1881 2026
This is an AI modernization of The Common Law into contemporary English. The original is available from Project Gutenberg. Also available as an epub. The original text is also here.
Oliver Wendell Holmes Jr. was born in Boston in 1841, the son of the doctor and poet of the same name. He left Harvard in 1861 to fight in the Civil War and was wounded three times, at Ball's Bluff, at Antietam and in the Chancellorsville campaign. After the war he read law, practised in Boston, edited the American Law Review and brought out a new edition of Kent's Commentaries. In the winter of 1880 the Lowell Institute asked him to give a course of public lectures, and this book, published in 1881, is those lectures written up. It made his name. Within two years he was a judge of the Supreme Judicial Court of Massachusetts, and from 1902 to 1932 he sat on the Supreme Court of the United States.
The first paragraph is the most quoted thing he ever wrote: the life of the law has not been logic, it has been experience. The rest of the book is the evidence. Holmes takes the main branches of the common law in turn (crime, tort, the liability of carriers and innkeepers, possession, contract, inheritance) and traces each rule back to where it came from. Again and again the origin is something nobody believes any more: the ox that gored a man was surrendered to be punished, a ship was sued as if it were the wrongdoer, a buyer stood in the seller's shoes because an heir was thought to carry on the dead man's person. The reason disappears and the rule stays, and a later age invents a new reason for it.
His second argument is that the law's standards are external. The criminal law and the law of negligence ask what a reasonable man would have foreseen, not what this defendant felt, and the law does not care, in most cases, what a contracting party privately meant. That idea runs through modern American law, and much of what is still argued about in it starts from here.
The book is harder than its reputation, because Holmes wrote for lawyers. He cites year books, Roman jurists and German professors without introducing them, and he uses Latin and Law French as working vocabulary. This edition retells it in modern English. Terms of art are explained the first time they appear. The Latin and French are put into English or glossed where they stand. References to pages of the 1881 book now point to the Lecture. The original has more than eight hundred footnotes, almost all of them bare citations to the law reports; they have been dropped, and the 97 notes in which Holmes argues a point are kept in place as his. One slip of his own in Lecture Eight, where both printings name the plaintiff and the sense needs the promisor, has been corrected. The text as he published it, footnotes and all, is on the companion page.
Lecture I: Early Forms of Liability
Lecture III: Torts—Trespass and Negligence
Lecture IV: Fraud, Malice, and Intent—The Theory of Torts
Lecture V: The Bailee at Common Law
Lecture VII: Contract—I. History
Lecture VIII: Contract—II. Elements
Lecture IX: Contract—III. Void and Voidable
Lecture X: Successions after Death
Lecture XI: Successions—II. Inter Vivos
The object of this book is to present a general view of the Common Law. To do that, we need other tools besides logic. It is something to show that the consistency of a system requires a particular result, but it is not everything. The life of the law has not been logic: it has been experience. The felt necessities of the time, the moral and political theories that prevail, intuitions of public policy, whether openly stated or unconscious, even the prejudices that judges share with their fellow men, have had a good deal more to do than the syllogism with deciding 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 treated 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 consult, by turns, history and the existing theories of legislation. But the hardest work will be to understand how the two combine into new products at every stage. The substance of the law at any given time corresponds pretty closely, so far as it goes, with what is then thought convenient. But its form and machinery, and how well it is able to produce the results we want from it, depend very much upon its past.
In Massachusetts today there are, on the one hand, a great many rules that are fully accounted for by their obvious good sense. On the other hand, there are some that can only be understood by going back to the infancy of legal procedure among the German tribes, or to the social condition of Rome under the Decemvirs, the board of ten men who first wrote down Roman law in the fifth century before Christ.
I shall use the history of our law as far as it is needed to explain an idea or to interpret a rule, and no further. In doing so there are two errors, equally to be avoided by writer and reader alike. One is to suppose that because an idea seems very familiar and natural to us, it has always been so. Many things we take for granted had to be painfully 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 we shall look at 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 our series of law reports began, and the search for a theory that can now be said to prevail is very much a study of tendencies. I believe 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 have thought that Roman law started from the blood feud, the private war of revenge between one family and another, and all the authorities agree that German law began that way. The feud led to the composition, a payment by which the feud was bought off, at first optional and then compulsory. The composition's gradual advance can be traced in the Anglo-Saxon laws, and by the time of William the Conqueror the feud was pretty well broken up, though not extinguished. The killings and house-burnings of an earlier day became the appeals of mayhem and arson. (An appeal, in old English law, was a private accusation of crime brought by the injured person himself.) The appeal "of the peace and of wounds" (de pace et plagis) and the appeal of mayhem became, or rather were in substance, the action of trespass, which is still familiar to lawyers: the action for a direct and forcible wrong to a man's person or property. But since the compensation recovered in the appeal was the alternative to vengeance, we might expect its scope to be limited to the scope of vengeance. Vengeance implies 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 inflicted on purpose: even a dog distinguishes between being stumbled over and being kicked.
Whether for this reason or another, the early English appeals for personal violence seem to have been confined to intentional wrongs. Glanvill, the first great writer on English law, mentions brawls, blows, and wounds, all forms of intentional violence. In the fuller description of these appeals given by Bracton, the great lawyer of the thirteenth century, it is made quite clear that they were based on intentional assaults. The appeal de pace et plagis alleged an intentional assault, described the weapons used, and gave the length and depth of the wound. The accuser also had to show that he had immediately raised the hue and cry, the public outcry that called the neighborhood out in pursuit. So when Bracton speaks of the lesser offenses, which were not sued by way of appeal, he gives as examples only intentional wrongs, such as blows with the fist, flogging, wounding, insults, and so forth. The cause of action in the trespass cases reported in the earlier Year Books (the medieval reports of cases argued in the English courts) and in the Abbreviatio Placitorum, a digest of still older court records, is always an intentional wrong. It was only later, and after argument, that trespass was extended to cover harms that the defendant foresaw but did not intend as the consequence of his act. From there it was extended again to injuries nobody foresaw.
This order of development, you will notice, does not quite fit an opinion that some have held: that it was characteristic of early law not to look beyond the visible external fact, the damnum corpore corpori datum, "harm done by a body to a body." It has been thought that to inquire into the inner condition of the defendant, into his guilt or innocence, implies a refinement of legal thinking equally foreign to Rome before the Lex Aquilia (the Roman statute on wrongful damage to property) and to England when trespass took its shape. I do not know of any very satisfactory evidence that a man was generally held liable, either in Rome or in England, for the accidental consequences even of his own act. But whatever the earliest law may have been, the account just given shows the starting point of the system we have to deal with. 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 blame.
The original principles of liability for harm done by another person or by a thing have been less carefully studied so far than those governing trespass, and so I shall give the rest of this Lecture to them. I shall try to show that this liability, too, 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 that purpose requires. It is not only most interesting to trace the transformation through its whole extent; the story will also give an instructive example of the way the law has grown, without a break, from barbarism to civilization. Furthermore, it will throw much light on some important and peculiar doctrines that there will be no chance to come back 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 that gave rise to the rule has been forgotten, and ingenious minds set themselves to work out how it is to be accounted for. Some ground of policy is thought of that seems to explain it and to reconcile it with the present state of things. Then the rule adapts itself to the new reasons that have been found for it, and starts on a new career. The old form receives a new content, and in time even the form changes to fit the meaning it has received. The subject before us illustrates this course of events very clearly.
I will begin with a medley of examples, each embodying a distinct rule, and each with its own plausible and apparently sufficient ground of policy to explain it.
A man keeps an animal known to be vicious, which escapes and does his neighbor damage. He can prove that the animal got out through no negligence of his, but he is held liable all the same. Why? Because, says the analytical jurist, although he was not negligent at the moment it escaped, he was guilty of a more remote heedlessness, or negligence, or fault, in keeping such a creature at all. And one whose fault causes damage ought to pay for it.
A baker's man, driving his master's cart to deliver hot rolls one morning, runs another man down. The master has to pay for it. And when the master has asked why he should pay for the wrongful act of an independent and responsible human being, he has been answered, from the time of Ulpian down to that of Austin, that it is because he was to blame for employing an unfit person. If he replies that he took the greatest possible care in choosing his driver, he is told that this is no excuse. Then perhaps the reason shifts, and he is told that there ought to be a remedy against someone who can pay the damages, or that the wrongful acts that ordinary human experience shows are likely to happen in the course of the job are chargeable to the job.
Next, take a case where a limit has been set to a liability that used to be unlimited. In 1851 Congress passed a law, still in force, under which the owners of ships, in all the more common cases of loss at sea, can hand over the vessel and the freight then due on her to those who suffered the loss; and it provides that when they have done so, all further proceedings against the owners shall stop. The legislators to whom we owe this act argued that if a merchant puts part of his property into a risky venture, it is reasonable that his stake should be confined to what he puts at risk. That is a principle similar to the one on which corporations have been created in such numbers in America during the last fifty years.
It was a rule of criminal pleading in England down into the present century that an indictment for homicide must state the value of the instrument that caused the death. The purpose was to let the king, or whoever held the right from him, claim the forfeiture of the deodand, "as an accursed thing," in Blackstone's words. (The deodand was the object that had caused a man's death, forfeited to the Crown.)
I could go on multiplying examples, but these are enough to show how far apart the points are that have to be brought together. As a first step toward a generalization, we must consider what is to be found in ancient and independent systems of law.
There is a well-known passage in Exodus that we shall need 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 that passage built up into a system. Plutarch, in his life of Solon, tells us that a dog that had bitten a man was to be handed over tied to a log four cubits long. Plato, in his Laws, made elaborate provision for many cases of this kind. If a slave killed a man, he was to be given up to the dead man's relatives. If he wounded a man, he was to be given up to the injured party to do with as he pleased. The same held if he did damage to which the injured party had not himself contributed. In either case, if the owner failed to surrender the slave, he was bound to make good the loss. If a beast killed a man, it was to be killed and thrown out beyond the borders. If a lifeless thing caused a death, it was to be thrown beyond the borders in the same way, and expiation was to be made. Nor was all this an ideal creation of merely imagined law. In one of the speeches of Aeschines it is said 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 as an everyday matter, obviously without any thought that it was extraordinary, and only to set up a contrast with the honors heaped on Demosthenes. As late as the second century after Christ, the traveler Pausanias noted with some surprise that the Athenians still sat in judgment on lifeless things in the Prytaneum, their ancient town hall. Plutarch credits Draco with founding the practice.
In Roman law we find similar principles of noxae deditio, noxal surrender (the handing over of the offending creature or thing to the injured party), gradually leading to further results. The Twelve Tables, Rome's first written code (451 B.C.), provided that if an animal had done damage, either the animal was to be surrendered or the damage paid for. We learn from Gaius that the same rule applied to wrongs done by children or slaves, and there is some trace of it for lifeless things as well.
The Roman lawyers, not looking beyond their own system or their own time, used their wits to find an explanation that would show the law as they found it to be reasonable. Gaius said it was unjust that the fault of children or slaves should cost their parents or owners more than the bodies of the wrongdoers themselves. Ulpian reasoned that this was true all the more, a fortiori, of things without life, which are incapable of fault. This way of approaching the question treats the right of surrender as if it were a limit on a liability incurred by the parent or owner, a liability that would naturally, and to begin with, 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 limit on liability. On the contrary, in Rome and Greece alike, payment was introduced as the alternative to 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, the person who, if anyone, was to blame for not preventing it. Far from this being the practice, the person to be sued was whoever owned the slave or animal at the time of the suit. The action followed the guilty thing into whoever's hands it came. And in a curious contrast with the principle as later turned around to suit still more modern views of public policy, if the animal was of a wild nature—that is, in the very case of the most dangerous animals—the owner stopped being liable the moment it escaped, because at that moment he stopped being its owner. There seems to have been no other or wider liability under the old law, even where a slave did the wrong with his master's knowledge, unless perhaps the slave was a mere tool in his master's hands. Gaius and Ulpian showed an inclination to cut noxal surrender down to a privilege of the owner in cases 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 did wrong even with his master's knowledge and consent.
Footnote: The maxim was Noxa caput sequitur: the liability follows the offender himself.
All this shows very clearly that the owner's liability was merely a way of getting at the slave or animal that was the immediate cause of offense. In other words, the object of the Greek and early Roman process was vengeance on the immediate offender, not compensation from the master or owner. The owner's liability was simply a liability of the offending thing. In the primitive customs of Greece it was enforced by a legal proceeding directed expressly against the object, alive or lifeless. The Roman Twelve Tables made the owner the defendant instead of the thing itself, but did not in any way change the ground of liability or its limit. The change was simply a device to let the owner protect his interest.
Footnote: Gaius says that a noxal action may turn into a direct one, and a direct action into a noxal one. If the head of a family commits a wrong and is then adopted, or becomes a slave, a noxal action now lies against his new master in place of the direct action against himself as the wrongdoer.
But it may be asked how lifeless objects came to be pursued in this way, if the object of the procedure was to satisfy the passion of revenge. Learned men have been ready to find the reason in the habit, common to savages and children, of treating lifeless nature as if it were a person, and there is much to confirm this view. Without some such personification, anger toward lifeless things would have been brief at most. It is worth noticing that the commonest example in the most primitive customs and laws is a tree that falls on a man, or from which he falls and is killed. We can imagine fairly easily how a tree might be put on the same footing as an animal. It certainly was treated like one, and was handed over to the relatives, or chopped to pieces to satisfy a passion, real or put on.
In the Athenian process there is also, no doubt, a different thought to be traced. Expiation—the religious purging of guilt—is one of the ends Plato insists on most, and it appears to have been the purpose of the procedure Aeschines mentions. Some passages in the Roman historians, which will come up again, seem to point the same way.
Another peculiarity to notice is that the liability seems to have been thought of as attached to the body that did the damage, in an almost physical sense. An untrained mind carries out only imperfectly the analysis by which jurists trace responsibility back to the beginning of a chain of causes. The hatred of anything that gives us pain, which takes itself out on the obvious cause, and which leads even civilized man to kick a door when it pinches his finger, is embodied in noxal surrender and other related doctrines of early Roman law. There is a damaged passage in Gaius that seems to say that liability could sometimes be escaped by giving up even the dead body of the offender. So Livy relates that when Brutulus Papius had caused a breach of truce with the Romans, the Samnites decided to surrender him; and when he escaped disgrace and punishment by killing himself, they sent his lifeless body. It is worth noticing that the surrender seems to be regarded as the natural expiation for the breach of treaty, and that sending the body when the wrongdoer has died is treated as equally a matter of course.
Footnote: I follow Huschke's reading of that passage: it is lawful, if the offender has died a natural death, to give up the dead man; for although we have said that defendants are not permitted to surrender dead men, still, if someone gives up one who has died by his own fate, he is equally discharged. Ulpian's statement that the action is gone if the animal dies before the suit is joined is aimed only at the point that the liability is founded on possession of the thing.
Footnote: Livy adds that it was decided to hand over his property along with his body. Elsewhere he tells of a demand that the Fabii be surrendered for having violated the law of nations.
The most curious examples of this sort occur in the region of what we would now call contract. Livy again supplies one, if indeed the last case is not one already. The Roman consul Postumius concluded the disgraceful peace of the Caudine Forks—by a sponsio, a personal pledge, as Livy says, rejecting the usual story that it was by a formal treaty—and he was sent to Rome to get the people's approval. When he got there, however, he proposed that the persons who had made the contract, himself included, should be handed over in satisfaction of it. For, he said, since the Roman people had not approved the agreement, who is so ignorant of the jus fetialium, the sacred law of treaties and war kept by the priests called fetials, as not to know that the people are released from obligation by surrendering us? The formula of surrender seems to bring the case within noxal surrender. Cicero tells of a similar surrender of Mancinus to the Numantines by the pater patratus, the fetial priest who spoke for Rome in such matters; the Numantines, however, like the Samnites in the earlier case, refused to accept him.
Footnote: The formula of surrender ran: "Whereas these men, without the command of the Roman people, pledged that a treaty would be made, and have thereby done harm; therefore, so that the Roman people may be freed from impious guilt, I surrender these men to you." The words for doing harm, noxam nocuerunt, are the very words of the noxal action.
Footnote: Florus, in his account, says that Rome expiated the matter by the surrender of Mancinus. It has already been observed that the cases Livy mentions suggest that the object of the surrender was expiation as much as they suggest that it was satisfaction of a contract. Compare the provision attributed to the laws of Numa, that if a man killed another unintentionally, he should offer a ram in public to the dead man's kindred in place of the head of the slain.
It might be asked what likeness could be found between a breach of contract and the kinds of wrong that stir the desire for vengeance. But it must be remembered that the distinction between tort (a civil wrong other than a breach of contract) and breach of contract, and especially between the remedies for the two, is not found ready-made. It is conceivable that a procedure designed to redress violence was extended to other cases as they came up. Slaves were surrendered for theft as well as for assault; and it is said that a debtor who did not pay his debts, or a seller who failed to deliver goods he had been paid for, was dealt with on the same footing as a thief. This line of thought, together with the half-physical idea, already noticed, of legal obligations as binding the offending body, may explain the well-known law of the Twelve Tables on insolvent debtors. Under that law, if a man owed money to several creditors and could not pay, then 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.
If no other right had been given than that of reducing a debtor to slavery, the law might be taken to aim only at compensation, and to be modeled on the natural working of self-help. That seems to be the explanation of the principle of our own law that seizing a man's body on execution of a judgment satisfies the debt, even if he is not held for an hour. But the right to put him to death looks like vengeance, and the division of the body shows that the debt was thought of, quite literally, as lodged in the body or binding it with a vinculum juris, a "chain of law."
Footnote: Compare Varro's definition: a free man who gives his labor in servitude for money he owes, until he pays it, is called nexus, that is, "bound."
Whatever the true explanation of surrender in connection with contracts may be, for our present purpose we need not go further than the ordinary case of noxal surrender for wrongs. Nor is the apparent clinging of liability to the very body that did the harm of the first importance. Roman law dealt mainly with living creatures, with animals and slaves. If a man was run over, it did not surrender the wagon that crushed him, but the ox that drew the wagon. At this stage the idea is easy to understand. The desire for vengeance may be felt as strongly against a slave as against a free man, and even nowadays it is not unknown for a similar passion to be felt against an animal. The surrender of the slave or beast gave the injured party the power to do as he would with them. Payment by the owner was merely a privilege, in case he wanted to buy the vengeance off.
It is easy to imagine that such a system as I have described could not last once civilization had advanced to any considerable height. What had been a privilege of buying off vengeance by agreement—of paying for the damage instead of surrendering the body of the offender—no doubt became a general custom. The Aquilian law, passed a couple of centuries or so after the Twelve Tables, enlarged the range of compensation for bodily injuries. Interpretation enlarged the Aquilian law. Masters became personally liable for certain wrongs their slaves committed with their knowledge, where before they had only been bound to surrender the slave. If a pack mule threw its load onto a passer-by because it had been improperly overloaded, or a dog that could have been restrained got away from its master and bit someone, the old noxal action, as it was called, gave way to an action under the new law enforcing a general personal liability. Still later, shipowners and innkeepers were made liable, as if they themselves were wrongdoers, for wrongs committed by the people they employed on board ship or in the tavern, even though, of course, the wrongs were committed without their knowledge. The true reason for this exceptional responsibility was the exceptional trust that people were forced to place in carriers and innkeepers. But some of the jurists, who regarded the surrender of children and slaves as a privilege meant to limit liability, explained the new liability on the ground that the innkeeper or shipowner was to some degree guilty of negligence in having employed bad men. This was the first instance of a master being made liable without conditions for the wrongs of his servant. The reason given for it was of general application, and the principle expanded to fill the reach of the reason.
The law on shipowners and innkeepers introduced another and more startling innovation. It made them responsible when the people they employed were free, as well as when they were slaves. For the first time one man was made answerable for the wrongs of another who was answerable himself, and who had 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 of principal and agent: the doctrine that makes an employer answer for what his employee does on the job. All servants are now as free as their masters, and as open to being sued. Yet the principle introduced on special grounds in a special case, when servants were slaves, is now the general law of this country and of England. Under it men every day have to pay large sums for other people's acts, in which they had no part and for which they are in no sense to blame. And to this day the reason the Roman jurists offered for an exceptional rule is made to justify this universal and unlimited responsibility.
So much for one of the parents of our common law. Now let us turn for a moment to the Germanic side. The Salic Law, the code of the Salian Franks, embodies customs that in all probability are too early to have been influenced either by Rome or by 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 (the sum he would have had to pay to buy off the blood feud if he had killed the man himself), and for the other half shall give the beast up to the complainant. So, by chapter thirty-five, if a slave killed a free man, the slave was to be surrendered to the dead man's relatives for one half of the composition, and the master was to pay the other half. But according to the gloss, the explanatory commentary on the text, if the slave or his master had been mistreated by the slain man or his relatives, the master had only to surrender the slave. It is interesting to notice that the Northern sources that Wilda takes to represent a more primitive stage of German law limit liability for animals to surrender alone. There is also a trace that at a later date the master could, in some cases, clear himself by showing that the slave was no longer in his possession. There are later provisions making a master liable for wrongs his slave committed at his command. And in the laws the Thuringians adapted from the earlier sources, it is provided in so many words that the master is to pay for all damage done by his slaves.
Footnote: The Saxon law says that if a slave runs away after committing the deed, so that his master can no longer find him, the master pays nothing. The Ripuarian law forbids a man to turn his slave loose because of damage the slave has done to someone; the master must answer for him according to the damage, or offer him up for composition or punishment. But if the slave runs away after the wrong, so that the master cannot find him at all, the master may clear himself by oath that the deed was done neither by his will nor with his knowledge.
In short, so far as I can trace the order of development in the customs of the German tribes, it seems to have been entirely similar to the one 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 proof that all this has any bearing on our law of today. As far as the influence of Roman law on our own is concerned, especially the Roman law of master and servant, the evidence is to be found in every book written on the subject for the last five hundred years. It has already been said that we still repeat the reasoning of the Roman lawyers, empty as it is, to the present day. We shall see shortly whether the German folk-laws can also be followed into England.
In the Kentish laws of Hlothhere and Eadric (A.D. 680) 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," and so on. There are several other provisions like it. In the laws of Ine, from nearly the same time, 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." Alfred's laws (A.D. 871–901) have a similar provision about cattle: "If a neat wound a man, let the neat be delivered up or compounded for"—a neat being an ox or cow, and to compound, to pay a composition. And Alfred, although he came two hundred years after the first English lawgivers quoted here, seems to have gone back to more primitive ideas than we find before his time. For he extends the same principle to the case of a tree that kills a man: "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."
It is not out of place to compare what Mr. Tylor has reported about the Kukis, a hill people 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."
