. 816, 823. + +396/1 Co. Lit. 385 a. + +396/2 Cf. Finchden as to rent in Y. B, 45 Ed. III. 11, 12. + +396/3 Cf. Y.B. 50 Ed. III. 12, 13, pl. 2. + +397/1 Covenant, pl. 17. + +397/2 There is a colon here in both editions of the Year Books, +marking the beginning of a new argument. + +397/3 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14. + +398/1 Bro. Covenant, pl. 5. Cf. Spencer's Case, 5 Co. Rep. 16 a, +17 b, 18 a. + +398/2 Horne's Case, Y.B. 2 Hen. IV. 6, pl. 25. + +399/1 "Quod conceditur." Cf. Spencer's Case, 5 Co. Rep. 16 a, 18 +a. + +399/2 It was quite possible that two liabilities should exist +side by side. Bro. Covenant, pl. 32; Brett v. Cumberland, Cro. +Jac. 521, 523. + +399/3 1 Co. Rep. 122 b; S.C., sub nom. Dillon v. Fraine, Popham, +70, 71. + +400/1 Essays in Ang. Sax. Law, 248. + +400/2 Y.B. 22 Ed. I. 494, 496. + +400/3 Y.B. 4 Ed. III. 57, pl. 71; S.C., 7 Ed. III. 65, pl. 67. + +401/1 Bract., fol. 17 b, 37 b; Fleta, III. c. 14, Section 6; +1 Britton (Nich.), 223, 233, 244, 255, 312; Abbrev. Plac. +p. 308, col 2, Dunelm, rot. 43 (33 I.); Y. B, 20 Ed. I. 232; +Co. Lit. 384 b. + +401/2 Hyde v. Dean of Windsor, Cro. Eliz. 552. + +401/3 Spencer's Case, 5 Co. Rep. 16 a. Cf. Minshill v. Oakes, 2 +H. & N. 793, 807. + +402/1 Hyde v. Dean of Windsor, Cro. Eliz. 552, 553; S.C., ib. +457. Cf. Bally v. Wells, 3 Wilson, 25, 29. + +402/2 Dean of Windsor's Case, 5 Co. Rep. 24 a; S.C., Moore, 399. +Cf. Bro. Covenant, pl. 32. Cf. further, Conan v. Kemise, W. +Jones, 245 (7 Car. I.). + +403/1 F. N. B. 181 N; Sir Henry Nevil's Case, Plowden, 377, 381. + +403/2 Ewre v. Strickland, Cro. Jac. 240. Cf. Brett v. Cumberland, +1 Roll R. 359, 360 "al comen ley"; S.C., Cro. Jac. 399, 521. + +403/3 Cockson v. Cock, Cro. Jac. 125. + +403/4 Sale v. Kitchingham, 10 Hod. 158 (E. 12 Anne). + +403/5 Supra, pp. 396, 398, 400. Cf., however, Lord Wensleydale, +in Rowbotham v. Wilson, 8 H. L. C. 348, 362, and see above, p. +391, as to rents. + +404/1 4 Kent (12th ed.), 480, n. 1. + +404/2 It is used in a somewhat different sense is describing the +relation between a tenant for life or years and a reversioner. +Privity between them follows as an accidental consequence of +their being as one tenant, and sustaining a single persona +between them. + +406/1 Rowbotham v. Wilson, 8 H. L. C. 348, 362 (Lord +Wensleydale). + +406/2 Harbidge v. Warwick, 3 Exch. 552, 556. + +406/3 Rowbotham v. Wilson, 8 El. & Bl. 123, 143, 144. + +404/4 5 Co. Rep. 16, a. + +407/1 Y.B. 8 Ed. IV. 5, 6, pl. 1; 22 Ed. IV. 6, pl. 18. Cf. 5 Ed. +IV. 7, pl. 16. + +407/2 Cf. Keilway, 42 b, 46 b; 2 Bl. Comm. 329. + +408/1 Y.B. 14 Hen. VIII. 6, pl. 5. Cf. Chudleigh's Case, 1 Co. +Rep. 120a, 122 b; S.C., nom. Dillon v. Fraine, Popham, 70-72. + +408/2 Lewin, Trusts, Ch. I. (7th ed.), pp. 16, 15. + +408/3 4 Inst. 85; Gilb. Uses (Sugd.), 429, n. (6); Lewin, Trusts +(7th ed.), pp. 15, 228. + +408/4 Burgess v. Wheate, 1 Eden, 177, 203, 246. + +408/5 Lewin, Trusts, Introd. (7th ed.), p. 3. + +408/6 1 Rich. III. c. 1. Cf. Rex v. Holland, Aleyn, 14, Maynard's +arg.; Bro. Feoffements al Uses, pl. 44; Gilb. Uses, 26* (Sugd. +ed., 50). + +409/1 4th Inst. 85; S.C., Dyer, 869, pl. 50; Jenk. Cent. 6, c. +30. Cf. Gilb. Uses, 198* (Sugd. ed. 399). + +409/2 Gilb. Uses, 35* (Sugd. ed. 70). + +409/3 Theloall's Dig., I. 16, pl. 1. + + + + + + + +End of Project Gutenberg's The Common Law, by Oliver Wendell Holmes, Jr. + +*** 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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