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The Common Law

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 shah 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." /l / 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 1ed 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." /l / 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 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 under- stand 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
be come 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.