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 Norman Conquest, increase the lord's liability for his household and make him a surety for the good conduct of his men. If they incur a fine to the king and run away, the lord has to pay it, unless he can clear himself of any part in the offense. But I cannot say that I find the unlimited liability of master for servant, which was worked out on the Continent both by the German tribes and at Rome, until a later period. Whether the principle, once established, was a native 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. This is all that need be said here about the liability of a master for the misdeeds of his servants.
Footnote: A record from the reign of Edward III holds that "it seemed to the court that every master of a ship is bound to answer for any trespass done by his servants in his ship," and the court relied there on the Laws of Oléron, the old sea code. Later on, the influence of the Roman law is clear.
The next thing to show is 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 that the brute tends to do the kind of 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 ordered by King Alfred.
Let us turn to one of the old books of Scottish law, where the old principle still appears in full force and is stated together with its reasons as they were then understood. The passage says, in the Scots of its day, that if a wild or headstrong horse carries a man against his will over a cliff or into the water and the man drowns, the horse is forfeit to the king; but a tame, broken horse that a man foolishly spurs into the water is not forfeit, because the fault was the man's and not the horse's, and the man has already had his punishment by dying:
"Gif ane wylde or head-strang horse, carries ane man 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."
"Escheit" (escheat) means forfeited to the Crown, and the later addition limits the rule to beasts that are guilty of the killing. "The Forme and Maner of Baron Courts" then goes on to ask whether a mill is forfeit when a man falls into the mill-dam, is carried down by the water to the wheel, and is killed by it. The answer is no, because a mill is a dead thing, and a dead thing can commit no felony:
"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 escheit 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."
The reader will see in this passage, as I remarked earlier of the Roman law, that a distinction is drawn between things capable of guilt and things that are not—between living things and dead ones. But he will also see that no one had any difficulty in treating animals as guilty.
Take next an early passage of English law, a report of what one of the English judges laid down. In 1333 it was stated as law that "if my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me." In other words, if I promptly hand over the dog, you can get nothing more from me. More than three centuries later, in 1676, Justice Twisden said 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." It is at least doubtful whether that sentence would ever have been written but for the lingering influence of the idea 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, ownership was at an end by another principle of law. In fact, that very consideration was seriously pressed in England as late as 1846, in the case of a monkey that escaped and bit the plaintiff. So it seems a reasonable guess that the same way of thinking led Lord Holt, near the beginning of the eighteenth century, to suggest that one reason a man is bound at his peril to keep his cattle from trespassing is that he has a valuable property in such animals, whereas he has none in dogs, for which his responsibility is less. To this day, in fact, cautious judges state the law about cattle this way: "if I am the owner of an animal in which by law the right of property can exist, I am bound to take care that it does not stray into the land of my neighbor."
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 put the owner in place of the offending animal. It is probable that the early law was one of the causes that led to the modern doctrine. But there has been too much good sense at every stage of our law for it to adopt the sweeping consequences that would follow from such a wholesale transfer of liability. An owner is not bound at his peril to keep his cattle from harming his neighbor's person. And in some of the earliest cases of personal liability, even for trespass on a neighbor's land, the ground seems to have been the owner's negligence.
Footnote: In the laws of Ine, personal liability seems to be imposed where a man fails to fence. But if an animal breaks through hedges, the only remedy mentioned is to kill it, the owner keeping the skin and flesh and forfeiting the rest. In a case of 1353 or 1354 the defendant was held liable "because it was found that this was for default of guarding them . . . for default of good guard." 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." The old Scottish book called Regiam Majestatem draws further distinctions about a horse that kills a man.
It is the nature of the animals the common law recognizes as things that can be owned to stray, and, when they stray, to do damage by trampling and eating crops. At the same time it is usual and easy to restrain them. A dog, on the other hand, is not treated as property, and does no harm simply by crossing land that is not its owner's. To this extent, then, the new law might have followed the old. The right of property in the offending animal, which was the ancient ground of responsibility, could safely enough have been adopted as the test of a liability based on the owner's fault. But responsibility for damage of a kind not to be expected from such animals is settled on grounds of policy, comparatively little disturbed by tradition. I have already explained how personal liability for fierce wild animals developed at Rome. Our law seems to have followed the Roman.
We will now follow the history of the branch of the primitive notion that was least likely to survive—the liability of inanimate things.
It will be remembered that King Alfred ordered the surrender of a tree, but that the later Scottish law refused to forfeit a mill because a dead thing could not have guilt. It will be remembered, too, that the animals the Scottish law forfeited went to the king. The same has remained true in England until well into the nineteenth century, even of inanimate objects. As long ago as Bracton, when a man was killed, the coroner was to value the object that caused the death, and it was to be forfeited as a deodand "for the king." It was to be given to God—that is, to the Church—on the king's behalf, to be spent for the good of his soul. A man's death had ceased to be the private affair of his friends, as it had been in the time of the barbarian folk-laws. The king, who provided the court, now sued for the penalty. He took the family's place in the claim on the guilty thing, and the Church took his.
In Edward I's time some of the cases remind us of the barbarian laws at their crudest stage. If a man fell from a tree, the tree was deodand. If he drowned in a well, the well was to be filled up. 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." That is from a book written in the reign of Henry VIII, about 1530. And it has been repeated from Queen Elizabeth's time until within the last hundred years that if my horse strikes a man, and I afterward sell the horse, and after that the man dies, the horse shall be forfeited. This is why, in every indictment for homicide until very lately, it has been necessary to state the instrument that caused the death and its value—that the blow was given by a certain penknife, value sixpence, for instance—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 that is a most important factor in our law as it is today. For the moment I must leave the common law and take up the doctrines of the Admiralty, the courts that deal with ships and the sea. In the early books just referred to, and long afterward, the fact of motion is treated as very important. A maxim of Henry Spigurnel, a judge in the time of Edward I, is reported: "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." So it was said in the next reign, in Latin, that everything which moves along with the thing that kills a man shall be deodand to the lord king, or to the fee of a clergyman. The reader sees how motion gives life to the object forfeited.
The most striking example of this kind is a ship. And so the old books say that if a man falls from a ship and drowns, the motion of the ship must be taken to have caused the death, and the ship is forfeited—provided, however, that this happens in fresh water. If the death took place on the high seas, it was outside the ordinary jurisdiction. This proviso has been supposed to mean that ships at sea were not forfeited. But a long series of petitions to the king in Parliament, asking that such forfeitures be done away with, tells a different story. The truth seems to be that the forfeiture did take place, but in a different court. A manuscript of the reign of Henry VI, only recently printed, reveals that if a man was killed or drowned at sea by the motion of the ship, the vessel was forfeited to the admiral in a proceeding in the admiral's court, subject to release by favor of the admiral or the king.
A ship is the most living of inanimate things. Servants sometimes say "she" of a clock, but everyone gives a gender to vessels. We need not be surprised, therefore, to find a way of dealing with things that has shown such extraordinary vitality in the criminal law applied even more thoroughly in the Admiralty. Only by supposing that the ship was treated as if it had a personality can the arbitrary-seeming peculiarities of maritime law be made intelligible; and on that supposition they at once become consistent and logical.
To see what those peculiarities are, take first a 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 lease at the time; the lessee has put his own master in charge, and the owner of the vessel has no control over it whatever. The owner, therefore, is not to blame, and he cannot even be charged on the ground that the damage was done by his servants. On elementary principles he is free from personal liability. Yet it is perfectly settled that there is a lien on his vessel for the amount of the damage done—a legal claim against the ship itself. This means that the vessel may be arrested and sold to pay the loss by any admiralty court whose process can reach her. If a livery-stable keeper rents out a horse and wagon to a customer, and the customer runs a man down by careless driving, no one would think of claiming a right to seize the horse and wagon. Everyone would see that the only property that could be sold to pay for a wrong was the property of the wrongdoer.
But now suppose that the vessel, instead of being under lease, is in the charge of a pilot whom the laws of the port she is entering require her to employ. The Supreme Court of the United States holds the ship liable in this case too. The English courts would probably have decided otherwise, and in England the matter is settled by legislation. But there the court of appeal, the Privy Council, has been made up largely of common-law lawyers, and it has shown a marked tendency to bring admiralty into line with common-law doctrine. At common law, a person who could not make the owner personally liable could not bind a particular chattel—a particular piece of movable property—to answer for a wrong it had been the instrument of. 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 their 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. Rather than send one's own citizens abroad to look for a remedy 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 best they can. I dare say some such thought has helped keep the practice alive. But I believe its true historical foundation is elsewhere. The ship, no doubt, like a sword, would have been forfeited for causing death, in whosever hands it might have been. So, too, if the master and crew of a ship carrying letters of reprisal—a royal license to seize enemy shipping—committed piracy against a friend of the king, the owner lost his ship under admiralty law, although the crime was committed without his knowledge or consent. 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 the one by which it was bound to private sufferers for other damage, in whosever hands it might have been when it did the harm.
If we said to an uneducated man today, "She did it and she ought to pay for it," it may be doubted whether he would see the fallacy. He might not be ready to explain that the ship was only property, and that "The ship has to pay for it" was simply a dramatic way of saying that somebody's property was to be sold and the proceeds used 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. Here is a passage from a judgment of Chief Justice Marshall, which Justice Story quoted with approval 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 Justice Story quotes from another case: "The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing."
In other words, those great judges, though of course aware that a ship is no more alive than a mill wheel, thought not only that the law did in fact deal with it as if it were alive, but that it was reasonable for the law to do so. The reader will notice that they do not simply say it is reasonable, on grounds of policy, to sacrifice justice to the owner for the sake of security for somebody else. They say it is reasonable to deal with the vessel as an offending thing. Whatever the hidden ground of policy may be, their thought still dresses itself in the language of personification.
Let us now follow the peculiarities of maritime law in other directions, for the cases stated so far are only parts of a larger whole.
By the maritime law of the Middle Ages the ship was not only the source of liability but its limit. The rule already prevailed—since borrowed by the English statutes and by our own act of Congress of 1851—that the owner is discharged from responsibility for the wrongful acts of a master he himself appointed if he surrenders his interest in the vessel and the freight she has earned. Freight here means the money paid for carrying cargo. By the doctrines of agency he would be personally liable for the whole damage. If the origin of this system of limited liability, which is believed to be so essential to modern commerce, is to be found in the considerations of public policy on which it would be defended today, then the system has nothing to do with the law of collision. But if the limit of liability here stands on the same ground as noxal surrender, it confirms the explanation already given of the ship's liability for wrongs it did while out of the owner's hands; and, conversely, the existence of that liability confirms the argument here.
Now take another rule for which, as usual, there is a plausible explanation of policy. Freight, it is said, is the mother of wages: the sailors are paid only if the ship earns its freight. For, we are told, "if the ship perished, 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." The best commentary on this reasoning is that the law has recently been changed by statute. But even under the old law there was an exception inconsistent with the supposed reason. In a shipwreck, which was the usual way of failing to earn freight, the mariners' lien remained as long as any part of the ship was saved. I suppose it would have been said that this was because it was sound policy to encourage them to save all they could. But if we consider that the sailors were regarded as employed by the ship, we shall understand both the rule and the exception very readily. "The ship is the debtor," as was said in arguing a case decided in the time of William III. If the debtor perished, that was the end of the matter. If a part of it came ashore, that part might be proceeded against.
Even the rule in its modern form, that freight is the mother of wages, turns out, by the explanation commonly given of it, to be about whether the ship is lost or arrives safe. In the most ancient surviving source of maritime law that says anything on the matter, so far as I have been able to discover, the statement is that the mariners lose their wages when the ship is lost. In the same way, in what its English editor, Sir Travers Twiss, calls the oldest part of the Consulate of the Sea, the medieval Mediterranean sea code, we read that "whoever the freighter may be who runs away or dies, the ship is bound to pay the mariners." I think we may assume that the vessel was bound by its contract with the sailors much as it was by the wrongs it had to answer for—just as, under the ancient law of Rome, the debtor's body answered for his debts as well as for his crimes.
Footnote: The old French of the Judgments of the Sea says it in so many words: "they shall lose their wages when the ship is lost." According to its editor, that collection is the most ancient surviving source of modern maritime law, except the decisions of Trani. Molloy says the same: "If the ship perishes at sea they lose their wages."
Footnote: It should be added, however, that the same book lays down that if the vessel is detained in port by the local authorities, the master is not bound to pay the mariners wages, "for he has earned no freight."
The same is true of other maritime dealings with the vessel, whether by way of contract or otherwise. If salvage service is rendered to a vessel—if someone rescues her or her cargo from peril at sea—the admiralty court will hold the vessel liable for it, although it has been doubted whether an action of contract would lie if the owners were sued at law. So, too, the ship is bound by the master's contract to carry cargo, just as in the case of collision, even though 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. "By custom the ship is bound to the merchandise, and the merchandise to the ship." "By the maritime law every contract of the master implies an hypothecation"—that is, a pledge of the ship as security. It might no doubt be urged, with force, that in the usual maritime contracts the dealing must in many cases be done on the security of the ship or the merchandise, and that it is therefore good policy to give this security in all cases; that the risk it puts on shipowners can be calculated, and that they must take it into account when they lease their vessels. Again, in many cases where a party claims a maritime lien by way of contract, he has improved the condition of the thing on which he claims it, and some systems have recognized this as a ground for such a lien. But this is not true universally, nor in the most important cases. I must leave it to the reader to decide whether I have not shown ground for believing that the same metaphysical confusion that naturally arose about the ship's wrongful acts affected the way of thinking about her contracts. The whole manner of dealing with vessels plainly took the form that prevailed in the cases first mentioned. Pardessus, a high authority, says that the lien for freight holds even against the owner of stolen goods, "as the master deals less with the person than the thing." So it was said in the argument of a famous English case that "the ship is instead of the owner, and therefore is answerable." In many cases of contract, as well as of 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 built into its procedure. A suit may be brought there against a vessel by name. Anyone with an interest in the vessel is free to come in and defend, but the suit, if it succeeds, ends in a sale of the vessel and 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 against the ship and goods, and not against the party"—the libel being the plaintiff's written complaint in admiralty. And authority for the statement was cited from the reign of Henry VI, the same reign in which, as we have seen, the admiral claimed the forfeiture of ships for causing death. I am bound to say, however, that I cannot find any such 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 obvious 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 multiply and branch into products as different from one another as the flower from the root. It hardly remains to ask what that germ was. We have seen that it was the desire for retaliation against the offending thing itself. It might be argued, no doubt, that many of the rules described came from seizing the offending thing as security for reparation—at first, perhaps, outside the law altogether. That explanation, like the one offered here, would show that modern views of responsibility had not yet been reached, since the owner of the thing might very well not have been the person at fault. But that has not been the view of those most competent to judge. A look at the earliest instances will show, as might be 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 slave, under every one of the systems, was to be surrendered to the relatives of the slain man, so that they might do with him what they liked. The deodand was an accursed thing. The original limitation of liability to surrender, when the owner himself was before the court, could not be accounted for if it was his liability, and not that of his property, that was in question. Even where, as in some of the cases, expiation seems to be intended rather than vengeance, the object is just as remote from a seizure for security outside the courts.
This history, apart from the purposes for which I have given it, is a good illustration of 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 by syllogism from existing precedents. But just as the clavicle in the cat only tells of some earlier creature to which a collarbone 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 it is legislative 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 that 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 developed by litigation is in fact, and at bottom, the result of more or less clearly understood views of public policy. Most often, to be sure, under our practice and traditions, it is the unconscious result of instinctive preferences and inarticulate convictions, but it is traceable to views of public policy all the same in the last analysis. And because 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 keep themselves alive in the way that has been shown, and will be shown in this book, new reasons better suited to the time have been found for them. Gradually they take on a new content, and at last a new form, from the grounds to which they have been transplanted.
But up to now this process has been largely unconscious. For that reason it is important to call to mind what the actual course of events has been. If it did no more than press for a more conscious recognition of the legislative function of the courts, as just explained, it would be useful, as we shall see more clearly later on.
What has been said will explain the failure of all theories that consider the law only from its formal side—whether they try to deduce the whole body of it from principles assumed in advance, or fall into the humbler error of supposing that the science of law lies in its elegance, the logical cohesion of part with part. The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always keeps old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it stops growing.
The study we have been engaged in is necessary both for knowing the law and for revising it. However much we may codify the law into a series of seemingly self-sufficient propositions, those propositions will be only a phase in a continuous growth. To understand their scope fully, and to know how judges trained in the past that the law embodies will deal with them, 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 I have described has involved the attempt to follow precedents and also to give a good reason for them. When we find that in large and important branches of the law the various grounds of policy used to justify the various rules are later inventions, made up to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, take a broader view of the field, and decide anew whether those reasons are satisfactory. They may be, in spite of the way they came about. If truth were not often suggested by error, if old tools could not be adapted to new uses, human progress would be slow. But scrutiny and revision are justified.
None of these considerations, however, nor the aim of showing what materials for anthropology the history of the law contains, is 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 this fact will hardly matter outside the cases stated in this Lecture. But in the criminal law and the law of torts it is of the first importance. It shows that they started from a moral basis, from the thought that someone was to blame.
It remains to be proved that, while the vocabulary of morals is still kept, and while the law does still and always, in a certain sense, measure legal liability by moral standards, it is nevertheless, by the very necessity of its nature, continually transforming those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated.
At the beginning of the first Lecture it was shown that the appeals of the early law were aimed only at intentional wrongs. The appeal was a far older form of procedure than the indictment, the formal accusation of crime brought in the name of the state, and it may be said to have had a criminal as well as a civil side. It had a double object: to satisfy the private party for his loss, and to satisfy 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 and afterwards compulsory, by which a wrong-doer bought the spear from his side. Whether, so far as the king was concerned, it had the same object of vengeance, or was aimed more particularly at revenue, does not matter, since the king's claim did not enlarge the scope of the action.
It seems 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, the accused, on the merits was a bar to an indictment. And on the other hand, once an appeal was fairly started, the case might still be carried on in the king's behalf, even though the appellor, the accuser, failed to prosecute, or was defeated by a plea.
The presentment is the other parent of our criminal procedure: the accusation laid before the court by a body of neighbors sworn to report the crimes of their district. It had an origin distinct from the appeal. If, as has been thought, it was merely the successor of fresh suit, the hot pursuit of a wrong-doer by those he had wronged, and of lynch law, then this too is the child of vengeance, even more clearly than the other.
The desire for vengeance implies 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. That is commonly supposed, and it seems not impossible, considering how slowly 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 becomes plain if we consider the cases in which, for one reason or another, compensation for a wrong is out of the question.
Thus an act may be of a kind that makes indemnity impossible, by putting an end to the principal sufferer, as in murder or manslaughter.
Again, these and other crimes, like forgery, although directed against one individual, tend to make others feel unsafe, and this general insecurity cannot be paid for.
Again, there are cases where there is no means of enforcing indemnity. In Macaulay's draft of the Indian Penal Code, breaches of contract for carrying passengers were made criminal. The palanquin-bearers of India, who carried travelers in covered litters on poles, were too poor to pay damages. Yet they had to be trusted to carry unprotected women and children through wild and desolate country, where their desertion would have left those in their charge in great danger.
In all these cases punishment remains as an alternative. A pain can be inflicted on the wrong-doer that does not restore the injured party to his former situation, or to another equally good, but is inflicted for the very purpose of causing pain. And so far as this punishment takes the place of compensation—whether because the person wronged is dead, or because the persons affected are countless, or because the suffering cannot be priced in money, or because the criminal is poor—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. It may be said not only that the law does make the gratification of revenge an object, but that it ought to. This at any rate is the opinion of two authorities as great, and as opposed in their other views, as Bishop Butler and Jeremy Bentham. Sir James Stephen says, "The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite."
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 the law when the law did not help them, the law has no choice but to satisfy the craving itself, and so avoid the greater evil of private retribution. At the same time, this passion is not one that we encourage, either as private individuals or as lawmakers. Moreover, it does not cover the whole ground. There are crimes that do not excite it, and we should naturally expect the most important purposes of punishment to reach as far as punishment itself reaches. It remains to be discovered whether such a general purpose exists, and if so, what it is. Different theories still divide opinion on 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 was the only purpose. If it were, every prisoner should be released as soon as it is clear that he will never repeat his offence, and if he is incurable he should not be punished at all. And of course it would be hard to reconcile the death penalty with this doctrine.
The main struggle lies between the other two. On 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 first view, puts it in his almost mathematical form: wrong is the negation of right, and punishment is the negation of that negation, or retribution. So the punishment must be equal to the crime, in the sense of proportionate to it, because its only function is to destroy it. Others, without this logical apparatus, are content to rely on a felt necessity that suffering should follow wrong-doing.
It is objected that the preventive theory is immoral. It overlooks the ill-desert of wrong-doing, the objection runs, and it gives no measure of how much punishment is due, except the lawgiver's own opinion of how much suffering will be enough to prevent the crime. 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 their members have equal rights to life, liberty, and personal security.
In spite of all this, probably most English-speaking lawyers would accept the preventive theory without hesitation. As to the charge that it violates equal rights, 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 it needs conscripts 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. It pays the market value in that case, to be sure, because no civilized government sacrifices the citizen more than it can help; but it still sacrifices his will and his welfare to those of the rest.
Footnote: Even the law recognizes that this is a sacrifice.
If it were necessary to encroach further on the field of morals, it might be suggested that the dogma of equality, even between individuals, applies 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 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 on peace and on the social relations tends to make the law of social life look like the law of all life. But it seems to me clear that the ultima ratio—the last argument, not only of kings 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 that answer the argument of equal rights also answer the objection that the theory treats 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 a people has reached is no doubt marked by their anxiety to do as they would be done by. It may be the destiny of man that the social instincts will grow to control his actions absolutely, even in anti-social situations. But they have not yet done so. And since the rules of law are, or should be, based on a morality that 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 is 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 people who have been guilty of no moral wrong—people who could not be condemned by any standard that did not openly disregard the personal peculiarities of the individuals concerned. If punishment stood on the moral grounds proposed for it, the first thing to be considered would be the limits on the capacity for choosing rightly that arise from abnormal instincts, want of education, lack of intelligence, and all the other defects most marked in the criminal classes. I do not say that they should not be considered, or at least I do not need to say so 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 the affirmative argument for the theory of retribution: that the fitness of punishment following wrong-doing is axiomatic, and is instinctively recognized by unperverted minds. I think it will be seen, on self-inspection, that this feeling of fitness is absolute and unconditional only in the case of our neighbors. Suppose a man has satisfied himself that an act of his was wrong, and that he will never do it again. It does not seem to me that he would feel the least need or propriety, as between himself and an earthly punishing power alone, in his being made to suffer for what he had done—although, once third persons came in, he might admit as a philosopher 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.
But again, the supposed intuition of fitness does not seem to me to reach as far as the thing it is meant to account for. The lesser punishments are just as fit for the lesser crimes as the greater for the greater. The demand that crime be followed by its punishment should therefore be equal and absolute in both. Again, a malum prohibitum, an act wrong only because the law forbids it, is just as much a crime as a malum in se, an act wrong in itself. If there is any general ground for punishment, it must apply to the one as much as to the other. But suppose the wrong in the case just imagined was a breach of the revenue laws, and the government had been repaid its loss. It will hardly be said that we should feel any inner necessity that a man who had thoroughly repented 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 make good its threats, so 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 lawmaker makes certain conduct criminal without thereby showing a wish and purpose to prevent that conduct. Prevention, then, would 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 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 goes beyond the limits of retribution, and puts the public well-being ahead of the individual, will be found in some doctrines that 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 the one I shall mention next, but it has the support of very great authority. If it is the law, it must rest on one of two grounds. Either self-preference is proper in the case supposed; or, 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 strong enough motive to make a man choose death now in order to avoid the threat. If the first ground is adopted, it admits that a single person may sacrifice another to himself, and a fortiori—all the more—that a people may. If the second is taken, then by abandoning punishment when punishment can no longer be expected to prevent the act, the law abandons the retributive theory and adopts the preventive one.
The next doctrine leads to still clearer conclusions. Ignorance of the law is no excuse for breaking it. This principle of substance is sometimes put in the form of a rule of evidence, that every one is presumed to know the law, and so it has been defended by Austin and others on the ground that ignorance is hard to prove. But if justice requires the fact to be found out, the difficulty of doing so is no ground for refusing to try. And 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 the parties to a case can testify, it may be doubted whether a man's knowledge of the law is any harder to investigate than many questions that the courts do go into. Whatever difficulty there is would be met by putting the burden of proving ignorance on the lawbreaker.
Nor can the principle be explained by saying that we are commanded not only to abstain from certain acts, but also to find out that we are so 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 the guilt of knowingly disobeying the principal command. 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 the one that 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 should be equal for all, but it is still more desirable to put an end to robbery and murder. No doubt 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 lawmaker 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.
If these arguments are sound, it is already plain that liability to punishment cannot be finally and absolutely settled 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 the criminal law is meant 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. It may bring those conditions about directly, by the use of force—as when it protects a house from a mob with soldiers, or takes private property for public use, or hangs a man under a judicial sentence. Or it may bring them about indirectly, through men's fears. Either way, 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.
Put this purely external purpose of the law together with the fact that the law is ready to sacrifice the individual so far as necessary to accomplish it, and we can see more readily than before that the actual degree of personal guilt in any particular offence cannot be the only element, if it is an element at all, in the liability incurred. It is often assumed that the condition of a man's heart or conscience ought to count for more in deciding criminal liability than civil. So far from that being true, it might almost be said to be the very opposite of the 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 interfering. The most frequent of such reasons is that the party charged has been to blame.
I do not mean to deny that criminal liability, like 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 that punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear. I mean only to point out this: when we are dealing with the part of the law that aims more directly than any other at setting standards of conduct, we should expect to find there, more than anywhere else, 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 of general application. They do not merely require every man to 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 within well-known exceptions, such as infancy or madness. 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 most likely to go wrong through temperament, ignorance, or folly that the threats of the law are most dangerous.
How the doctrine that liability is founded on blameworthiness is to be reconciled with liability where the party is not to blame will be worked out more fully in the next Lecture. The answer lies 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 a question is put to them, 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 us about them.
I will begin with murder. Sir James Stephen, in his Digest of Criminal Law, defines murder as unlawful homicide with malice aforethought. In his earlier work he had explained that malice meant wickedness, and that the law had settled which states of mind were wicked in the necessary degree. Without that preliminary, he goes on in his Digest as follows:—
"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 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 regretting the harm as such, and wishing for it 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 more accurately, for the sake of the pleasure that knowing about the suffering would give. Now it is apparent from Sir James Stephen's list that, of these two elements of malice, only the intent matters in murder. It is just as much murder to shoot a sentry in order to free a friend as to shoot him because you hate him. Malice in the definition of murder does not have the same meaning as in common speech, and, for the reasons just given, it has been thought to mean criminal intention.
But intent in turn will be found to break down into two things: foresight that certain consequences will follow from an act, and the wish for those consequences, working as a motive that brings about 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: knowledge that the act will probably cause death—that is, foresight of the consequences of the act—is enough in murder, as it is in tort.
For instance, a newborn child is laid naked out of doors, where it must perish as a matter of course. This is none the less murder because the guilty party would have been very glad to have a stranger find the child and save it.
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 seen as standing to the present in the relation of effect to cause. Again we must look for a reduction to lower terms. If the known present state of things is such that the act will very certainly cause death, and the probability is a matter of common knowledge, then one who does the act, knowing the present state of things, is guilty of murder, and the law will not inquire whether he actually foresaw 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 that make an act dangerous. The act is not enough by itself. An act, it is true, implies 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 since an adult who is master of himself foresees with mysterious accuracy the outward movement that will follow his inward effort, that movement may be said to be intended. But the intent that necessarily goes with the act ends there. Nothing would follow from the act except for its surroundings. All acts, taken apart from their surrounding circumstances, are indifferent to the law. To crook the forefinger with a certain force, for instance, is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances—a pistol loaded and cocked, and a human being so placed 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 a loss, the cause nearest to it, was an act.
The reason for requiring an act is that an act implies a choice, and it is felt to be unwise and unjust to make a man answer 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. If this were not so, a man might be held answerable for everything that would not have happened but for some choice of his in the past. He might be held answerable, for instance, for falling on a man in a fit, 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 in circumstances in which it will be hurtful, unless those circumstances are known or ought to be. A fear of punishment for causing harm cannot work as a motive unless the possibility of harm can be foreseen. So far, then, as criminal liability is founded on wrong-doing in any sense, and so far as the threats and punishments of the law are meant to deter men from bringing about various harmful results, they must be confined to cases where the circumstances making the conduct dangerous were known.
Still, in a more limited way, the same principle applies to knowledge as 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 facts making up the present state of things. For instance, if a workman on a rooftop at midday 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; in other words, he is charged with knowledge of that fact too, whether he draws the inference or not. If, then, he throws a heavy beam down into the street, he does an act 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 in fact he did or not. If a death is caused by the act, he is guilty of murder. But if the workman has reasonable cause to believe that the space below is a private yard from which every one is shut out, and which is used as a rubbish heap, his act is not blameworthy, and the homicide is a mere misadventure—an accident for which no one is to blame.
To make an act that causes death murder, then, the actor ought, on principle, to know, or have notice of, the facts that make the act dangerous. There are certain exceptions to this principle, which will be stated presently, but they apply less to murder than to some lesser crimes created by statute. For the most part the general rule prevails in murder.
But furthermore, on the same principle, the danger that in fact exists under the known circumstances ought to be of a kind that 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. In most cases the question of knowledge is a question about the actual condition of the defendant's mind, whereas the question of what he might have foreseen is decided by the standard of the prudent man—that is, by general experience. For it must be remembered that the object of the law is to prevent human life from being endangered or taken. The law considers blameworthiness in punishing so far as not to hold a man responsible for consequences that no one, or only some exceptional specialist, could have foreseen. But the reason for this limit is simply to make a rule that is not too hard for the average member of the community. Since 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.
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 excused only on the ground that the party neither did foresee harm nor could, with proper care, have foreseen it.
At first sight it would seem that this analysis ought to exhaust the whole subject of murder. But it does not, without some further explanation. If a man forcibly resists an officer who is 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 the officer's official function, would be criminal at all. So, too, if a man does an act with intent to commit a felony, one of the graver crimes, and thereby accidentally kills another: if, for instance, he fires at chickens, meaning to steal them, and accidentally kills the owner, whom he does not see. A case like this last one seems hardly reconcilable with the general principles laid down above. It has been argued somewhat as follows. The only blameworthy act is firing at the chickens, knowing them to belong to another. It is neither more nor less blameworthy 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 when done under those circumstances, even though the danger was not generally known. The law often takes this step, although nowadays it seldom inflicts death in such cases. Sometimes it goes further still. It requires a man to find out present facts at his peril, as well as to foresee future harm at his peril, even when those facts are not such as would necessarily be inferred from what he knew.
Thus it is a statutory offence in England to abduct a girl under sixteen from the possession of the person who has lawful charge of her. If a man does things that lead a girl under sixteen to leave her parents, he cannot be charged if he had no reason to know that she was in the lawful charge of her parents; and presumably he could not be charged if he had reasonable cause to believe that she was a boy. But if he knowingly takes a girl away from 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. In the same way, under a law prohibiting the sale of liquor, it has been held that a man who sells "Plantation Bitters" has no defence in not knowing that they are intoxicating. And there are other examples of the same kind.
Now suppose experience shows, or the lawmaker believes it shows, that somehow or other deaths which the evidence makes out to be accidental happen disproportionately often in connection with other felonies, or with resistance to officers. Or suppose that on some other ground of policy it is thought desirable to make special efforts to prevent such deaths. Then the lawmaker may consistently treat acts which, under the known circumstances, are felonious, or amount to resisting an officer, as having a dangerous enough tendency to be put under a special ban. The law may therefore throw on the actor the risk not only of the consequences he foresaw, but also of consequences which common experience would not predict, but which the legislator fears. I do not mean to argue, however, that the rules under discussion actually arose from this reasoning, any more than I mean to argue that they are right, or that they would generally be applied in this country.
Returning to the main line of thought, it will be instructive to consider how manslaughter is related 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 the blow does kill, he commits manslaughter, not murder. But if the blow is struck as hard as possible with an iron bar an inch thick, it is murder. So, too, if at the time he strikes with a switch the man knows some further fact that lets him foresee that even a slight blow will cause death—for instance, that the other has heart disease—the offence is equally murder. To explode a barrel of gunpowder in a crowded street and kill people is murder, although the actor hopes no such harm will be done. But to kill a man by careless riding in the same street would commonly be manslaughter. Perhaps, however, a case could be put where the riding was so plainly dangerous that it would be murder.
To come back to an example already used for another purpose, here is Blackstone: "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." Misadventure is simply accident, for which there is no guilt.
The law of manslaughter contains one more doctrine which must be mentioned to complete our understanding of the general principles of the criminal law. It is that provocation may reduce to manslaughter an offence which would otherwise have been murder. According to current morality, a man is less to blame for an act done in the grip of great excitement, caused by a wrong done to himself, than for the same act done calmly. 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 ought to be threatened exactly where the strongest motive is needed to hold a man back; and early legislation seems sometimes to have gone on that principle. But if any threat will restrain a man in a passion, a threat of something less than death will be enough, and so the extreme penalty has been thought excessive.
Yet even here the objective nature of legal standards shows itself. The mitigation does not come from the fact that the defendant was beside himself with rage. It is not even 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 rule 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 which 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 deprived of the power of self-control by the provocation which he has received." There are obvious reasons for taking the defendant's actual state of mind into account to this extent. The only ground for departing from the general rule is that the defendant was in such a state that he could not be expected to remember the fear of punishment, or be influenced by it. If he could be, the ground for the exception disappears. Yet even here, rightly or wrongly, the law has gone far toward adopting external tests. The courts seem to have decided between murder and manslaughter on such grounds as the kind of weapon used, or the length of time between the provocation and the act. In other cases, though, the question whether the prisoner was deprived of self-control by passion has been left to the jury.
The object of this Lecture is not to give an outline of the criminal law but to explain its general theory. So I shall consider only those offences which throw some special light on the subject, and I shall take them up in whatever order seems best for that purpose. It will now be useful to turn to malicious mischief—the crime of deliberately damaging another's property—and to compare the malice required for that offence with the malice aforethought of murder.
It has been shown that the charge of malice aforethought in an indictment for murder does not 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 really an allegation like the allegation of negligence. It asserts that the accused did not come up to the legal standard of action in the circumstances in which he found himself, and also that no exceptional fact or excuse was present to take the case out of the general rule. It is a statement of a legal conclusion, which is allowed to stand as a shorthand for the facts, positive and negative, on which it rests.
When a statute punishes "wilfully and maliciously" injuring another's property, it is arguable, if not clear, that something more is meant. We presume that the second word was not added without some meaning, and that presumption is backed by how unreasonable it would be to make every wilful trespass a crime. If this reasoning prevails, "maliciously" is used here in its popular sense. It means that the defendant's motive was a wish to harm the owner of the property—or the thing itself, if it was a living creature—as an end in itself, for the sake of the harm. Malice in this sense has nothing in common with the malice of murder.
A statute need not claim to be consistent with itself, or with the theory adopted by judicial decisions. So strictly speaking there is no need to reconcile such a statute with the principles which have been explained. But in fact there is no inconsistency. Punishment must be confined to compelling outward conformity to a rule of conduct, in the sense that it can always be avoided by avoiding certain acts, or doing them as required, whatever the intent or motive. Still, the prohibited conduct may be harmless unless it is accompanied by a particular state of feeling.
Ordinary disputes about property are satisfactorily settled by compensation. But everyone knows that sometimes secret harm is done by neighbor to neighbor out of pure malice and spite. The damage can be paid for, but the malignity calls for revenge. And since such wrongs are always done in secret, their authors are hard to detect, and that difficulty is a ground for punishment, even if revenge is thought an insufficient one.
How far the law will go in this direction is hard to say. Arson is defined as the malicious and wilful burning of another man's house, and it 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 out of any desire to destroy the building, but solely to make his escape. But the better opinion seems to be that this is arson, in which case any 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, we can readily understand that only intentional burnings were redressed in that way. The appeal of arson was brother to the appeal "of peace and wounds," the appeal for a breach of the peace with wounding. As that one was founded on a warlike assault, so the appeal of arson supposed a house-burning for robbery or revenge, like the one in which Njal perished in the Icelandic saga. But this crime seems to have had the same history as the others. As soon as intent is admitted to be enough, the law is on the high road to an external standard.
A man who intentionally sets fire to his own house, standing so near other houses that the fire will manifestly endanger them, is guilty of arson if one of the other houses burns as a result. Here an act which would not have been arson, if only its immediate consequences were counted, becomes arson because of more remote consequences which were manifestly likely to follow, whether they were actually intended or not. If that can 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, in the surrounding circumstances, to cause the same harm? Cases are easily imagined in which 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 fire. If in such cases the crime is held to have been committed, an external standard has been reached, and the analysis already made of murder applies here too.
There is another class of cases in which intent plays an important part, for reasons quite different from those offered to account for the law of malicious mischief. The most obvious examples 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—an act actually done in the world. It differs from the crime attempted in this: the act has failed to bring about the result that would have made it 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.
Suppose an act is done whose natural and probable effect, in the circumstances, is to accomplish a substantive crime—a crime complete in itself, as opposed to an attempt at one. If the act does not have that effect in the particular case, the criminal law may properly enough lighten the punishment; but on any theory it can hardly refuse to punish it altogether. It has been argued that in such instances only an actual intent can give the act a criminal character. But if the views I have put forward about murder and manslaughter are sound, the same principles ought logically to decide whether acts in general are criminal. Acts should be judged by their tendency under the known circumstances, not by the actual intent that goes with them.
It may be true that in the field of attempts, as elsewhere, the law began with cases of actual intent, since those are the most obvious. But it cannot stop there, unless it cares more about the dictionary meaning of the word "attempt" than about the general principles of punishment. Accordingly there is at least some show of authority for the proposition that an act is punishable as an attempt if, supposing it had produced its natural and probable effect, it would have amounted to a substantive crime.
Footnote: The statement that a man is presumed to intend the natural consequences of his acts is a mere fiction disguising the true theory. I shall come back to it in Lecture IV.
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 color the whole doctrine. Some acts may be attempts or misdemeanors—lesser crimes, below the grade of felony—even though they could not have brought about the crime unless the wrongdoer had followed them with other acts of his own. For instance, lighting a match with intent to set fire to a haystack has been held to be a criminal attempt to burn it, although the defendant blew the match out when he saw he was being watched. So the purchase of dies for making counterfeit coin is a misdemeanor, although of course no coin would be counterfeited unless the dies were used.
In such cases the law goes on a new principle, different from the one 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 in the circumstances in which it is done. In most substantive crimes the likelihood rests on the ordinary working of natural causes, as experience shows it. But when the law punishes an act whose natural effect, in the circumstances, is not harmful, that ground alone will not do. The probability of harm exists only if there are grounds for expecting the act to be followed by other acts, in combination with which its effect will be harmful, though it would not be harmful otherwise. But since no such acts have in fact 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 unless the actor had chosen to do them; and the only means generally available for showing that he would have chosen to do them is to show that he intended to do them when he did what he did. In that case the accompanying intent makes the otherwise innocent act harmful, because it raises a probability that the act will be followed by other acts and events which will 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 readily be seen that there are limits to this kind of liability. The law does not punish every act done with the intent of bringing about a crime. If a man starts from Boston to Cambridge meaning to commit a murder when he gets there, but is stopped by the drawbridge and goes home, he is no more punishable than if he had sat in his chair and resolved to shoot somebody, and then on second thoughts given up the idea. On the other hand, a slave who ran after a white woman, but stopped before he caught her, has been convicted of an attempt to commit rape. 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 between these two sets of cases, or even how to state the principle on which it should be drawn. But the principle is believed to be much like the one on which the law draws all its other lines. Public policy—that is to say, considerations of legislation—lies at the bottom of the matter; and the considerations in this case are 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 sets off on a journey meaning to murder at the end of it, there is still a considerable chance that he will 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 go through with it, and the danger becomes so great that the law steps in. With an object which could not be used innocently, the point where the law intervenes might be set further back, as in the case of buying a die for coining.
The degree of apprehension may affect the decision as well as the degree of probability that the crime will be carried out. No doubt the fears peculiar to a slaveowning community had their share in the conviction just 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 is a man, is not an attempt to murder, and that to put a hand into an empty pocket, intending to pick it, is not an attempt to commit larceny—although on the second question opinions differ. The reason given is that an act which could not have accomplished the crime, even if the actor had been allowed to follow it through to every result it could in the nature of things have led to, cannot be an attempt to commit that crime when it is interrupted. At some point or other, of course, the law must adopt this conclusion, unless it proceeds on the theory of retribution for guilt rather than prevention of harm.
But even to prevent harm effectively, 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 less an attempt to murder because the bullet misses. Yet there the act has produced the whole effect it could possibly produce in the course of nature. It is just as impossible for that bullet, in those circumstances, to hit that man as it is to pick an empty pocket. But there is no difficulty in saying that such an act, in such circumstances, is so dangerous, so far as human foresight can tell, that it ought to be punished. No one can know for certain, 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 follow, and no theft can be committed on an empty pocket—besides which, the harm of a 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 the discouragement broad enough and easy to understand.
There remain certain substantive crimes which differ in very important ways from murder and the like, and which the foregoing analysis of intent in criminal attempts and similar misdemeanors will help to explain.
The type of these is larceny, the common-law crime of theft. Under this name the law punishes acts which would not by themselves be enough to accomplish the evil it seeks to prevent, and which are treated as equally criminal whether that evil has come about or not. Murder, manslaughter, and arson, on the other hand, are not committed unless the evil is accomplished; and they all consist of acts whose tendency, in the surrounding circumstances, is to hurt or destroy person or property by the mere working of natural laws.
In larceny the consequences flowing directly from the act are generally used up with little or no harm to the owner. Goods are removed from his possession by trespass, and that is all there is when the crime is complete. But they must be kept from him permanently before the harm the law seeks to prevent is done. A momentary loss of possession is not what such severe penalties guard against. What the law means to prevent is the loss of it wholly and for ever, as is shown by the fact that it is not larceny to take a thing for 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 it seeks to prevent, and punishes it before that evil 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 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 will not follow from the act of taking, but only from the series of acts which make up removing and keeping the property after it has been taken. With these preliminaries out of the way, the bearing of intent on 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."
There must be an intent to deprive the owner of his ownership, 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 with the way attempts are handled is plain. Theft may be called an attempt to deprive a man of his property permanently, which is punished with the same severity whether it succeeds or not. If theft can rightly be seen this way, intent must play the same part as in other attempts. An act which does not fully accomplish the forbidden result may be made wrongful by evidence that, but for some interference, it would have been followed by other acts working with it to produce that result. And 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 kept the stolen goods, or at least would not have taken steps to return them. Nor would it matter if 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, standing in out of practical necessity for actual deprivation, it ought not to be required where the actual deprivation is wholly accomplished, so long as one and the same criminal act produces the whole effect. Suppose, for instance, that with a single motion a man seizes another's horse and backs it over a precipice. The whole evil the law seeks to prevent is the natural and manifestly certain consequence of the act under the known circumstances. In such a case, if the law of larceny is consistent with the theories maintained here, the act should be judged by its tendency, and the wrongdoer's actual intent should not be considered at all. 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 wrongful and without excuse, and that it would have been larceny if done for the purpose of depriving the owner of his horse. Nevertheless, if it was done for the sake of an experiment, without actual foresight of the destruction and without any 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 the law has grown. The distinctions the common law draws about theft are not those of a broad theory of legislation. They are highly technical, and to a very large extent only history can explain them.
The type of theft is taking to one's own use. It used to be thought, and sometimes still is, that the taking must be lucri causa—for the sake of some advantage to the thief. In such cases the owner loses his property by the thief's keeping it, not by its destruction, and whether the loss will be permanent can only be judged beforehand by the intent to keep. The intent is therefore always necessary, and it is naturally stated as a self-regarding intent, an intent to benefit oneself. It was an advance on the old precedents when it was decided that the intent to deprive the owner of his property was enough. As late as 1815 the English judges stood only six to five in favor of holding that it was larceny to take a horse intending to kill it, for no other purpose than to destroy evidence against a friend. Even that case, however, did not end the universality of intent as a test. For there the destruction came after the taking, and it is an ancient rule that the criminality of the act must be judged 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 the criminal law, or would be held back by tradition, could only be decided by a case like the one supposed above, where the same act accomplishes both the taking and the destruction. As I have already suggested, 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 in it. The object of punishing such a breaking and entering is not to prevent trespasses, even at night, but only those trespasses which are the first step toward wrongs of greater magnitude, like robbery or murder. Here the function of intent, when it is proved, appears more clearly than in theft, but it is exactly the same. It is an index to the probability of certain future acts which the law seeks to prevent. And here the law itself gives evidence that this is the true explanation. For if the feared act did follow, it is no longer necessary to allege that the breaking and entering was done with that intent. An indictment for burglary charging that the defendant broke into a dwelling-house and stole certain property is just as good as one alleging that he broke in with intent to steal.
Footnote: 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.
I believe 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 themselves, neither innocent nor criminal.
In the characteristic type of substantive crime, acts are made criminal because they are done under 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 every reference to the state of his consciousness is misleading if it means anything more than this: that the circumstances by which the tendency of his act is judged are the circumstances known to him. Even the requirement of knowledge is subject to certain limits. A man must find out at his peril things which a reasonable and prudent man would have inferred from the things he actually knew. In some cases, especially of statutory crimes, he must go even further: when he knows certain facts, he 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.
In some cases it may be that the consequence of the act, in 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 for two reasons: 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 in theory, and in practice 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, it is either 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 the law seeks to prevent.
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. If the attempt succeeds, it will reveal the general principle of civil liability at common law. The liabilities a man takes on by contract are more or less expressly fixed by the agreement of the parties. Those that arise from a tort are independent of any earlier consent by the wrongdoer to bear the loss his act causes. If A makes a binding promise to pay a certain sum on a certain day, or to deliver a lecture on a certain night, and fails to do it, the damages he has to pay are recovered in accordance with his own consent that some or all of the harms his failure might cause should fall upon him. But when A assaults or slanders his neighbor, or converts his neighbor's property—that is, deals with it as if it were his own—he does a harm that he has never consented to bear. If the law makes him pay for it, the reason must be found in some general view of the conduct that everyone may fairly expect and demand from everyone else, whether that other person 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 the point at which I shall try to show it has arrived are on different planes. In the progress from one to the other, we should expect its course not to be straight and its direction not always to be 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 it is much harder to show because, until lately, the substance of the law has been approached only through the categories of the forms of action—the fixed set of writs, each with its own procedure, into one of which every lawsuit had to fit. Discussions of the principles a lawmaker ought to follow have been darkened by arguments over the boundary between trespass and case, or over 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 from the time of the assize and the jurata, the early forms of sworn inquest that came before the modern jury, have been applied without a thought of their connection with a long-forgotten procedure.
Now that 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 once they have forgotten the special knowledge needed for technical reasoning. But the present willingness to generalize rests 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 on which their decisions must always rest in the end. It is natural, too, that they should base their judgments on broad considerations of policy, which the traditions of the bench would hardly have allowed them to mention fifty years ago.
The business of the law of torts is to fix the dividing lines between the cases in which a man is liable for harm he has done and those in which he is not. But it cannot let him predict with certainty whether a given act under given circumstances will make him liable. An act will rarely have that effect unless damage follows, 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 the law can lay down beforehand are rules for deciding what conduct will be followed by liability if it is followed by harm—that is, the conduct a man pursues at his peril. The only guide for the future that can be drawn from a decision against a defendant in an action of tort is this: similar acts, done in circumstances that cannot be told apart from the defendant's except by the result, are done at the peril of the actor. If he escapes liability, it is simply because, by good fortune, no harm comes of his conduct on that particular occasion.
If, therefore, there is any common ground for all liability in tort, we shall best find it by setting aside the event as it actually turns out, and considering only the principles on which the peril of his conduct is thrown upon the actor. We are to ask what the elements are, on the defendant's side, that must all be present before liability is possible, and whose presence 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. So it might naturally be supposed that the risk of a man's conduct is thrown upon him as the result of some moral shortcoming. But while this notion has had its supporters, 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—in other words, that he acts at his peril always, and wholly regardless of the state of his mind on the matter.
To test the first opinion, it would be natural to take up one by one the words, such as negligence and intent, that in the language of morals name various well-understood states of mind, and to show what they mean in the law. To test the second, it would perhaps be more convenient to consider it form of action by form of action. So many of our authorities are decisions under one or another of these forms that it would not be safe to neglect them, at least at first. A compromise between the two approaches may be reached by beginning with the action of trespass and the notion of negligence together, and leaving the wrongs that are defined as intentional for the next Lecture.
Trespass lies for unintentional as well as intended wrongs. Any wrongful and direct application of force is redressed by that action. It therefore offers a fair field for discussing 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 according to whether the remedy happens to fall on one side or the other of the penumbra that separates trespass from the action on the case—the action, developed later, for harm done indirectly rather than by direct force. 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 is founded on the defendant's negligence. But if that is 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 is true, the law must apply the same test to other wrongs that differ from trespass only in some technical point—for instance, that the property damaged was in the defendant's possession. Neither assumption, however, can be allowed to pass so quickly. 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 found either in the defendant's super se assumpsit—his having "taken it upon himself," that is, undertaken the task—or in his public calling, such as that of an innkeeper or a carrier. 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 technical side of the discussion can therefore be shortened by confining it to trespass, as far as that can be done without shutting out the light to be had from other parts of the law.
Footnote: I return to the undertaking and the public calling in Lecture VII.
As has just been hinted, there are two theories of the common-law liability for unintentional harm. Both seem to have the tacit approval of the popular textbooks, and neither lacks plausibility or the appearance of authority.
The first is that of Austin, the English writer on jurisprudence, and it is essentially the theory of a criminal lawyer. According to him, the defining feature of law, properly so called, is a sanction—a detriment threatened and imposed by the sovereign for disobedience to the sovereign's commands. Since the greater part of the law only makes a man answerable in a civil action for breaking it, Austin is compelled to regard liability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows from this, on the prevailing views of penal law, that such liability ought to be based only on personal fault. Austin accepts that conclusion, with its corollaries, one of which is that negligence means a state of the party's mind. These doctrines will be taken up later, so far as necessary.
The other theory is directly opposed to this one. It seems to be adopted by some of the greatest common-law authorities, and it needs serious discussion before it can be set aside in favor of any third opinion. According to this view, broadly stated, under the common law a man acts at his peril. It may be held, as a sort of offset, that he is never liable for omissions except as a result of some duty he has voluntarily undertaken. But outside that class, the whole and sufficient ground for such liabilities as he does incur is supposed to be that he acted voluntarily and that damage followed. If the act was voluntary, it makes no difference at all that the harm that followed was neither intended nor due to the actor's negligence.
To do justice to this way of looking at the subject, we must remember that abolishing the common-law forms of pleading has not changed the rules of substantive law. So although pleaders now generally allege intent or negligence, anything that would formerly have been enough to hold a defendant liable in trespass is still enough, even though the ancient form of action and of declaration—the plaintiff's formal written statement of his claim—has disappeared.
In the first place, it is said, consider in general the protection the law gives to property, both within and outside the limits of the action of trespass. 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—the action of trespass "for breaking the close," that is, for entering another man's land. If an auctioneer, in perfect good faith and in the regular course of his business, sells goods sent to his rooms to be sold, he may be made to pay their full value if a third person turns out to be the owner, even though he has paid over the proceeds and has no way of getting reimbursed.
Now suppose that, instead of dealing with the plaintiff's property, the defendant has applied force directly from his own body to the plaintiff's body. It is urged that, since the law cannot be less careful of its subjects' persons than of their property, the only defenses possible are like those that would be open against a charge of 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 onto the plaintiff, or where a third person took his hand and struck the plaintiff with it. In such cases the defendant's body is the passive instrument of an outside force, and the bodily motion the plaintiff relies on is not his act at all. So, too, you may show a justification or excuse in the conduct of the plaintiff himself. But if no such excuse is shown, and the defendant acted voluntarily, he must answer for the consequences, however little intended and however unforeseen. If, for instance, the defendant was attacked by a third person, lifted his stick, and accidentally hit the plaintiff, who was standing behind him, then on this view he is liable, whether or not he was negligent toward the person he hurt.
The arguments for this doctrine are drawn for the most part from precedent, but it is sometimes thought to be defensible as sound in theory. Every man, it is said, has an absolute right to his person, and so forth, free from harm 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 had no share in producing it.
We have harder material 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, "with force and arms," and contra pacem, "against the peace," which might seem to imply intent, are supposed to have been put in merely to give the king's court jurisdiction. Glanvill says that it belongs to the sheriff, when the lords who held their own local courts neglected the matter, to take charge of brawls, blows, and even wounds, unless the accuser adds a charge of breach of the king's peace (nisi accusator adjiciat de pace Domini Regis infracta). Reeves, the historian of English law, 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 armis, of 'the king's crown and dignity,' 'the king's peace,' and 'the peace,'—this last expression being sufficient, after the peace of the sheriff had ceased to be distinguished as a separate jurisdiction."
Footnote: Fitzherbert says that in the writ of trespass brought before the sheriff, which does not come into the king's court, the words "with force and arms" are not to be used.
Again, it might be said that if the defendant's intent or neglect were essential to his liability, the absence of both would take away his act's character as a trespass, and so ought to be provable under the general issue—the plea of "Not guilty," which denies the plaintiff's charge as a whole. But it is perfectly well settled at common law that "Not guilty" only denies the act.
Next comes the argument from authority. I will begin with an early and important case, from the year 1466. It was trespass quare clausum. The defendant pleaded that he owned the neighboring land, on which there was a thorn hedge; that he cut the thorns, and that they, against his will (ipso invito), fell onto the plaintiff's land; and that he went quickly onto that land and took them away, which was the trespass complained of. On demurrer—that is, on the plaintiff's answer that, even if all this were true, it was no defense—judgment was given for the plaintiff. The plaintiff's counsel put cases that have often been repeated since. 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, etc., 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, etc.; but if he wounds one by shooting, he shall have a good action of trespass against him, and yet the shooting was lawful, etc., and the wrong which the other receives was against his will, etc.; and so here, etc." (Shooting at butts means target practice with a bow.) 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 etc. 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, etc.; and yet the raising of the house was lawful, and the timber fell, me invito, etc. 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, etc.; and so here, etc."
Footnote: For the translation of this case I have for the most part followed the one given by Ames.
The judges spoke to the same effect. "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, etc., 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, 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, the Year Books report Justice Rede as adopting Fairfax's argument in that 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"—and it shall be as if he had no intent to kill him—"and so of a tiler on a house who with a stone kills a man unwittingly, it is not felony. 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, Dickenson v. Watson, and Underwood v. Hewson, running from 1616 to 1723, and followed by the Court of Appeals of New York in Castle v. Duryee in 1865—in which defenses to the effect that the damage was done accidentally and by misfortune, and against the defendant's will, were held not to be enough.
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 bird, and thereby set fire to his own house and to his neighbor's, he was liable in an action on the case in general terms, the declaration not being based on the custom of the realm, "viz. for negligently keeping his fire." "For the injury is the same, although this mischance was not by a common negligence, but by misadventure."
These instances of the stick and of shooting at butts became standard illustrations. They are repeated by Sir Thomas Raymond in Bessey v. Olliot, by Sir William Blackstone in the famous squib case (a squib is a small firework), and by other judges, and they have become familiar through the textbooks. Sir Thomas Raymond, in that case, also repeats the thought and almost the words of Justice Littleton quoted above, and goes on: "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." 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: "If the injury were received from the personal act of another, it was deemed sufficient to make it trespass"; or, in the more often quoted words of Justice Grose 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 unnecessary.
In spite of all the arguments that may be urged for the rule that a man acts at his peril, however, it has been rejected by very eminent courts, even under the old forms of action. Given this, and given too that since the old forms were abolished the allegation of negligence has spread from the action on the case to all the ordinary declarations in tort that do not allege intent, many lawyers would probably be surprised that anyone should think the present discussion worth the trouble. That is the natural impression to be drawn from daily practice. But even if the doctrine we are considering had no followers left, which is not the case, it would be well to have something more than daily practice to support our views on so fundamental a question. It seems to me, at least, that the true principle is far from being clearly grasped by all who are interested in it, and that it can be reached only after a careful analysis of what has been thought so far. It might be thought enough to cite the decisions against the rule of absolute responsibility, and to show that such a rule is inconsistent with accepted doctrines and with sound policy. But we may go further with profit, and ask whether there are not strong grounds for thinking that the common law has never known such a rule, except in that period of dry precedent so often found midway between a creative age and a period when philosophy begins to dissolve and remake it. To those who, unlike most modern practitioners, still hold to the strict doctrine, I would say once more that there are weighty decisions against it; and that if those decisions were an innovation, the fact that it was made by judges like Chief Justice Shaw of Massachusetts goes far to prove that the change was wise. Having said that, I think I may assert that a little reflection will show the change was required not only by policy but by consistency. I will begin with consistency.
The same reasoning that would make a man answerable in trespass for all damage to another by force resulting directly from his own act, regardless of negligence or intent, would make him answerable in case for the same kind of damage resulting in the same way from the act of his servant in the course of the servant's employment. The discussions of the company's negligence in many railway cases would then be wholly out of place. There is, to be sure, a contract that would make the company liable for negligence, but that contract cannot be taken to reduce any liability that would otherwise exist for a trespass by 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. At least so long as only physical forces, or agents not responsible for themselves, co-operated with the act complained of to produce the result, however unforeseen they were, the argument that would decide against the defendant who accidentally struck the plaintiff while lifting a stick in necessary self-defense would require a decision against him in every case where his act was a factor in the harm. The distinction between a direct application of force and causing damage indirectly, as a more remote consequence of one's act, may decide whether the form of action should be trespass or case. But it does not touch the theory of responsibility, if that theory is that a man acts at his peril.
As was said at the outset, if the strict liability is to be kept at all, it must be kept throughout. No principle can be stated that would keep the strict liability in trespass while abandoning it in case. It cannot be said that trespass is for acts alone, and case for the consequences of those acts. All actions of trespass are for the 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 events that it sets going, or steers toward the plaintiff's harm, is no part of it, and very often a long train of such events comes in between. 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 elementary writers delight in pointing out what a vast series of physical changes must take place before the harm is done. Suppose that, instead of firing a pistol, he picks up a hose that is spraying water on the sidewalk and turns it on the plaintiff. He does not even set in motion the physical causes that must work together with his act to make a battery. And not only natural causes but a living being may come between the act and its effect. Gibbons v. Pepper decided that there was no battery when a man's horse was frightened, by accident or by a third person, and ran away with him and ran over the plaintiff; and it drew the distinction that if the rider, by spurring, caused the accident, then he is guilty. In Scott v. Shepherd, the squib case already mentioned, trespass was upheld against a man who had thrown a lit squib into a crowd, where it was tossed from hand to hand in self-defense until it burst and injured the plaintiff. Here even human agents were part of the chain between the defendant's act and the result, although the court treated them as more or less automatic in order to reach its decision.
Now I repeat that if principle requires us to hold a man liable in trespass when his act has brought force to bear on another through a fairly short train of intervening causes, even though he 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 traced to the rider's act of spurring, why is it not a tort in every case, as was argued in Vincent v. Stinehour, since it can always be traced, more remotely, to his act of mounting the horse and taking it out?
Why is a man not responsible for the consequences of an act that is innocent in its direct and obvious effects, when those consequences would not have followed but for a series of extraordinary, though natural, events coming in between? 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. The English judges seem to admit this even on the question whether leaving dry trimmings by the side of a railroad in hot weather, and then sending an engine over the track, are negligent acts—that is, a ground of liability: the consequences that might reasonably have been anticipated are material. Yet these are acts that, in the circumstances, can hardly be called innocent in their natural and obvious effects. The same doctrine has been applied to acts in violation of a statute that could not reasonably have been expected to lead to the result complained of.
Footnote: Many American cases could be cited that carry the doctrine further. But I wish to lay down no proposition that admits of controversy, and it is enough for present purposes that, in the words of an old case, if a man does a lawful act that afterwards becomes unlawful, it is damnum sine injuria—damage without legal wrong. I purposely leave aside any discussion of the true rule of damages once it is settled that a wrong has been done. The text is concerned only with the tests by which it is decided whether a wrong has been done.
But there is no difference in principle between the case where a natural cause or physical factor comes in after the act, in some way that could not be foreseen, and turns what seemed innocent into harm, and the case where such a cause or factor is already present, unknown, at the time of the act—as, for that matter, it was in the English cases cited. If a man is excused in the one case because he is not to blame, he must be excused in the other. The distinction drawn in Gibbons v. Pepper is not between results that are and results that are not the consequences of the defendant's acts. It is between consequences he was bound, as a reasonable man, to contemplate, and those he was not. Hard spurring is so much more likely to lead to harm than merely riding a horse in the street that the court thought the defendant would be bound to look out for the consequences of the one, while it would not hold him liable for those that came merely from the other; for the chance 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 crowded place to be broken in, 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-defense: there is no difference between hitting a person standing behind you 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, in the circumstances, in the one case to have known, and in the other to have anticipated, that the person was so close. In either case there is missing the only element that distinguishes voluntary acts from spasmodic muscular contractions as a ground of liability. In neither, 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 that 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 relative to a given human being, anything is an accident which he could not fairly have been expected to contemplate as possible, and therefore to avoid. In the words 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 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." If this were not so, any act would be enough, however remote, that set in motion or opened the door to a chain of physical events ending in damage—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. Indeed, why need the defendant have acted at all? Why is it not enough that his mere existence has been at the plaintiff's expense? The requirement of an act is the requirement that the defendant should have made a choice. But the only possible purpose of bringing in this moral element is to make the power of avoiding the harm complained of a condition of liability. And there is no such power where the harm cannot be foreseen. Here we reach the argument from policy, and so I shall put off 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 particular act—the term act implies a choice—but he must act somehow. Furthermore, the public generally profits by individual activity. Since action cannot be avoided, and since it tends to the public good, there is obviously no sound policy in throwing the risk of what is at once desirable and inevitable upon the man who acts. The state might conceivably make itself a mutual insurance company against accidents, and spread the burden of its citizens' mishaps among all its members. There might be a pension for the paralyzed, and state aid for those who suffered in person or property from storms or wild beasts. As between individuals, it might adopt the mutual insurance principle pro tanto—to that extent—and divide the damages when both parties were at fault, as admiralty does under its rule of splitting the loss in a collision; or it might throw all loss upon the actor regardless of fault. The state does none of these things, however, and the prevailing view is that its cumbersome and expensive machinery ought not to be set in motion unless some clear benefit is to be gained by disturbing the status quo. State interference is an evil, where it cannot be shown to be a good. Universal insurance, if people want it, can be provided better and more cheaply by private enterprise. An attempt to redistribute losses simply on the ground that they resulted from the defendant's act would be open to all these objections. It would also, as I hope the preceding discussion has shown, be open to the still graver one of offending the sense of justice. Unless my act is of a kind 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 if I had fallen upon him in a fit, or to compel me to insure him against lightning.
I must now return to the conclusions drawn from innocent trespasses upon land and from conversions—the wrongful dealing with another man's goods as if they were one's own—and to the supposed analogy between those cases and trespasses against the person. Otherwise the law concerning the latter might be thought to sit between two contradictory principles, each driving with equal force to the opposite conclusion from the other.
Take first the case of a trespass upon land that does 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 meddle with a certain thing in a certain way, and it is exactly that intended meddling for which he is sued. But if he accidentally hits a stranger as he raises his staff in self-defense, the fact that is the heart 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 a man is sued not for meddling with property, but for meddling with the plaintiff's property. On that view, in the cases supposed, just as much as in that of the accidental blow, the defendant is ignorant of one of the facts that make up the whole situation, and which must be present to make his action wrong. He does not know, that is, that the true owner has or claims any interest in the property in question. And so 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 lessens the value of property by intentional damage knows that it belongs to somebody. If he thinks it belongs to himself, he expects whatever harm he does to come out of his own pocket. It would be odd if he were to escape 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 whose acts happen to lead to harm, as a consequence that could not have been foreseen, must bear it.
Next, suppose the act complained of is an exercise of control over the plaintiff's property, such as a merely technical trespass or a conversion. If the defendant thought the property belonged to himself, there seems to be no abstract injustice in requiring him to know the limits of his own titles. If he thought it belonged to someone else, there is none in holding him bound to get proof of title before acting. Consider, too, what the defendant's liability amounts to when the act—whether an entry upon land or a conversion of goods—has done no damage to the property, and the thing has come back into the true owner's hands. The sum recovered is merely nominal, and the payment is nothing more than a formal acknowledgment of the owner's title. Considering how prescription and the statutes of limitation can turn repeated acts of control into ownership, that is no more than right. All appearance of injustice disappears when the defendant is allowed to escape the costs of a lawsuit by a tender—an offer of payment made in advance—or in some other way.
But suppose the property has not come back into the true owner's hands. If the thing remains with 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 (the action for the value of goods wrongfully converted) or in assumpsit (the action upon a promise) as it would have been to compel him to surrender the thing. But whether the defendant has afterward paid the proceeds of the sale of a chattel over to a third person cannot affect the rights of the chattel's true owner. Take the supposed case of an auctioneer. If he had paid the true owner, that would have been an answer to the claim of his bailor, the man who gave him the goods to sell. If he has paid his bailor instead, he has paid someone he was not bound to pay, and no general principle requires that this should be held to take away the plaintiff's right.
There is another point bearing on the argument that the law of trespasses upon property establishes a general principle. Whether the defendant knew of the plaintiff's title is likely to lie entirely in his own breast, and so hardly admits of satisfactory proof. Indeed, in many cases it cannot have been open to evidence at all at the time the law was settled, before the parties to a suit were allowed to testify. So in Basely v. Clarkson, an action of trespass quare clausum, the defense was that the defendant, in mowing his own land, had 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 enough 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 matter. It will be noticed, further, that any general argument from the law of trespass upon land to the law governing trespass against the person is shown to be misleading by the law as to cattle. The owner is bound at his peril to keep them off his neighbor's land, but he is not bound at his peril in every case to keep them from injuring his neighbor's person.
Footnote: Compare the rule as to cattle in the Year Books, which is stated later in this Lecture.
The objections to such a decision as the one supposed in the case of the auctioneer do not rest on the general theory of liability. They spring entirely from the special needs of commerce. It does not become unjust to hold a person liable for unauthorized meddling with another's property until there arises the practical necessity for rapid dealing. But where that 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 with production than with exchange, is hardly consistent with the requirements of modern business. Even when the rules 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 decided long ago 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—no one can transfer to another a greater right than he has himself—must give way in mercantile dealings to the rule possession vaut titre, possession is as good as title. In later times, as markets overt (the open public markets where a buyer in good faith got a good title) have lost their importance, the Factors' Acts and their successive amendments, which protect those who deal in good faith with agents entrusted with goods, have moved more and more in the direction of adopting the Continental doctrine.
Footnote: As to the historical origin of the rule that possession is as good as title, compare Lecture V.
I must preface the argument from precedent by recalling what was said in the first Lecture about early forms of liability, and especially about the appeals. It was shown there that the appeals de pace et plagis—of breach of the peace and wounding—and the appeals 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.
The words contra pacem, "against the peace," in the writ of trespass were no doubt put there to lay a foundation for the king's jurisdiction over the case. But there seems to be no reason to give a similar purpose to vi et armis, "with force and arms," or cum vi sua, "with his force," as it was often put. Glanvill says that wounds are within the sheriff's jurisdiction unless the accuser adds a charge of breach of the king's peace. Yet the wounds are given with force and arms just as much in the one case as in the other. Bracton says that the lesser wrongs he describes belong to the king's jurisdiction "because they are sometimes against the peace of our lord the king"—while, as has been observed, they were supposed always to be committed intentionally. It might even be inferred that the allegation "against the peace" was originally material, and it will be remembered that trespasses once carried the liability to pay a fine to the king.
If it is true that trespass was originally confined to intentional wrongs, there is hardly any need to consider the argument drawn from the scope of the general issue. In form, the general issue was a softening of the strict word-for-word denial (de verbo in verbum) of the ancient procedure, to which the inquest granted by the king's writ was unknown. The strict form seems to have lasted in England for some time after trial of the issue by recognition—by a sworn body of neighbors—was introduced. When a recognition was granted, the inquest was, of course, competent only to speak to the facts, as has been said above. And when the general issue was introduced, trespass was still confined to intentional wrongs.
Footnote: An example of the year 1195 will be found in Mr. Bigelow's very interesting and valuable Placita Anglo-Normanica. The suit was by way of appeal; the cause of action, a felonious trespass.
We may now take up the authorities. It will be remembered that the earlier precedents date from a time when the assize and the jurata had not yet given way to the modern jury. Those bodies spoke from their own knowledge, either to an issue defined by the writ or to certain familiar questions of fact arising in the trial of a case. They did not hear the whole case upon evidence brought before them. Their function was narrower than the one the jury has since gained, and so it naturally happened that, once they had declared what the defendant had done, the judges laid down the standard by which those acts were to be measured without their help. Hence the question in the Year Books is not a loose, general inquiry of the jury whether they think the alleged trespasser was negligent on whatever facts they may find. It is a well-defined issue of law, to be decided by the court: whether certain acts set out upon the record are a ground of liability. It is possible that the judges 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, with no mention of neglect, to the conclusion that any act by which another was damaged will make the actor liable. But a more exact scrutiny of the early books will show that liability in general, then as later, was founded on the tribunal's opinion that the defendant ought to have acted otherwise—in other words, that he was to blame.
Returning first to the case of the thorns in the Year Book, it will be seen that the falling of the thorns into the plaintiff's close, although a result the defendant did not wish, was in no other sense against his will. When he cut the thorns, he did an act that obviously and necessarily would have that consequence, and he must be taken to have foreseen it and not to have prevented it. Chief Justice Choke 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 judges treat the unlawfulness of the entry upon the plaintiff's land as following from the unlawfulness of dropping the thorns there. Choke admits that if the thorns or a tree had been blown over onto the plaintiff's land, the defendant might have entered to get them. Chief Justice Crew says of this case, in Millen v. Fawdry, 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 made by counsel in argument may be left to one side, although Brian, who was one of them, is quoted and mistaken for one of the judges by Sir William Blackstone in Scott v. Shepherd.
The principal authorities are the shooting cases. Since shooting is an extra-hazardous act, it would not be surprising if men were held to 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 precaution may be drawn. In Weaver v. Ward, the defendant pleaded that he and the plaintiff were skirmishing in a trainband—a company of citizen militia at drill—and that in discharging his musket he wounded the plaintiff by accident and misfortune, and against his own will. On demurrer, the court said 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 passages quoted above in favor of the strict doctrine—from Sir Thomas 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 thought it was not a trespass to ward off personal danger by instantly tossing away a squib, a lighted firework, that someone else had thrown onto one's market stall, even though this gave the squib a new motion and the plaintiff's eye was put out as a result. The last case cited above, in stating the arguments for absolute responsibility, was Leame v. Bray. The question there was whether the action, for running down the plaintiff, should have been case rather than trespass. The defendant objected to trespass on the ground that the injury happened through his neglect but was not done willfully. So there was no question before the court of absolute responsibility for one's acts, since negligence was admitted; and the language used is all aimed simply at the proposition that the damage need not have been done intentionally.
In Wakeman v. Robinson, 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 caused by an immediate act of the defendant, it did not matter whether the act was willful or accidental. On a motion for a new trial, Chief Justice Dallas 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 not have fitted the defendant's plea, which was the general issue; but the pleadings were not referred to, and the doctrine is believed to be sound.
In America there have been several decisions on the point. In Brown v. Kendall, Chief Justice Shaw settled the question for Massachusetts. That was an action of trespass for assault and battery. 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, injuring him severely. The case was stronger for the plaintiff than if the defendant had been acting in self-defense. But the court held that although the defendant was under no duty to separate the dogs, still, if he was doing a lawful act, he was not liable unless he fell short of the care that men of ordinary prudence would use under the circumstances; and that the burden was on the plaintiff to prove the lack of such care.
In such a matter no authority deserves more respect than that of Chief Justice Shaw, for the strength of that great judge lay in an accurate appreciation of the needs of the community whose officer he was. Some, indeed many, English judges could be named who have surpassed him in exact technical knowledge. But few have lived who were his equals in understanding the grounds of public policy to which all laws must ultimately be referred. It was this which made him, in the words of the late Judge Curtis, the greatest magistrate this country has produced.
Brown v. Kendall has been followed in Connecticut, in a case where a man fired a pistol—in lawful self-defense, as he claimed—and hit a bystander. The court was strongly of the opinion that the defendant was not answerable on the general principles of trespass unless he had failed to use such care as was practicable under the circumstances. The foundation of liability in trespass, as well as in case, was said to be negligence. The Supreme Court of the United States has given its approval to the same doctrine. The language of Harvey v. Dunlop, Chief Justice Nelson's case, has been quoted already, and there is a case in Vermont that tends in the same direction.
Supposing it now conceded that the general idea on 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—which is what Austin's teaching would come to in practice. The words of Justice Rede, quoted earlier from the Year Book, give a sufficient answer: "In trespass the intent" (we may say, more broadly, the defendant's state of mind) "cannot be construed." Suppose a defendant were allowed to testify that, before acting, he had considered carefully what a prudent man would do under the circumstances, and, having formed the best judgment he could, had acted on it. If his story were believed, it would be conclusive against his negligence, judged by a moral standard that took his personal characteristics into account. But supposing any such evidence had 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.
Some middle point must be found between the horns of this dilemma.
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 inner 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 the impossibility of finding out his knowledge of law—and that 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, and is always having accidents and hurting himself or his neighbors, no doubt his inborn 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 small 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 that level in those gifts, it is our misfortune; so much 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 only when he fails to use the foresight of which he is capable, or uses it with evil intent, that he is answerable for the consequences.
There are exceptions to the principle that every man is presumed to have ordinary capacity to avoid harming his neighbors, and they illustrate both the rule and the moral basis of liability in general. When a man has a distinct defect of such a kind that everyone 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. No doubt he is bound to consider his infirmity in governing his actions. But if he is properly in a certain situation, his failure to take precautions that require 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, where he is the plaintiff, a very young child is bound only to take the precautions of which a child is capable; and the same principle may be cautiously applied where he is the defendant. Insanity is a harder 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 moved by the motives, that the circumstances demand. But if insanity of a pronounced kind exists, plainly making the sufferer incapable of complying with the rule he has broken, good sense would require it to be admitted as an excuse.
Putting together the qualification just established and the general proposition laid down before it, it will now be assumed as follows. On the one hand, the law presumes or requires a man to have ordinary capacity to avoid harming his neighbors, unless a clear and manifest incapacity is shown. On the other hand, it does not in general hold him liable for unintentional injury unless, having that capacity, he might and ought to have foreseen the danger—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 the law has to say on the matter; and, which is the same question in another form, by whom the test is to be applied.
Although the grounds of legal liability are moral to the extent just explained, it must be borne in mind that law works only within the sphere of the senses. If the external phenomena—the visible acts and omissions—are such as the law 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. However much the law may take moral considerations into account, it does so only for the purpose of drawing a line between the bodily motions and rests it permits and those 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 that 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 by accident, or at the whim of any body of men. The standard, that is, 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 approval or blame which a particular twelve men may feel should be the test. They are supposed to leave their own peculiarities to 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 guilt or innocence is the supposed test—is a constant, and his conduct under given circumstances is in theory 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, then, 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 put these standards into words, at least to some extent—and that doing so must in the end 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 use under the circumstances, ought to be continually giving way to the specific rule that he was bound to use this or that precaution under these or those circumstances. The standard the defendant was bound to meet was a standard of specific acts or omissions, with reference to the specific circumstances in which he found himself. If, in the whole field of unintentional wrongs, the courts never got further than the question of negligence, and left every case to the jury without rudder or compass, they would simply be confessing that they could not state a very large part of the law which they required the defendant to know. And they would be asserting, 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 used by a prudent man a precise test of specific acts or omissions. The fundamental thought is still the same: the way prescribed is the way in which prudent men are in the habit of acting, or else it is a way laid down for cases where prudent men might otherwise be in doubt.
It will be observed that the external tests of liability I am about to mention illustrate the tendency of the law of tort to become more and more concrete, by judicial decision and by statute; but their existence does not interfere with the general doctrine I have 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 that 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 acted, then he is required to conform to an objective standard at his peril, even in that case. When a more exact and specific rule has been reached, 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 this process of specification will be useful. The laws of Alfred provide for the case of a man who runs himself onto a spear that another man is carrying, and 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." In other words, the lawgiver did not ask the vague question whether the spear-carrier was careless. He named the exact position of the point.
The rule of the road, and the sailing rules that Congress adopted from England, are modern examples of statutes of the same kind. The rule of the road has narrowed the question from the vague one, Was the party negligent? to the precise one, Was he on the right or the left of the road?
To avoid a possible misunderstanding, I should add that this question does not, of course, decide the question of liability in every case and under all circumstances. A plaintiff may have been on the wrong side of the road, just as he may have been negligent, and yet the defendant's conduct may still have been unjustifiable and a ground of liability. And no doubt a defendant could, under some circumstances, justify or excuse being on the wrong side. The difference between alleging that a defendant was on the wrong side of the road and alleging that he was negligent is this. The first is an allegation of facts, which will be a ground of liability unless the other side excuses them by alleging further facts. The second is an allegation that involves a conclusion of law, and denies in advance that any excuse exists. Whether the first allegation ought to be enough, and whether proving the fact ought to shift the burden of proof to the other side, are questions that belong to the theory of pleading and evidence, and they could be answered either way consistently with analogy. I should have no difficulty in saying that an 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, and 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 that has been illustrated from the statute book ought also to be taking place as judicial decisions grow. That this should happen agrees with the past history of the law. I have already suggested that in the days of the assize and the jurata, the court decided, in all ordinary cases, whether the facts amounted to a ground of liability. A question of negligence might, no doubt, have gone to the jury. Common sense and common knowledge are as often enough to decide whether proper care has been taken of an animal as they are to say whether A or B owns it. The cases that arose first were not of a kind to invite analysis, and for a long time negligence was used as a roughly simple element before anyone felt the need, or saw the possibility, of analyzing it. Still, when an issue of this sort turns up, the dispute is more about what the defendant did or failed to do than about the standard of conduct. The division of work between court and jury does not come into question until the parties disagree about the standard of conduct.
Negligence, like ownership, is a complex idea. Ownership implies that certain facts exist, and also implies the consequence the law attaches to those facts—protection against all the world. In the same way, negligence implies that certain facts exist (conduct), and also the consequence the law attaches to those facts (liability). In most cases the question is about the facts, and only occasionally does one arise about the consequence.
Footnote: In one of the Year Book cases the plea was that the defendant had performed the cure as well as he knew how, and denied that the horse died for want of his care. The opening of that plea, at least, seems to treat negligence as meaning the actual state of the party's mind.
The reader will have 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 it is said that the facts making up an excuse, and showing that the defendant was free from negligence, should have been set out on the record so that the court might judge them. A similar requirement was laid down for the defense of probable cause—reasonable grounds for bringing a charge—in an action for malicious prosecution, the action against a man who has set the criminal law going against another without such grounds. To this day the question of probable cause is always decided by the court. Further evidence will be found in what follows.
There is, however, an important consideration that I have not yet mentioned. It is certainly possible that those who make the law may think it wise, in some cases, to set the mark higher than the point, fixed by common practice, at which blameworthiness begins. For instance, in Morris v. Platt the court declared in the strongest terms that negligence is, in general, the foundation of liability for accidental trespasses. Yet it hinted that, if it had to decide the point, it might hold a defendant to a stricter rule where the damage was done by a pistol, in view of the danger to the public from the growing habit of carrying deadly weapons.
Again, it might well seem that entering a man's house to bring him a present, or to ask after his health when he was ill, was a harmless and rather praiseworthy act, even though crossing the owner's boundary was intentional. No one supposes that an action would lie today for such a thing, unless the visitor had been forbidden the house. Yet in the time of Henry VIII it was said to be actionable if done without permission, "for then under that color my enemy might be in my house and kill me." There is a clear case where public policy sets a standard of outward acts without regard to fault in any sense. In the same way, policy established exceptions to the general rule against entering another's land: as in the instances put by Chief Justice Choke in the Year Book, of a tree blown over onto it, or of a highway become impassable, or of entering to keep the peace.
Another example may perhaps be found in the shape that modern times have given to the liability for animals, and in the principle derived from it in Rylands v. Fletcher: that when a person brings onto his land, 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, he is prima facie—on the face of it, unless he can show otherwise—answerable for all the damage that is the natural consequence of its escape. Cases of this sort do not rest on the notion that it is wrong to keep cattle, or to have a reservoir of water, as might have been argued with more plausibility when only fierce and useless animals were in question. It may even be very much for the public good that the dangerous accumulation should be made. (That consideration might affect the decision in some instances, and differently in different jurisdictions.) But since there is a limit to how finely a trial can inquire into things, it may be thought that the safest way to secure care is to throw the risk on 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 without regard to fault, and requirements meant to put into words the conduct of a prudent man.
I showed 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 was said there, it is evident that the early discussions turn on the general question whether the owner is or is not to blame. But they do not stop there. They go on to draw practical distinctions based on common experience. Thus, a defendant chased sheep off his land with a dog, and as soon as the sheep were off he called in his dog; but the dog chased them on into the neighboring 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."
Footnote: In one report of this case, after the court's opinion is given as in the text, it is said that judgment was nevertheless entered for the plaintiff. That contradicts the earlier statement in the same book, and the other reports; but the principle was at all events admitted. For its limit, see Read v. Edwards.
It was lawful, in ploughing, to turn the horses on a neighbor's land; and if, while turning, the beasts took a mouthful of grass, or the plough tore up the soil, against the driver's will, he had a good justification, because the law recognizes that a man cannot at every instant govern his animals as he wishes. So it was said that if a man is driving cattle through a town, and one of them goes into another man's house, and he follows it in, trespass does not lie for this. So, too, Justice Doderidge said in the same case that if deer come onto my land out of the forest and I chase them with dogs, it is excuse enough for me to wind my horn to call back the dogs, because by this the warden of the forest is given notice that a deer is being chased.
Footnote: This is a further illustration of the very practical grounds on which the law of trespass was settled.
The very case of Mason v. Keeling, which I 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. As to animals not then treated as property, which were mainly 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." If the animals "are such as are naturally mischievous in their kind, he shall answer for hurt done by them, without any notice." This second principle has been applied to the case of a bear. It also amply accounts for the liability of the owner of animals like horses and oxen for their trespasses on land, although, as we have seen, that liability was at one time thought to rest on his ownership. It is said to be the universal nature of cattle to stray, and, when they stray into 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. If, as I have suggested, the rule had a different historical origin, that does not matter.
Following the same line of thought, the owner of cattle is not held absolutely answerable for all the damage they may do to a person. According to Lord Holt in the opinion just quoted, 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."
Perhaps the most striking authority for the view that the judge's duties are not at an end when the question of negligence is reached is found in the discussions of the law of bailment—the law of goods held by one person for another. Consider the judgment in Coggs v. Bernard, the treatises of Sir William Jones and of Story, and Kent's chapter on the subject. They are so many attempts to state the bailee's duty specifically, according to the nature of the bailment and of the thing bailed. Those attempts, to be sure, did not succeed. That was partly because they tried to graft onto the native stock a branch of the Roman law too large to survive the operation, but more especially because the distinctions they drew were purely qualitative, and therefore useless when dealing with a jury. To instruct a jury that they must find the defendant guilty of gross negligence before he can be held liable is open to the reproach that, for such a body, the word "gross" is only a term of abuse. But it would not be so with a judge sitting in admiralty, the court for maritime cases, without a jury. The Roman law and the Supreme Court of the United States agree that the word means something. Successful or not, it is enough for the present argument that the attempt has been made.
The principles of substantive law that the courts have established have, I believe, been somewhat obscured by appearing most often in the form of rulings on the sufficiency of evidence. When a judge rules that there is no evidence of negligence, he does something more than he does in an ordinary ruling that there is no evidence of a fact. He rules that the acts or omissions proved, or in question, do not make 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., the plaintiff slipped on the defendant's stairs and was badly hurt. He slipped because the brass edging on the stairs had been worn smooth by the people walking over it, and a builder testified that in his opinion the staircase was unsafe for that reason and because there was no hand-rail. Nothing contradicted this except that great numbers of people had used the stairs and no accident had happened there, and the plaintiff won a verdict. The court set the verdict aside and ordered a nonsuit—a judgment putting the plaintiff out of court because he has not made a case. In form, the ruling was that there was no evidence of negligence to go to the jury. But this was plainly the same as saying, and did in fact mean, that the railroad company had done all it was bound to do in keeping up such a staircase as the plaintiff had proved. A hundred other equally concrete instances will be found in the textbooks.
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 be ruling that those acts or omissions were a ground of liability, or barred a recovery, as the case might be. Thus it is said to be actionable negligence to let a house as a dwelling knowing that it is so infected with smallpox as to be dangerous to health, and to conceal that knowledge. To "explain" the acts or omissions in such a case would mean proving different conduct from the conduct ruled on, or showing that they were not, legally 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 that 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 in speaking of such cases as presenting mixed questions of law and fact. No doubt, as I said above, the allegation that the defendant has been guilty of negligence is a complex one. It says, first, that he did or failed to do certain things; and second, that his conduct so alleged does not come up to the legal standard. So long as the dispute is only about the first half, the whole complex allegation is plain matter for the jury without special instructions, just as a question of ownership would be where the only dispute was about the fact on which the legal conclusion rested. But when a dispute arises about the second half, the question whether court or jury ought to judge the defendant's conduct is wholly unaffected by the accident of whether there is or is not also a dispute about what that conduct was. If there is such a dispute, it is entirely possible to give a series of hypothetical instructions fitted to every state of facts the jury may find. If there is no such dispute, the court may still take the jury's opinion on the standard. The problem is to explain the relative work of court and jury with regard to the standard.
When a case arises in which the standard of conduct, pure and simple, is put to the jury, the explanation is plain. The court has no clear views of public policy that apply to the matter, and so it draws the rule to be applied from daily experience, just as, we have agreed, the great body of the law of tort has been drawn. But the court further feels that it does not itself have enough practical experience to lay down the rule intelligently. It believes that twelve men taken from the practical part of the community can help its judgment. Therefore it aids its conscience by taking the opinion of the jury.
But suppose a state of facts that is often repeated in practice. Are we to imagine that the court will go on leaving the standard to the jury forever? Is it not plain, on the contrary, that if the jury is on the whole as fair a tribunal as it is said to be, the lesson to be had 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 swinging back and forth, and will see that it must make up its own mind. There is no reason why any other such question should not be settled, as well as the question of liability for stairs with smooth strips of brass on their edges. The exceptions would be found mainly where the standard was changing rapidly, as, for instance, in some questions of medical treatment.
Footnote: In the smallpox case, while the court ruled on the defendant's conduct as I have described, it held that whether the plaintiff was guilty of contributory negligence—a want of care on his own part that helped bring on the harm—in not having his children vaccinated was "a question of fact, and was properly left to the jury."
If this is the right conclusion in plain cases, further consequences follow. Facts do not often repeat themselves exactly in practice, but cases differing from one another only a little do. A judge who has long sat at nisi prius—presiding over jury trials—ought gradually to gain a fund of experience that lets him represent the common sense of the community in ordinary cases far better than an average jury. He should be able to lead them and to instruct them in detail, even where he thinks it best, on the whole, to take their opinion. Furthermore, the range of cases in which he can rule without taking their opinion at all should be continually growing.
It has often been said that negligence is purely a matter of fact, or that, once 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. But I believe that the courts, when they lay down this broad proposition, are thinking of cases where the conduct to be judged is not proved directly, and the main or only question is what that conduct was—not what standard shall be applied to it once it is established.
Most cases that go to the jury on a ruling that there is evidence from which they may find negligence go to them mainly because of a doubt about the conduct, not about the standard. Take the case where the fact proved is an event such as a brick dropping from a railway bridge onto the plaintiff on the highway below. Before there can be any question about the standard of conduct, it must be inferred that the brick fell not because of a sudden action of the weather, but because of a gradual falling into disrepair that the defendant could physically have prevented.
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. It will be seen that in each of these well-known cases the court assumed a rule that would make the defendant liable if his conduct was what the evidence tended to prove. When there is no question about the conduct established by the evidence, as in 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.
The main argument urged for the view that a wider function belongs to the jury as a matter of right is the need to keep our standards always in line with experience. No doubt the general foundation of legal liability in blameworthiness, as measured by the existing average standards of the community, should always be kept in mind, so that whatever concrete rules are laid down from time to time are kept in line with daily life. No doubt this agreement with daily life is the practical justification for requiring a man to know the civil law, just as the fact that crimes are generally also sins is one of the practical justifications for requiring him to know the criminal law. But these considerations lead only to the conclusion that precedents should be overruled when they become inconsistent with present conditions; and this has generally happened, except in the interpretation 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 special importance in this country, or at least in States where the law stands as it does in Massachusetts. In England, the judges at nisi prius freely express their opinions on the value and weight of the evidence, and the judges in banc—the full court, sitting to hear questions of law—constantly draw inferences of fact with the consent of the parties. So fine distinctions about the province of court and jury are not of the first necessity there. But when judges are forbidden by statute to charge the jury on matters of fact, and when the full court will never hear a case that calls for inferences of fact, it becomes vitally important to understand this: when standards of conduct are left to the jury, that is a temporary surrender of a judicial function, which the court may take back at any moment, in any case, when it feels competent to do so. If this were not so, then 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 held in this Lecture that the courts have been very slow to take questions of negligence away from the jury, without distinguishing carefully whether the doubt concerned the facts or the standard to be applied. Legal divisions, like natural ones, however clear in their general outline, will be found on close scrutiny to end in a penumbra, a debatable land. This is the region of the jury, and only cases falling on this doubtful border are likely to be fought far through the courts. 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 cases cluster around the opposite poles and begin to approach each other, the distinction becomes harder to trace. The decisions 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—a line so far arbitrary that it might equally well have been drawn a little farther to one side or the other, but which must have been drawn somewhere in the neighborhood of where it falls.
In this way exact distinctions have been worked out on questions where the elements to be considered are few: for instance, what is a reasonable time for presenting negotiable paper (checks, notes and bills of exchange) for payment; or what is a difference in kind and what only a difference in quality; or the rule against perpetuities, which limits how far into the future a gift of property may tie it up.
An example of decisions approaching each other from opposite poles, with the jury at work in the middle, is found in the Massachusetts rulings. If a child of two years and four months is needlessly sent alone across and down a street in a large city, he cannot recover for an injury negligently done to him. To allow a boy of eight to be out alone is not necessarily negligent. And the effect of allowing a boy of ten to be out after dark is for the jury. To these one may add a statement, which may be ventured without authority, that such permission given to a young man of twenty of ordinary intelligence has no effect whatever.
Take again the English law of ancient lights—the right of a house that has long enjoyed the light through its windows not to have that light blocked by a neighbor's building. To be actionable, an obstruction must be substantial. Under ordinary circumstances, putting up a structure a hundred yards away 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 by a jury beyond those facts. In doubtful cases in between, the question whether the interference was substantial has been left to the jury. But because the elements are few and permanent, the courts have shown an inclination 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 windows entitled to the light. And although this attempt to work out an exact line calls for much caution, it is entirely philosophical in spirit.
The same principle applies to negligence. If the whole evidence in a case was that a man in full command of his senses and his wits stood on a railway track, watching an approaching engine until it ran him down, no judge would leave it to the jury to say whether his conduct was prudent. If the whole evidence was that he tried to cross a level track, visible for half a mile each way, on which no engine was in sight, no court would allow a jury to find negligence. Between these extremes are cases that would go to the jury. But it is obvious that the limit of safety in such cases, supposing no other elements were present, could be fixed almost to a foot by mathematical calculation.
The trouble with many cases of negligence is that they are of a kind that does not recur often enough for any one judge to profit by long experience with juries and lay down rules, and that their elements are so complex that the courts are glad to leave the whole matter in a lump for the jury to decide.
I reserve the relation between negligent and other torts for the next Lecture.
The next subjects to be considered are fraud, malice, and intent. In discussing unintentional wrongs, the greatest difficulty to be overcome was the doctrine that a man always acts at his peril. In what follows, the difficulty runs the other way. It will be to prove that actual wickedness—the kind these three words describe—is not an element in the civil wrongs to which they are applied.
It was shown, in dealing with the criminal law, that when we call an act malicious in everyday speech, we mean that harm to another person was intended to come of it, and that the 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 matter, and to have the same consequences as intent with ill will added on top. Carrying the analysis further, intent was found to be made up of two things: foresight of the harm as a consequence, and a desire to bring it about, the desire being thought of as the motive for the act. Of these two, again, only foresight seemed to matter. As a last step, foresight was reduced to its lowest terms. The conclusion was that, subject to certain exceptions which were explained, the general basis of criminal liability was knowledge, at the time of acting, 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 fraudulent, malicious, intentional, and negligent wrongs can thus be brought into a single, philosophically continuous series.
A word of preliminary explanation will be useful. It was shown in the Lecture just referred to that an act, although it always implies intent, is in itself indifferent to the law. An act is a willed, and therefore an intended, coordination of muscular contractions. But the intent that the act necessarily implies stops there. And all muscular motions, or combinations of them, are harmless apart from the circumstances that accompany them, and the act itself does not necessarily imply that those circumstances are present. To strike out with the fist is the same act whether it is done in a desert or in a crowd.
The same considerations which were urged to show that an act alone, by itself, does not and ought not to impose either civil or criminal liability, apply, at least often, to a series of acts—that is, to conduct—even though the series shows a further coordination and a further intent. For instance, to utter a sentence falsely stating that a certain barrel contains No. 1 Mackerel is the same series of acts whether the sentence is spoken in the privacy of one's own room or to another man in the course of a bargain. In either case, to be sure, there is a further intent, beyond the coordination of muscles for a single sound: the intent to assert that a certain barrel has certain contents, which the ordering of the words necessarily shows. But both the series of acts and the intent are in themselves indifferent. They are innocent when spoken in solitude, and they become a ground of liability only when certain accompanying circumstances are shown.
The intent that is meant when we speak of it 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 all the way back to the simple muscular contractions that make up a course of conduct. On the same principle that requires something more than an act followed by damage to make a man liable, we are constantly free to treat a coordinated series of acts as a practically simple element, indifferent in itself, when we ask 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 for repetition, if this is kept in mind in the discussion that follows.
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 these, perhaps, trover may be added.
Deceit is a notion drawn from the moral world, and in its popular sense it plainly implies wickedness. The common-law doctrine about it is generally stated in terms that fit only actual guilt and 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, and intending that the other should believe it and act on it—provided the person addressed does believe 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, arranged so that uttering them implies a knowledge of the meaning 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 that another person is within hearing; still the act has no definite character. The elements that 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. The answer is not difficult. 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 the other party intended to act on it. If the defendant foresaw the consequence of his acts, he is chargeable, whether his motive was a desire to get the other party to act, or simply an unwillingness, for private reasons, to tell 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 or not he in fact foresaw the consequence.
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, makes proof of an intent to induce him to act on it unnecessary, it is admitted that the lesser element is all that is needed in the larger compound. Intent includes knowledge enough for foresight, as has been shown. So when you prove intent you prove knowledge, and intent may often be the easier of the two to prove. But when you prove knowledge you do not prove intent.
It may be said, however, that in such a case as the one supposed, intent is implied or presumed. But this is only propping up a false theory with a fiction. It is very much like saying that consideration—what is given in return for a promise—is presumed for an instrument under seal, a formal document sealed by the party bound. That is merely a way of reconciling the formal theory that every contract must have a consideration with the obvious fact that sealed instruments do not need 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 reason to suspect that the essential element is to be found in that something else, and not in what is said to be presumed from it.
As to the intent required for deceit, we need not stop at the single instance just given. The law goes no further than to require proof either of the intent, or that the other party was justified in inferring such an intention. So the whole meaning of the requirement is this: the natural and manifest tendency of the representation, under the known circumstances, must have been to create the belief that it was made with a view to action, and so to lead to action on the faith of it. What is called the standard of intent is thus really an external standard of conduct under the known circumstances, and the analysis of the criminal law holds good here too.
Nor is this all. The law, pursuing the course of specification explained in the last Lecture, decides what the tendency of representations is in certain cases—for instance, a statement at the time of a sale that a horse is sound; or, in general, any statement of fact which it is known the other party intends to rely on. Beyond these specific rules lies the vague realm of the jury.
The other moral element in deceit is knowledge that the statement was false. Strictly, I am not concerned with this, because everything necessary is done once the elements of risk are reduced to action and knowledge. But it will help the general object of showing that the tendency of the law everywhere is to pass beyond moral standards and reach external ones, if this knowledge of falsehood can be turned into a formula that does not necessarily imply guilt, although of course in fact it is generally accompanied by guilt. The moment we look at it critically, we find the moral side shade away.
The question is, what known circumstances are enough to throw the risk of a statement on the man who makes it, if it leads another man to act and turns out to be untrue? Now, a man may plainly take the risk of his statement by express agreement, or by an implied one which the law reads into his bargain. In legal language, he may warrant its truth; and if it is not true, the law treats it as a fraud just as much when he makes it believing it fully as when he knows it to be 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 deceit at common law, although he thought the horse was only five. The common-law liability for the truth of statements is therefore wider than the sphere of actual moral fraud. But, again, it is generally enough if a representation 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 grounds 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 we have gone through before—it means that the law, applying a general objective standard, decides that if a man makes his statement on those grounds he is liable, whatever the state of his mind, and even though he personally may have been perfectly free from wickedness in making it.
Hence the same reasoning already applied to intent may be applied to knowledge of falsity. Actual knowledge may often be easier to prove than that the evidence was not enough to warrant the statement, and when it is 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—the courts that grew up beside the common-law courts to give relief where the strict common law gave none—have laid down the doctrine in terms so completely detached from the defendant's actual moral condition that they go to the 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."
Perhaps the actual decisions could be reconciled on a narrower principle. But the rule just stated goes so far as to say that in business matters a man makes every statement likely to be acted on at his peril. This seems hard to justify as 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 that would have convinced a wise and prudent man of their truth. The public advantage and necessity of freedom in giving information is strong enough to protect even the slander of a third person. It ought all the more, it seems to me, to protect statements made at the request of the very party who complains of them.
The common law, at any rate, keeps the reference to morality by making fraud the ground on which it proceeds. 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 on a party, then, are these. First, making a statement of facts that purports to be serious. Second, the known presence of another person 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 decided by the courts in some instances; in others the question would no doubt go to the jury on the principles already explained.) Fourth, the falsehood of the statement. This must be known; or else the known evidence about the matter stated must be such as would not warrant belief according to the ordinary course of human experience. (On this point, too, the court may be found to lay down specific rules in some cases.)
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 like this. Malice must exist, but the law presumes it from the mere speaking of the words. You may rebut this presumption of malice by showing that the words were spoken under circumstances that made the communication privileged—that is, protected—as when a lawyer speaks in the necessary course of his argument, or a person answers in good faith an inquiry about the character of a former servant. And then, it is said, the plaintiff may in some cases meet this defense by showing that the words were spoken with actual malice.
All this sounds as if actual intent to cause the damage complained of, if not ill will, were at the bottom of this class of wrongs. Yet it is not so. The word "malice" points, as usual, to an original moral standard. But the rule that malice is presumed on proof of speaking certain words amounts to saying that the outward conduct of speaking those words may be actionable whether or not the damage to the plaintiff was intended. And this falls in with the general theory, because the manifest tendency of slanderous words is to harm the person they are spoken of. Again, the real substance of the defense is not that the damage was not intended—that would be no defense at all. It is 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 spoke were such that the law considered the damage to the plaintiff less important than the benefit of free speech.
It is harder to apply the same analysis to the last stage of the process, but perhaps not impossible. It is said that the plaintiff may meet a case of privilege made out by the defendant by proving actual malice, that is, an actual intent to cause the damage complained of. But how is this actual malice made out? By showing that the defendant knew his statement was false, or that his untrue statements went grossly beyond what the occasion required. Now is it not very plain that the law is looking at something entirely different from the defendant's intent? The fact that the defendant foresaw the damage to the plaintiff, and foresaw it with pleasure, matters no more here than it would where the communication was privileged. The question, again, is entirely one of knowledge, or of some 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 missing. It is in the public interest that people should be free, in certain circumstances, to give the best information they can without fear. But there is no public benefit in having lies told at any time. When a charge is known to be false, or goes beyond what the occasion requires, it is not necessary to make it in order to speak freely. So 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 begins further back here than with deceit, since slander is more universally harmful in its tendency. There must be some accompanying circumstances. At the least, there must be a human being in existence whom the statement points to. There must be another human being within hearing who understands the statement, and the statement must be false. But it is arguable that the presence of a hearer need not be known—just as the falsity of the charge certainly need not be—and that a man must take the risk of even an idle statement being overheard, unless he made it under known circumstances of privilege. It would be no great curtailment of freedom to deny a man immunity for attaching a charge of crime to his neighbor's name, even when he supposes himself alone. But it is not clear that the law would go quite that far.
The next form of liability is comparatively unimportant. I mean the action for malicious prosecution. A man may recover damages against another who, maliciously and without probable cause, has started a criminal prosecution against him on a false charge—or, in some cases, a civil one. The want of probable cause refers, of course, only to the state of the defendant's knowledge, not to his intent. It means that the facts known to the defendant when he began the suit did not amount to probable cause. But the standard applied to what the defendant knew is external to him. The question is not whether he thought the facts amounted to probable cause, but whether the court thinks they did.
Then as to malice. The defendant's conduct consists in starting proceedings on a charge which is in fact false, and which has failed. That is the root of the whole matter. If the charge was true, or if the plaintiff was convicted—even though he may now be able 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 fails. It may readily be admitted that malice did originally mean an evil motive, an actual intent to harm the plaintiff by making a false charge. Here again the legal remedy started from the moral basis. The occasion for it was no doubt similar to the one that gave rise to the old law of conspiracy: a man's enemies would sometimes try to destroy him by setting the criminal law in motion against him. Since it was punishable for several 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. I must fully admit that there is weighty authority for the view 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, on the one side, that the existence of probable cause, believed in, is a justification in spite of malice. It is admitted, on the other, that "it is not enough to show 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." On the one side, malice alone will not make a man liable for starting a groundless prosecution; on the other, his justification depends not on his opinion of the facts but on the court's. 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 matter. Yet that is what malice must mean in this case, if it means anything; for the evil effects of a successful indictment are of course intended by anyone who gets another indicted. I cannot help thinking that a jury would be told that knowledge or belief that the charge was false, at the time it was made, was conclusive evidence of malice. And if so, for reasons that need not be repeated, malice is not the important thing, but the facts known to the defendant.
Nevertheless, it is obviously treading on delicate ground to make it actionable to set the regular processes of the law in motion. So it is, of course, entirely possible to say that the action shall be limited to cases where the charge was brought from improper motives, at least if the defendant thought 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 advanced here that liability should, in a given instance, be confined to actual wrongdoing in the moral sense.
The only other cause of action in which the moral state of the defendant's mind might seem important is conspiracy. The old action of that name was much like malicious prosecution, and no doubt it was originally confined to cases where several persons had conspired to get another indicted from evil motives. But in the modern action on the case in which conspiracy is charged, the allegation as a rule means only that two or more persons were cooperating so closely in their acts that the act of any one was the act of all. Generally speaking, the liability depends not on the cooperating or conspiring, but on the character of the acts done, taking them all as if done by one man, or without asking whether they were done by one person or by several. There may be cases, to be sure, in which the result could not be accomplished, or the offense could not ordinarily be proved, without a combination of several people—for instance, the removal of a teacher by a school board. The conspiracy would not affect such a case except in a practical way. But the question would be raised whether, notwithstanding the board's right to remove the teacher, proof that its members were moved by ill will would make the removal actionable. Policy, it might be said, forbids going behind their judgment. But actual evil motives, together with the absence of grounds, take away this protection; because policy, although it does not require them to take the risk of being right, does require that they judge honestly on the merits.
Other isolated instances like the last might perhaps be found in different parts of the law, in which actual ill will would affect a man's liability for his conduct. Again, in trover for the conversion of another's chattel, where the control exercised over it was slight and ambiguous, 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." But this seems to be no more than a faint shadow of the doctrine explained in connection with larceny, and it needs no further or special discussion. Trover is commonly understood to rest, like larceny, on the plaintiff's being deprived of his property; although in practice every possessor has the action, and, generally speaking, the briefest wrongful withholding of possession is a conversion.
Whether the exceptions are more or fewer, the general purpose of the law of torts is to secure a man compensation for certain forms of harm to his person, reputation, or property at the hands of his neighbors—not because those harms are wrong, but because they are harms. The true explanation of why liability refers to a moral standard, in the sense that has been explained, is not that the law aims at improving men's hearts. It is that the law means to give a man a fair chance to avoid doing the harm before he is held responsible for it. It is meant 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 try to protect 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 the law allows a man to do even though he foresees that harm to another will follow. He may charge a man with a crime if the charge is true. He may set himself up in business where he foresees that the effect of his competition will be to reduce another shopkeeper's trade, perhaps to ruin him. He may put up a building that cuts off another's beautiful view, or he may drain the water under his own ground and thereby drain another man's well; and many other cases might be given.
Since 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 one before tends to this conclusion. If the aim of liability is simply to prevent harm, or to compensate for it, so far as is consistent with avoiding the extreme of making a man answer for accident, then when the law permits the harm to be knowingly inflicted, it would be a strong thing if the presence of malice made any difference to 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, at one extreme, allows certain harms to be inflicted regardless of the moral condition of the person who inflicts them, so, at the other extreme, it may on grounds of policy throw the absolute risk of certain undertakings on the person who engages in them, regardless of blame in any sense. Instances of this kind were mentioned in the last Lecture, and will be referred to again.
Most liabilities in tort lie between these two extremes. They are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of the acts or omissions that were its proximate cause. But as fast as specific rules are worked out in place of the vague reference to the conduct of the average man, they line up alongside other specific rules based on public policy, and the grounds they grew from cease to be visible. So, as will be seen shortly, rules that seem to lie outside blameworthiness in any sense have sometimes been traced to remote fault, while others that started from the general notion of negligence may just as easily be traced to some outside ground of policy.
Apart from the two extremes just mentioned, it is now easy to see how the law generally fixes the point at which a man's conduct begins to be at his own peril. When we understand the principle by which the law of torts fixes that point, we have a common ground of classification, and a key to the whole subject, so far as tradition has not turned the law aside from a consistent theory. It has been made fairly clear from what came before that I find that ground in knowledge of the circumstances accompanying an act or course of conduct which, but for those circumstances, would be indifferent.
But before that test is discussed, it is worth remarking that a possible common ground is reached one step earlier in the descent from malice through intent and foresight. Foresight is a possible common denominator of the wrongs at the two extremes, malice and negligence. The purpose of the law is to prevent harm to a man at the hands of his neighbors, or to secure him compensation for it, so far as is consistent with the other considerations that have been mentioned—excepting, of course, such harm as the law permits to be intentionally inflicted. When a man foresees that harm will result from his conduct, the principle that excuses him for accident no longer applies, and he is liable. But, as has been shown, he is bound to foresee 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 likely to follow.
Accordingly, it would be possible to state all cases of negligence in terms of imputed or presumed foresight. One could even push the presumption further, applying the very inaccurate maxim that every man is presumed to intend the natural consequences of his own acts; and this way of speaking will in fact be found to have been used now and then, especially in the criminal law, where the notion of intent has a stronger foothold. The second fiction is more remote and less philosophical than the first; 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 what circumstances a man must have known, in any given case, in order to be 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, both in the preceding Lecture and here, and it must be touched upon. It has been assumed that conduct which the man of ordinary intelligence would perceive to be dangerous under the circumstances would be blameworthy if he pursued it. That might not be so, however. Suppose that a man, acting under the threats of twelve armed men which put him in fear of his life, enters another man's close—his enclosed land—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. It might, however, be actionable, and Chief Justice Rolle ruled that it was, in Gilbert v. Stone, in 1648. If that is law, it goes the full length of deciding that it is enough if the defendant 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 best he can, there is no reason why he should be allowed to transfer his misfortunes, intentionally and permanently, to the shoulders of his neighbors.
It cannot be inferred, from the mere fact that certain conduct is made actionable, that the law therefore regards it as wrong or seeks to prevent it. Under our mill acts—the statutes that let a man dam a stream to run a mill, even though the water backs up over his neighbor's land—a man has to pay for flooding his neighbor's lands, just as in trover he has to pay for converting his neighbor's goods. Yet the law approves and encourages the flooding of lands for the building of mills.
Moral predilections must not be allowed to influence our minds in settling legal distinctions. If we look only at the liability, how are we to distinguish between trover and the mill acts? Or between conduct which is prohibited and conduct which is merely taxed? The only distinction I can see lies in the different collateral consequences attached to the two classes of conduct. In the first class, the maxim in pari delicto potior est conditio defendentis—where both parties are equally in the wrong, the defendant is in the stronger position—together with the invalidity of contracts that contemplate such conduct, shows that the conduct is outside the protection of the law. In the second class, it is otherwise. This opinion is confirmed by the fact that almost the only cases in which the distinction between prohibition and taxation comes up at all concern the application of these maxims.
But if this is true, liability to an action does not necessarily imply wrongdoing. And this may be admitted without in the least weakening the argument of 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 Chief Justice Rolle's ruling would be followed now. The squib case, Scott v. Shepherd—where a lighted firework thrown into a crowded market was tossed on from stall to stall until it exploded in a man's face—and the language of some textbooks are more or less opposed to it. If this latter view is the law, then in general an act must be not only dangerous, but one which would be blameworthy on the part of the average man, in order to make the actor liable. But apart from such exceptional cases as Gilbert v. Stone, the two tests agree, and the difference need not be considered in what follows.
Footnote: The broad language of one of these textbooks rests on an old case in the Year Books which hardly sustains it.
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 great enough to throw the risk upon the party who pursues 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 would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd and pulling the trigger, even though he had been told it was 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 follows he is answerable for it. The co-ordinated acts needed 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. Without further facts they threaten harm to no one. But the one additional circumstance of a man standing in the line of fire and within range makes the conduct manifestly dangerous to anyone who knows that fact. There is no longer any need to refer to the prudent man, or to general experience. The facts have taught their lesson, and have generated a concrete and external rule of liability. He who snaps the cap of a gun pointed toward another person, whom he knows to be there, is answerable for the consequences.
The question what a prudent man would do under given circumstances is, then, the same as the question what experience teaches about the dangerous character of this or that conduct under these or those circumstances. And since the teachings of experience are matters of fact, it is easy to see why the jury should be consulted about 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 left undone in the circumstances of the case, not on what was done. Their function is to suggest a rule of conduct.
Sometimes courts are led to lay down rules by facts of a more specific kind: that the legislature passed a certain statute, and that the case before the court is within the fair meaning of its words; or that the practice of a specially interested class, or of the public at large, has produced a rule of conduct outside the law which it is desirable for the courts to recognize and enforce. These are matters of fact, and have sometimes been pleaded as such. But their only importance is that, if believed, they will lead the judges to lay down a rule of conduct—in other words, a rule of law—which they suggest. So their tendency in most instances is to disappear as fast as the rules they suggest become settled. While the facts are uncertain, they are still only motives for deciding the law—grounds for legislation, so to speak—and the judges may ascertain them in any way which satisfies their conscience. Thus courts take judicial notice of the statutes of their own jurisdiction, that is, they recognize them without proof, although the laws of other jurisdictions, with doubtful wisdom, are left to the jury. They may take judicial notice of a custom of merchants. In former days, at least, they might inquire into such a custom out of court, in pais, after a demurrer. They may act on the statement of a special jury—a jury of merchants or other men with knowledge of the trade—as in the time of Lord Mansfield and his successors, or on the finding of a common jury based on the testimony of witnesses, as is the practice in this country today. But many instances will be found in the textbooks which show that, once the facts are ascertained, they soon cease to be referred to, and give place to a rule of law.
The same transition can be seen in the teachings of experience. There are many cases, no doubt, in which the court would lean on a jury for help; but there are also many in which the teaching has been formulated in specific rules. These rules will be found to vary a good deal in the number of accompanying circumstances needed 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 by handing it to the jury grows greater. It will be useful, by way of illustration, to follow a line of cases up from the simple to the more complicated. Along the way, particular notice will be taken of how hard it is to distinguish rules based on other grounds of policy from those which have been worked out in the field of negligence.
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. Although it is unnecessary for the defendant to have intended or foreseen the evil 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. Still, the co-ordination of a series of acts shows a further intent than any single act necessarily shows, and sometimes proves, with almost equal certainty, knowledge of one or more accompanying circumstances. And there are cases where conduct carrying only the intent and knowledge thus necessarily implied is enough to throw its risk on the actor.
For instance, when a man performs the series of acts called walking, it is assumed for all purposes of responsibility that he knows the earth is under his feet. The conduct in itself 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 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 were partly discussed in the last Lecture. Possibly there is more of history, or of past or present notions of policy, in its explanation than was suggested there, 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 its 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 by the cross-lights of tradition, and hard as we may find it to arrive at a perfectly satisfactory general theory, it does distinguish, in a pretty sensible way, according to the nature and degree of the different perils that belong to a given situation.
From the simple case of walking we may go on to the more complex cases of dealing with tangible things that are someone's property. Generally speaking, it may be said that a man meddles with such things at his own risk. It does not matter how honestly he believes that they belong to him, or are free to the public, or that he has the owner's permission, or that the case is one in which the law has limited the rights of ownership. He takes his chance on how the facts turn out, and if they are otherwise than he supposes, he must answer for his conduct. As has already been suggested, he knows that he is exercising more or less control over property, or that he is injuring it; he must make good his right if it is challenged.
Whether this strict rule rests on the common grounds of liability or on some special consideration of past or present policy, policy has set some limits to it, as was mentioned in the foregoing Lecture.
Another kind of conduct which is at the party's risk, without any further knowledge than the conduct itself implies, is keeping a tiger or a bear, or any 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. Notice in particular, in this instance, how far back along the chain of causes the moment of choice lies from the harm complained of. Ordinary cases of liability arise out of a choice which was the proximate cause of the harm on which the action is founded. But here there is usually no question of negligence in guarding the beast. In most cases, if not in all, it is enough that the owner chose to keep it. Experience has shown that tigers and bears are alert to find ways of escape, and that if they escape they are very likely to do serious harm. The possibility of a great danger has the same effect as the probability of a lesser one, and the law throws the risk of the venture on the person who brings the peril into the community.
This remoteness of the opportunity to choose goes far to show that the risk is thrown on the owner for some reason other than the ordinary one of imprudent conduct. It has been suggested that the liability rests on remote inadvertence—on a carelessness far back in the chain. But the law does not forbid a man to keep a menagerie, or regard it as in any way blameworthy. And it has applied nearly as strict a rule to activities which are even more clearly useful 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 in the existence of such a chance to avoid doing the harm as a man is usually allowed. But the very fact that remote inadvertence has been offered as an explanation illustrates what has been said about the difficulty of deciding, once a special rule has been laid down, whether it is founded on special grounds or has been worked out within the sphere of negligence.
It should further be noticed that no question is raised about the defendant's knowledge of the nature of tigers, although without that knowledge he cannot be said to have intelligently chosen to expose the community to danger. Here again, even in the domain of knowledge, the law applies its principle of averages. 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 rest of what an average member of the community would know, at his peril.
What is true of damage in general done by ferocious wild beasts is true of one particular class of damage done by domestic cattle, namely, trespasses on another's land. This has been dealt with in earlier Lectures, so it is needless to do more than recall it here and point out the distinction, based on experience and policy, between damage which is of a kind to be expected and damage which is not. Cattle generally stray, and damage cultivated land when they get onto it. Only exceptionally do they hurt human beings.
I need not return to the possible historical connection of either of these last two forms of liability with noxal surrender. Whether that origin is proved or not, the policy of the rule has been accepted as sound, and within the last few years it has been carried further in England, by the doctrine of Rylands v. Fletcher: that a man who brings onto his land and keeps there anything likely to do mischief if it escapes must keep it in at his peril. How strict this principle is will vary from one jurisdiction to another, 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 already been said. The law allows some harms to be inflicted intentionally, and all the more, a fortiori, some risks to be run intentionally. In some Western States a man is not required to keep his cattle fenced in. Some courts have refused to follow Rylands v. Fletcher. On the other hand, the principle has been applied to artificial reservoirs of water, to cesspools, to accumulations of snow and ice on a building caused by the shape of its roof, and to party walls—the shared walls between neighboring buildings.
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 through which the dangerous thing escaped. The moment of choice lay further back; and although he was not to blame, he was bound at his peril to know that the thing 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 considered so far. In these, the party must have known one more accompanying circumstance, in addition to those whose knowledge is necessarily or practically proved by his conduct. The cases which naturally come to mind again concern animals. Experience, as interpreted by the English law, has shown that dogs, rams, and bulls are in general tame and mild by nature, and that if one of them does happen to show a tendency to bite, butt, or gore, it is an exceptional thing. Hence it is not the law that a man keeps dogs, rams, bulls, and other such tame animals at his peril as to the personal injuries they may inflict—unless he knows, or has notice, that the particular animal he keeps 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 further 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 known wildness is not dangerous in general, but only in particular circumstances. Add to the keeping an attempt to break the horse; still no danger to the public is shown. But if the place where the owner tries to break it is a crowded thoroughfare, the owner knows an additional circumstance which, by common experience, makes this conduct dangerous, and he must therefore take the risk of whatever harm is done. On the other hand, if a man who was a good rider bought a horse with no sign 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. Experience has measured the probabilities, and it draws the line between the two cases.
Whatever the true explanation of the rule applied to keeping tigers, or of the principle of Rylands v. Fletcher, in these last cases we have entered the sphere of negligence. And if we take a case lying somewhere between the two just stated, and add a little to the complexity of the circumstances, we shall find that both the conduct and the standard would probably be left to the jury without much sorting, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances.
As for the wrongs called malicious or intentional, it is not necessary to list the different classes a second time and find each a place in this series. As has been seen, they vary in the number of circumstances which must be known. Slander is conduct very generally at the speaker's risk. Charges of the kind it deals with are manifestly harmful, so the questions which actually arise mostly concern the defenses 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 would naturally lead someone to act on them, and are made on insufficient grounds.
It is not without significance, however, that certain wrongs are described in language implying intent. In such cases the harm is most often done intentionally; and if intent to cause a certain harm is shown, there is no need to prove knowledge of facts which made it likely 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 extend, on the one hand, beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be said to have chosen to cause that harm. On the other hand, they do not extend to every instance in which the damage would not have happened but for some remote choice on his part. Generally speaking, the choice will be found to have gone further than a simple act, and to have joined co-ordinated acts into conduct. Very commonly it will have gone further still, to some external consequence. But generally, too, it will be found to have stopped short of the consequence complained of.
The question in each case is whether the actual choice—in other words, the result actually contemplated—was near enough to the remoter result complained of to throw the peril of it on the actor.
Many of the cases put so far are cases in which the defendant intended to produce the proximate cause of the loss. But it will be seen that the same result may be caused by a choice made at different points. Suppose, 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 in between is of no importance, and has no bearing on the case.
But the choice may have stopped one step further back. The defendant may have intended to light a fire on his own land, and not intended to burn the house. Then the nature of the physical causes that intervened and accompanied the act 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 the danger was very plain and very great—if, for instance, his conduct consisted in lighting stubble near a haystack close to the house, and the evident 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 lit an ordinary fire in a fireplace in the house next door, knowing nothing of the fireplace's being unsafely built, the court would probably rule that he was not liable. In the middle, complicated and doubtful cases would go to the jury.
But the defendant may not even have intended to set a fire. His conduct and intent may have been simply to fire a gun, or, more remote still, to walk across a room, in doing which he involuntarily upset a bottle of acid. So cases may go to the jury because the choice lies far back in the series of events, as well as because of the complexity of the circumstances attending the act or conduct. The difference is perhaps more dramatic than substantial.
But the philosophical analysis of every wrong begins by determining what the defendant has actually chosen—that is, what his voluntary act or conduct has been, and what consequences he has actually contemplated as flowing from it—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, which, as the story goes, glanced off a tree in the New Forest and killed King William Rufus. If an expert marksman contemplated that the arrow would hit a certain person, cadit quaestio—the question is settled. If he contemplated that it would glance in the direction of another person, but contemplated no more than that, then in order to judge his liability we must go to the end of his foresight, assume the foreseen event to happen, and consider what the manifest danger was at that point. But if no such event was foreseen, the marksman must be judged by the circumstances known to him at the time he shot.
The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without any reference 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 men to take the law into their own hands. It thus naturally adopted the vocabulary, and to some degree the tests, of morals. But as the law has grown, even where its standards have continued to model themselves on those of morality, they have necessarily become external. For 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 settled 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 acted in fear of his life. In such cases he will be liable or not according to whether the law makes moral blameworthiness, within the limits explained above, the ground of liability, or thinks it enough that the defendant 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 further removed from any reference to the moral condition of the defendant, than even the test of the prudent man, which marks the first stage in the division between law and morals. It does this in the domain of wrongs described as intentional as systematically as in those called 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 always acts at his peril. On the contrary, its concrete rules, as well as the general questions put 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 enough to throw upon a person the peril of his conduct, unless, judged by average standards, he is also to blame for what he does.
So far the discussion has been confined to the general principles of liability, and to the way we find 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 someone 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 anyone 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 someone, and then it is a wrong only to the possessor or owner. It is neither a harm nor a wrong to fail to deliver a bale of wool at a certain time and place, unless a binding promise has been made to deliver it, and then it is a wrong only to the person who was promised.
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 by "relations" I mean simply relations of fact—are possession and contract, and I shall take up those subjects one after the other.
The test of the theory of possession that prevails in any system of law is how it deals with people who have a thing within their power but who do not own it, or claim the position of an owner for themselves with regard to it—bailees, in a word. It is necessary, therefore, as a first step toward understanding the common-law theory of possession, to study what the common law says about bailees.
The state of things on the border between England and Scotland until fairly recent times, which is brought back to life in the ballad of the Fray of Suport, is very like the state of things that, in an earlier century, left its skeleton in the folk-laws of Germany and England. Cattle were the chief property people knew, and cattle-stealing was the chief way of wrongfully taking property. There was very little law, and what there was depended almost wholly on the injured party himself to enforce it. The Salic Law of the fifth century and the Anglo-Saxon laws of Alfred give very full directions about following the trail. If the pursuer came up with the cattle before three days had passed, he had the right to take them and keep them, subject only to swearing that he had 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 that would disprove the claimant's loss.
This procedure was truly a legal procedure; but it depended on the party making the claim both to start it and to carry it out. Being "executive" in nature—a matter of doing rather than of pleading—it could hardly have been started by anyone other than the person on the spot, in whose keeping the cattle had been. The oath was to the effect that the party had lost possession against his will. But if all 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 use the procedure depended on possession, not on ownership. Possession was not merely enough; it was essential. Only the man who had possession could say that he had lost the property against his will, just as only the man who was on the spot could follow the cattle.
Footnote: Laband and Heusler correct the earlier opinion of Bruns on this point, which Sohm adopted. Compare the discussion of the word "his" (sua) in writs of trespass in the English law, at the end of Lecture VI. Our knowledge of the primitive form of action is somewhat meager and depends on inference. The edict of Liutprand, dealing with housebreaking followed by theft of property the householder had been left in charge of, lays down that the owner shall look to the bailee alone, and the bailee shall hold the thief responsible both for the housebreaking and for the stolen goods—because, as it says, we cannot raise two claims out of one cause. This is somewhat as our own law was unable to split the severing of a thing from the land, and the conversion of it, into two different wrongs.
This, so far as we know, was the one means the early law of our race provided for getting back property lost against one's will. So, in a word, this procedure, modeled on the self-help that came naturally in the situation that gave rise to it, was the only remedy. It was confined to the man in possession, and it was not open to the owner unless he was that man.
To this primitive condition of society has been traced a rule that survived into later times and a more civilized procedure: if the owner entrusted chattels to another person, it was the bailee, and not the bailor, who was the proper party to sue when a third person wrongfully took them. It followed that if the bailee—the person so entrusted—sold or gave the goods in his charge to someone else, the owner could look only to the bailee and could not sue the stranger. This was not from any principle in favor of trade, meant to protect those who bought in good faith from people in possession, but because there was no form of action open to him. But since all the remedies were 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 had been 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, just as a possessor could. But the strict liability of the bailee remained, as such rules do remain in the law, long after the causes that gave rise to it had disappeared, and at length we find cause and effect turned upside down. We read in Beaumanoir, the French jurist, writing in 1283, that if a hired thing is stolen, the right to sue belongs to the bailee, because he is answerable to the person from whom he hired it. At first the bailee was answerable to the owner because he was the only person who could sue. Now it was said that he could sue because he was answerable to the owner.
All the peculiarities just described reappear in the Anglo-Norman law, and from that day to this every kind of bailee has been treated as having possession in the legal sense, as I shall presently show.
It is worth proving that our law of bailment is of native origin, so that, when we come to theory, modern German opinion may not be valued at more than it is worth. The only existing theories on the subject come from Germany. The German philosophers who have written on law have known no system but the Roman, and the German lawyers who have philosophized have been professors of Roman law. Some rules that we think clear go against what the German civilians—scholars of the Roman, or civil, law—would regard as first principles. To test the value of those principles, or at least to prevent the hasty assumption that they are universal (and English writers show a slight tendency to make it), it is well to realize that we are dealing with a new system, which philosophy has not yet taken into 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 a man may sue for his chattel as stolen, on the testimony of good men, and that it does not matter whether the thing so taken was his own property or another's, provided it was in his custody.
The point of special importance, it will be remembered, was the oath. From the wording of Bracton, the oath of the good men (probi homines) seems to have been that the thing was lost (adirata), and a report of the year 1294 tells us expressly that this was so. It says, in effect, that the loser may state his claim this way: "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, etc., and tortiously for this that whereas he lost the said thing on such a day, etc., he [the loser] came on such a day, etc. (la vynt yl e en jour), and found it in the house of such an one, and told him, etc., and prayed him to restore the thing, but that he would not restore it, etc., to his damage, etc.; and if he, etc. In this case, the demandant must prove (his own hand the twelfth) that he lost the thing." To "count" was to state one's claim in court, and to prove a thing "his own hand the twelfth" was to swear to it backed by eleven others who swore with him.
Footnote: This is not trover. The claim to the return of a thing on the ground that the plaintiff had lost it and the defendant had found it was called, in the fifteenth century, "a newfound holiday."
Assuming, then, that as a 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 like those just explained. One of them, it will be remembered, concerned a 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 passes to the stranger by the gift, and I cannot bring trespass against him; but I have a good remedy against the bailee by the writ of detinue—the action to get back a specific thing wrongfully kept from its owner—for his failure to return the goods. These cases have been understood, and on the whole it seems rightly, to deny the bailor not merely trespass but any action whatever. Modern writers have added, however, the characteristically modern qualification that the purchase must be bona fide and without notice—that is, made in good faith by a buyer who did not know of the owner's claim. The answer is that the rule extends to gifts as well as to sales by the bailee, that there is no such condition in the old books, and that it goes against the spirit of the strict doctrines of the common law to read one in. No lawyer needs to be told that, even so qualified, this is no longer the law. 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 finer feeling for the rights of good-faith purchasers than we have now.
The next point in logical order would be how far the bailee was held responsible to the bailor who entrusted him. But for convenience I will first take up the explanation given for the bailee's right of action against third persons who wrongfully took the goods from his possession. The reader will remember Beaumanoir's inverted explanation: that the bailee could sue because he was answerable over to the owner, instead of the original rule, that he was answerable over so strictly because only he could sue. We find the same reasoning repeated often in the Year Books, and indeed from that day to this it has been one of the commonplaces of the law. Thus Hankford, then a judge of the Common Bench, says, around 1410: "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 they were stolen, he would have no action against the thief. The same explanation is repeated to this day. Thus we read in a well-known textbook, "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," etc. But in general, nowadays, a borrower or hirer of property is not answerable if it is taken from him against his will. If the reason offered were the true one, it would follow that, since he was not answerable over, he could not sue the wrongdoer. The wrongdoer would only have to commit a wrong so gross that it freed the bailee from responsibility, and the bailee would lose his right of action. The truth is that any person in possession, whether entrusted and answerable over or not—a finder of property as well as a bailee—can sue anyone except the true owner for interfering with his possession, as will be shown more fully at the end of the next Lecture.
Footnote: Because the bailee recovered the whole value of the goods, the old reason, that he was answerable over, has in some cases turned into a new rule, seemingly based on a misunderstanding: that the bailee holds in trust for the bailor whatever he recovers beyond his own damage. From there the new rule has been extended to insurance money recovered by a bailee. In this form it ceases to be a reason for allowing the action at all.
The bailor also got a right of action against the wrongdoer at a fairly early date. In the forty-eighth year of Edward III, in an action of trespass brought by an agister of cattle—a man paid to pasture other people's cattle—counsel laid it down 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 he who recovers first shall oust the other of the action, and 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." The comparison is to land held by a creditor under a writ of elegit until his debt is paid: if he is put out, both he and the owner may bring the assize, and whichever wins first cuts off the other's writ.
Other books suggest that this was said of bailments generally, and was not limited to those the bailor could end whenever he pleased. Thus in the twenty-second year of 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." And this seems to have been Rolle's understanding in the passage modern courts usually rely on.
It was to be expected that the bailor would be given some action as soon as the law had machinery that could be worked without the fresh pursuit and the armed hands of the possessor and his friends. Before the action on the case was heard of, allowing the bailor to sue and giving him trespass came to pretty nearly the same thing. Many early writs will be found which show that trespass did not always have the sharp outline it developed later. The point the Year Books seem to insist on is, as Brooke sums it up in the margin of his Abridgment, that two people shall have an action for a single act—not that both shall have trespass rather than case. It should be added that the Year Books quoted go no further than a wrongful taking out of the bailee's custody, which is the old case of the folk-laws. Even so, the right to bring trespass is now denied to the bailor where the bailee has the exclusive right to the goods by a lease or a lien; although the doctrine has been repeated for bailments the bailor can end at pleasure. But the modified rule does not concern the present discussion any more than the earlier form did, because it still leaves the possessory remedies—the actions that protect possession as such—open 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 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 plainly, from the fact that the bailee's right to trespass and trover is asserted in the same breath as the bailor's, and is proved as well by express decisions, which will be cited.
Footnote: In one instance, where the bailor was allowed, against Brian's opinion, to sue a stranger for damage to the chattel, the action seems to have been case.
It is true that in Lotan v. Cross Lord Ellenborough ruled at nisi prius that a lender could bring trespass for damage done to a chattel in the hands of a borrower, and that the case is often cited as authority without comment. Indeed, reputable textbooks sometimes lay it down generally that a gratuitous bailment—one made without payment—does not change the possession but leaves it in the bailor; that a gratuitous bailee is a sort of servant of the bailor, so that the possession of one is the possession of the other; and that this is why, although the bailee may sue on his possession, the bailor has the same actions. 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 whatever ground Lotan v. Cross may stand on, if it stands on any, it cannot for a moment be admitted that borrowers in general do not have trespass and trover. A gratuitous deposit, made for the sole benefit of the person depositing the goods, is a much stronger case for denying these remedies to the depositary, the person who keeps them. Yet we have a decision of the full court, in which Lord Ellenborough also took part, that a depositary has case; and the reasoning implies that a borrower, all the more (a fortiori), would have trespass. And this has always been the law. We have seen that a similar doctrine followed necessarily from the nature of the early German procedure; and the cases 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 this: in the theory of the common law every bailee has a true possession, and a bailee recovers on the strength of his possession, just as a finder does, and just as even a wrongful possessor may get full damages, or the 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 too have possession. It is probably by a survival, which has been explained, and which in its modern form is an anomaly. The reason usually given is that a right to immediate possession is enough—a reason which itself shuts out the notion that the bailor actually has possession.
The point essential to understanding the common-law theory of possession is now established: from time immemorial the English law has regarded all bailees as possessors, 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, curiosity aside, the doctrine that remains to be discussed has had so important an influence on 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.
The early textbook writers are not as instructive as one might hope, because of the influence of the Roman law. Glanvill, however, says in so many words that if a borrowed thing is destroyed or lost in any way while in the borrower's custody, he is absolutely bound to pay a reasonable price for it. So does Bracton, who partly repeats, but modifies, what Justinian says about commodatum, depositum, and pignus—the Roman loan for use, deposit for safekeeping, and pledge—and about the duty of the hirer to use the care of a diligentissimus paterfamilias, the most careful head of a household.
Footnote: Bracton's passage says that one who has received a thing on loan is bound to return it, or its price, even if it has been destroyed or lost by fire, the fall of a building, shipwreck, or the attack of robbers or enemies. This has been thought a corrupt text, but it agrees with Glanvill and with Fleta.
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 an action of detinue, the defendant's plea was that the plaintiff had delivered to him a chest locked with the plaintiff's own key, that the goods were in the chest, and that they had been taken from the defendant by robbery together with his own goods. The replication—the plaintiff's answer to the plea—was that the goods had been delivered to the defendant outside any enclosure, and Fitzherbert says the defendant was driven to take issue on that point. This implies that if the goods were not in the chest but simply in the defendant's custody, he was liable. Lord Holt, in Coggs v. Bernard, 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 about carriers "breaking bulk"—opening the package entrusted to them—in modern criminal law. In the reign of Edward III the case of a pledge came up; a pledge seems always to have been regarded as a special bailment, to be kept as the holder kept his own goods. The defense was that the goods had been stolen along with the defendant's own. The plaintiff was driven to reply that he had made a tender of the debt before the theft, which would have ended the pledge and left the defendant an ordinary bailee. Issue was joined on that point, which confirms the other cases, since it implies that in that event the defendant would be liable.
Next I take a case from the time of Henry VI, in 1455. It was an action of debt against the Marshal of the Marshalsea, the jailer of the King's Bench prison, for the escape of a prisoner. Jailers in charge of prisoners were governed by the same law as bailees in charge of cattle. The prisoner's body was delivered to the jailer to keep under the same liabilities that cows or goods would have carried. He pleaded in defense that enemies of the king broke into the prison and carried off the prisoner against the defendant's will. The question was whether this was a good defense. The court said that if alien enemies of the king—the French, for instance—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 the king's own subjects 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 came very near the original ground of liability, and drew its distinction accordingly. The person entrusted was liable in those cases where he had a remedy over against the wrongdoer (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, ended where the remedy ended. 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 unlikely it was that he would get much satisfaction that way.
Footnote: This case is cited and heavily relied on in all the leading cases on bailment, among them Woodlife's Case, Southcote v. Bennett, Pickering v. Barkley, and Morse v. Slue.
A few years later the famous Littleton states the law in the same way. He says that if goods are delivered to a man, he shall have an action of trespass if they are carried off, because he is chargeable over. That is, he is bound to make the loss good to the person who trusted him with them.
Footnote: It is proper to add that in the second of these cases Littleton does not seem to distinguish between servants and bailees.
In the ninth year of Edward IV, Danby says that if a bailee received goods to keep as his own goods, then robbery shall excuse him; otherwise not. Again, in a later case, robbery is said to be no excuse at all. There may have been some hesitation about robbery when the robber was unknown, so that the bailee had no remedy over. There may even have been hesitation about robbery generally, on the ground that, because the robbery was a felony, the bailee could not go against either the robber's body or his estate: the one was hanged and the other forfeited. 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"—that is, whom he knows—"he shall be chargeable to his bailor, and shall have his action over against his trespasser." The same point was touched in other passages of the Year Books, and the rule of law is clearly implied by the reason given for the bailee's right to sue in the cases cited above.
The principle was decided directly, in accordance with the ancient law, in the famous case of Southcote v. Bennet. This was an action of detinue for goods delivered to the defendant to keep safely. The defendant admitted the delivery, and answered that he had been robbed of the goods by one J.S. "And, after argument at the bar, Gawdy and Clench, ceteris absentibus"—the other judges being absent—"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." This passage from Croke's report implies what Lord Coke says outright in his own report of the case, 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 also confirms the caution that Lord Coke adds at the end of his: "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." In other words, the careful bailee should say at the start that he takes the goods only on those terms.
Down to this time, at least, the law was clear. If a person accepted possession of goods to keep for another, even as a favor, and lost them by a wrongful taking wholly without his own fault, he was bound to make good the loss—unless, when he took possession, he had expressly stipulated against such a responsibility. Lord Holt in Coggs v. Bernard, and Sir William Jones in his book on Bailments, tried to show that Southcote v. Bennet was not supported by authority. The attempts were futile, as any one who will study the Year Books for himself may see. Chief Baron Peryam had laid down the same principle seven years before, in Drake v. Royman, and Southcote's Case was followed without question as a leading precedent for a hundred years.
Thus the circle of analogies between the English and the early German law is complete. In both there is the same procedure for lost property, turning on the single question whether the plaintiff had lost possession against his will. There is the same principle that, if the person trusted with the property parted with it to another, the owner could not recover it from that other, but had to get his indemnity from his own bailee. There is the same inverted explanation—that the bailee could sue because he was answerable over—and yet the substance of the true doctrine survives in the rule that when he had no remedy he was not answerable. And, finally, there is the same absolute responsibility for loss, even when the loss happened without any fault in the person trusted. The last and most important of these principles is seen in force as late as the reign of Queen Elizabeth. We now have to follow its later fortunes.
A common carrier—one who makes a public business of carrying goods for anybody who will pay—is liable for goods that are stolen from him, or otherwise lost from his charge, except by the act of God or the public enemy: that is, by natural forces no man could resist, or by a nation at war with his own. Two notions have been held about the source of this rule. One is that it was borrowed from the Roman law. The other is that it was introduced by custom, as an exception to the general law of bailment, in the reigns of Elizabeth and James I.
I shall try to show that both notions are wrong. This strict responsibility is a fragmentary survival from the general law of bailment which I have just explained. The changes the old law has undergone were due to three things: in part to a confusion of ideas which came in when the action on the case displaced detinue; in part to ideas of public policy which Lord Holt read into the precedents; and in part to still later ideas of policy which later judges have read into the reasoning of Lord Holt.
Southcote's Case was decided in the forty-third year of Queen Elizabeth, A.D. 1601. I think the first mention of a carrier that bears on the question occurs in Woodlife's Case, decided four or five years earlier, in 1596 or 1597. It was an action of account—the old action against one who had handled another's property and owed him a reckoning—for merchandise delivered to the defendant, apparently as a factor, or agent to buy and sell ("pur merchandizer"), and clearly not as a carrier. The defendant's plea was that the goods had been taken by robbers at sea along with his own. Gawdy, one of the judges who later decided Southcote's Case, thought the plea bad. But Chief Justice Popham said that, although it would not be a good plea for a carrier, because a carrier is paid for his carriage, there was a difference on this point between carriers and other servants and factors.
This is repeated in Southcote's Case, and it seems to involve a double distinction: first, between paid and unpaid bailees; and next, between bailees and servants. If the defendant was a servant without control over the goods, he might not fall within the law of bailment at all, and in the early law factors were treated on the footing of servants.
The other distinction, between paid and unpaid, marked the entrance of the doctrine of consideration into the law of bailment. Consideration originally meant quid pro quo—something given in exchange—as will be explained in Lecture VII. That is how it was treated in Doctor and Student, the sixteenth-century dialogue between a doctor of divinity and a student of the common law, written when the principle was still young. Chief Justice Popham probably borrowed his distinction between paid and unpaid bailees from that work, where common carriers are given as an example of the paid class. A little earlier, reward had made no difference.
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, stated above. At that Popham fell back on the old distinction: the jailer had a remedy over against the rebels who broke his prison, but in the case before the court there was no remedy over.
The other cases relied on were some of those on bailment in general 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, and the only question was whether the defendant fell within it. Nothing was said of any custom of the realm, nor had anything ever been said of one in any reported case before this time. I believe this is the first instance in which carriers are distinguished in any way from any other class of persons trusted with goods. There is no hint in the old books of any special obligation peculiar to them; and it is certainly 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 simply of carriers.
Next came Southcote's Case itself, in 1601, which presented the old law pure and simple, without regard to reward or any modern innovation. In this case, and in the earlier instances of loss by theft, the action was detinue, and the plaintiff counted—that is, stated his claim—simply, we may presume, on a delivery and a wrongful detaining of the goods.
But about this time important changes took place in the procedure usually adopted, and they must be explained. If the chattel could be returned in specie—the thing itself—detinue gave no satisfaction for any damage it might have suffered through the bailee's neglect. The natural remedy for such damage was the action on the case. But before case could be made entirely satisfactory, certain difficulties had to be overcome. The neglect that caused the damage might be a mere omission. And what was there in a nonfeasance—a failure to act—that resembled trespass, to support the analogy on 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 construed in those days, it would not have been enough to allege that the plaintiff's goods were damaged by the defendant's negligence. These troubles had been got over by the well-known words super se assumpsit, which will be explained later. For a long time assumpsit did not become an independent action of contract. The allegation was simply the inducement—the introductory statement of circumstances—to an action of tort. The ground of liability was that the defendant had begun upon the undertaking, so that his negligent omission, which let in the damage, could be connected with his acts as part of his dealing with the thing. We shall find Lord Holt recognizing this original meaning 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 in case. Although it is less familiar to lawyers, it has a special bearing on the law of carriers in later times. If damage had been done or brought about by the act or omission of the defendant in the pursuit of one of the more common callings—that of a farrier, for instance, who shoes horses—it seems that the action could be maintained without laying an assumpsit, on the allegation that he was a "common" farrier. This principle, too, was wholly independent of bailment. It expressed the general obligation of those who carried on a public or "common" business to practise their art on demand, and to 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."
Footnote: In the same way an innkeeper must be a common innkeeper. In Blackstone the reader will find that "the transition from status to contract" has already taken place.
Once it had been established in this way that case would lie for damage occasioned by the defendant's omission as well as for damage caused by his act, there was no reason to deny it even when the negligent custody had resulted in the destruction of the property. From there it was only a step to extend the same form of action to every case of loss by a bailee, and so to take away the defendant's right to wage his law—the ancient privilege of clearing himself by his own oath, backed by the oaths of neighbors who swore to his credit. Detinue, the primitive remedy, kept that mark of primitive procedure. The last extension was made at about the time of Southcote's Case. But when one form of action 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 of confusion was opened about the foundation and nature of the defendant's duty.
Footnote: The process may be traced by reading the cases in order, from the reign of Henry VII, through the early years of Henry VIII and the later years of Elizabeth, down to the eleventh year of James I.
In truth there were two sets of duties. One was not peculiar to bailees, and arose from the defendant's assumpsit or his public calling, as just explained. The other was the ancient obligation peculiar to bailees as such, of which Southcote's Case was an example. But by Lord Coke's time assumpsit had been taken over by contract and the doctrine of consideration had been developed. After that, any obligation of a bailee might be thought of as part of a contract of bailment, and it seemed unnecessary to distinguish nicely between the two sets of duties, provided a consideration and a special promise could be alleged. Furthermore, since the defendant's public calling had formerly had the same effect as an assumpsit for the purpose of charging him in tort, it now seems to have been thought an equally good substitute for a special promise in order to charge him in assumpsit. In Rogers v. Head the argument was that to charge a man 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—as a common carrier, for instance—could be charged in this form of action for a breach of either set 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 both before and after that case, that one who was not a common carrier could have been charged for failing to deliver in a special action—that is, in case, as distinguished from assumpsit.
Footnote: There is an obscurely reported case of the late years of Elizabeth, Mosley v. Fosset, which seems to have been assumpsit against an agistor—a man paid to pasture another's cattle—for a horse stolen while in his charge. It asserts in passing that "without such special assumpsit the action does not lie." This must refer to the form of the action, since the judges who decided Southcote's Case took part in the decision.
Suppose, next, that the plaintiff sued in case, for a tort. As before, the breach of duty complained of might be damage to property of the kind that 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 because 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. It 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. But it was very natural that the time-honored foundations of the action on the case, in its narrower use, should still be laid in the pleadings even after the scope of the action had been enlarged. We shall have to ask later whether the principles of Southcote's Case were not also stretched in the opposite direction, to cases that did not fall within them. The reasons for the rule it laid down had lost their meaning centuries before Gawdy and Clench were born, when owners acquired the right to sue for the wrongful taking of property in the hands of a bailee. 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 warned bailees to accept goods on terms that would get rid of it.
Footnote: The second count in Morse v. Slue, below, shows that the averment of negligence was mere form.
Accordingly, although that decision was the main authority relied on, whenever a peculiar responsibility was placed on bailees, for the hundred years between it and Coggs v. Bernard, we find that the pleaders did various things. Sometimes an assumpsit was laid, as in the early precedents. More often 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 the true bearing of that allegation was sometimes lost sight of. At first, however, there were only slight signs of confusion in the language of one or two cases; and if the duty was understood to fall within the principle of Southcote's Case, pleaders did not always allege the common or public calling, which was held to be unnecessary. But they also borrowed other devices from the precedents in case, or used them to strengthen an obligation they did not well understand. Chief Justice Popham had approved a distinction between paid and unpaid bailees, so it was thought prudent to lay a reward. Negligence was of course alleged. And finally it became common to allege an obligation "by the law and custom of the realm." This last deserves a little more attention.
There is no writ in the Register—the official collection of the forms of writ—that alleges any special obligation of common carriers by the custom of the realm. But the writ against innkeepers did lay a duty "by the 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 then usual. Other writs of trespass allege a common-law duty in the same way, and still others set out a duty imposed by statute. So, too, "the judges were sworn to execute justice according to law and the custom of England."
The duties of a common carrier, so far as the earlier evidence goes, were simply those of bailees in general, together with the liabilities generally attached to the exercise of a public calling. The word "common" spoke only to the second point, as has been shown above. This is further illustrated by the fact that, when the duty was set out in this way, it was not alleged as an obligation peculiar to common carriers as such. It was laid as the custom or law of common hoymen, or lightermen—the men who worked the small coasting boats and the barges of a harbor—or whatever the business of the party happened to be. It will be noticed that Chief Justice Holt, in Coggs v. Bernard, states the liability as applying to all bailees for reward who exercise a public employment, and mentions common hoymen and masters of ships alongside common carriers, not as included under them. It will also be noticed that in the cases before that time there is no settled formula for the obligation in question. In each case it is set out that the defendant was answerable for what he was said to have done or failed to do in that particular instance.
Footnote: Note especially the variations of statement in Morse v. Slue, set out below in the text.
Returning now to the cases in their order, Rich v. Kneeland comes next, in the eleventh year of James I, A.D. 1613. It was an action on the case, that is, in tort, against a common hoyman. In Croke's report nothing is said of custom. But the declaration alleges that the defendant was a common bargeman; that the plaintiff delivered him a portmanteau and other things to carry, and paid him for it; and that the defendant tam negligenter custodivit—kept it so negligently—that it was taken from him by persons unknown. This is like the second count in Morse v. Slue, below. The defendant's plea was demurred to, and judgment was given for the plaintiff. A writ of error was then brought, to have the judgment reviewed, and the error assigned was 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 first glance that importance was attached to the common calling. But the loss was clearly within the principle of Southcote's Case, which required neither a special promise nor a common calling for its application, and which remained unquestioned law for three quarters of a century afterwards. So the court must have been referring to the form of action used (case), and not to whether the defendant was liable in some form of action (detinue). The objection was that "this action lies not" without special promise—not that the defendant was not liable. Even narrowed in this way, the decision rather encourages the notion that allegations which were needed to charge a man for damage happening through his neglect, in the older and narrower use of this action, were also needed in its new extension to a different class of wrongs. Since it was by now fairly clear that case would lie for a nonfeasance, the notion was mistaken, and we shall see that later decisions denied it.
Footnote: The use which has been made of this case in later times shows how extremely difficult it is, in the older books, to distinguish between principles of substantive law and rules relating only to procedure.
According to Hobart's report of the same case, it was alleged that the defendant was a common hoyman, carrying goods by water for hire, and that by the custom of England such carriers ought to keep the goods so that they should not be lost by the default of themselves or their servants. "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 mean only that the custom of the realm and the common law are the same thing, as had been said about innkeepers long before. But the law as to innkeepers, which the writ called the custom of the realm, had something of the air of a special principle reaching beyond the law of bailment, since an innkeeper's liability extended to goods within the inn of which he did not have the custody. The court may have meant to set such a special principle against the common law, the general law of bailment, which governed the case before it.
Whatever doubts some of Croke's language might raise, standing alone, one fact remains beyond dispute. 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—rested on the authority of Southcote's Case, and was meant to be decided on its principle.
Symons v. Darknoll, in 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 in it 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. It meant, as Southcote's Case had laid down, that delivery, without a special acceptance to keep the goods only as one's own, bound the bailee to keep them safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling. Justice Whitlock pointed out that the action was in tort, not contract. "Et en cest case... Southcote's Case fuit cite"—and in this case Southcote's Case was cited.
The same year, Sergeant Maynard, arguing in Williams v. Hide, stated the same rule for bailments in general, again citing Southcote's Case.
In Kenrig v. Eggleston, in 1648, which was "case against a country carrier for not delivering a box," and so on, of which he had been robbed, nothing was said about custom, nor about the defendant's being a common carrier, unless the words just quoted imply that he was. But it was laid down, as in Southcote's Case, that "it must come on the carrier's part to make special acceptance" if he wanted to lessen his liability as a bailee.
Nichols v. Moore, in 1661, was case against a "water carrier" between Hull and London, alleging a delivery to him at York. It was moved in arrest of judgment—a motion that judgment not be entered because the record is defective—that the defendant had not undertaken to carry the goods from York to Hull. "But notwithstanding this per totam curiam"—by the whole court—"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, in the seventeenth year of Charles II, the declaration was on the custom of the realm against a common carrier, and there was a motion in arrest of judgment on three grounds: that the custom of the realm was misrecited; that the defendant was not alleged to have been a carrier at the time he received the goods; and that counts in trover and in case on the custom had been joined. Judgment was arrested, apparently on the last ground. But the court went on: "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, decided in 1671 and 1672. It was an action against the master of a ship lying in the river Thames, for the loss of goods entrusted to him. The goods had been carried off by robbers, and it was found that the ship had the usual guard aboard at the time. There seem to have been two counts. The first was on the law and custom of England, under which masters of ships were bound "carefully to govern, preserve, and defend goods shipped, so long as said ship should remain in the river Thames"; or, in another report, to keep safely goods shipped to be carried from London beyond sea, "without loss or subtraction," so that for want of such keeping they should not come to any damage; or, in a third, "to keep safely goods delivered to them to carry, dangers of the sea excepted." (The exception last stated was perhaps drawn by the reporter from the usual form of bills of lading, which were referred to in argument.) The second count, which is usually overlooked, was a special count "in case on delivery and being stolen by his neglect."
The case was argued twice, and all the reports agree, as far as they go, in their account of the points pressed.
Holt, for the plaintiff, maintained, first, that the master receives goods generally, without special terms, citing Southcote's Case; and that "only guardian in socage who hath the custody by law, and factor who is servant at the master's dispose, and so cannot take care, are exempt." (A guardian in socage held the land of an heir under age by force of law; a factor was an agent who bought and sold goods for a merchant.) Second, that the master is paid for his keeping, and is therefore a proper person to be sued. Third, that the master has a remedy over against the wrongdoers, citing the case of the Marshal of the King's Bench. Further, that the mischief would be great if the master were not liable, since merchants put their trust in him and could never show any particular default, as the bill of lading made plain; and, finally, that neglect in fact appeared.
On the other side, it was urged that no neglect had been found, and that the master was only a servant, so that if anyone was liable, it was the owners of the ship. It was also suggested that, since there would have been no liability had the goods been taken at sea—for then the case would have fallen under the admiralty law—it was absurd that one rule should govern the beginning of the voyage and another the rest of it.
Footnote: This last is the main point mentioned by two of the reporters.
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 he was liable under the Roman and maritime law as a public carrier and master of a ship.
The opinion of the court was delivered by Chief Justice Hale. It was held that, since the ship lay within the body of a county, the admiralty law did not apply; or, as one report puts it, "the master could not avail himself of the rules of the civil law, by which masters are not chargeable pro damno fatali"—that is, for loss by unavoidable accident. The master was liable to an action because he took a reward, and "he might have made a caution for himself, which he omitting and taking in the goods generally, he shall answer for what happens." The case of Kenrig v. Eggleston seems also to have been referred to. It was further said that the master was an officer rather than a servant, and in effect received his wages from the merchant who paid the freight. Finally, on the question of negligence, the court said it was not enough to have the usual number of men guarding the ship; it was neglect not to have enough to guard the goods, unless against the common enemies of the realm. For this it cited 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.
It will be observed that this case did not turn on any special custom, either as to common carriers or as to shipmasters. All the arguments, and the opinion of the court, assumed that if the case was governed by the common law, and not by the milder rules of the civil 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 from the Year Books if a case had come before him in which property had been received as a pure favor to the plaintiff, without consideration or reward, and had then been taken from the defendant by robbery. Such a case was tried before Chief Justice Pemberton in 1681, and he very sensibly ruled that no action lay, declining to follow the law of Lord Coke's time to such extreme results.
About the same time, the defendant's common calling began to take on a new importance. The other alternative allegation, the assumpsit, was in the end the more important of the two: it led to the doctrine, not objectionable in itself, that all duties arising from a bailment are founded on contract. But the assumpsit had by now given rise to a special action of its own, and so was not much used where the action was in tort, while the other averment, the common calling, occurs more and more often. The notion was plainly gaining ground that the liability of common carriers for loss of goods, whatever the cause of the loss, came 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.
Footnote: The reader will find in Boorman v. Brown the primitive assumpsit, which was only 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, too, the way the Marshal's case was dealt with in one of the later reports. Modern illustrations of the doctrine will be found in Fleming v. Manchester, Sheffield, and Lincolnshire Railway Company, and the cases cited there.
Holt became Chief Justice. Three of the cases of this period were rulings of his.
Footnote: I have in mind Lovett v. Hobbs, Chamberlain v. Cooke, Boson v. Sandford (which cites Southcote's Case), Upshare v. Aidee, and Middleton v. Fowler.
In Lane v. Cotton, in 1701, he showed his disapproval of Southcote's Case, and his impression that the common law of bailment had been borrowed from Rome. The overthrow of Southcote's Case and of the old common law may be said to date from Coggs v. Bernard, in 1703. Lord Holt's famous opinion in that case quotes largely from the Roman law, as it filtered down to him through Bracton. But whatever influence that may have had on his general views, the point decided, and the distinctions he drew about common carriers, were of English growth.
The action did not sound in contract. The complaint was of damage to the goods, and the plaintiff sued in tort, laying an assumpsit as inducement—the introductory allegation leading up to the charge—to a charge of negligence, just as in the days of Henry VI. The plea was not guilty. But after a verdict for the plaintiff, the defendant moved 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 it was required. Hence it was inferred that wherever an assumpsit was laid, even in an 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.
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 a consideration as distinguished from one sufficient to oblige him to carry them, which Holt thought the defendant would not have been bound to do. He then says expressly, "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"; and in this he followed the earlier cases in the Year Books.
Footnote: 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 he put and agreed to from the Year Books. The subject is taken up in Lecture VII.
That was enough to decide the case, and the rule in Southcote's Case had nothing to do with it. But 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. So in a general discussion it became necessary to reconcile the two principles, or to choose between them.
The Chief Justice therefore went on to distinguish between bailees for reward exercising a public employment—common carriers, common hoymen, masters of ships, and so on—and all other bailees. He denied the rule in Southcote's Case as to the second class. He said that the principle of strict responsibility was confined to the first class, and was applied to them on grounds of public policy. And he said that factors were exonerated, not because they were mere servants, as had always been laid down (among others, by Holt 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 convincing that this did not mean the adoption of the Praetor's Edict. There is further evidence at hand if it is wanted.
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, and the like had been decided. 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 further 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—the shipmasters, innkeepers, and stable-keepers of the Edict—nor even to common carriers. It 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 earlier decisions; and it is quite unlike, and much more severe than, the responsibility imposed by the Roman law, as others have observed.
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 partly shown in this Lecture that the law of today has made the carrier's burden heavier than it was in the time of the Year Books. Southcote's Case, and the earlier authorities that have been cited, all concern a loss by robbery, theft, or trespass, and hold the bailee liable where, in theory at least, he has a remedy over against the wrongdoer. It was with such cases in view, as we have seen, that the rule arose, although it is not improbable that it would also have been applied to a loss nobody could explain; the writ against innkeepers reads absque subtractione seu amissione custodire, "to keep without removal or loss." In later times the principle may have been extended from loss by theft to loss by destruction. In Symons v. Darknoll, in the reign of Charles 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—that is, ceased to exist as the things they were. By then the old rule had become an arbitrary precedent, followed according to its form with little thought of its true purpose.
Footnote: In the reports of the early sixteenth century the encroachment of case on detinue and the corresponding confusion in principle may be seen pretty clearly taking place. But compare what was said earlier in this Lecture.
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 cases." That is to say, he has become an insurer to that extent: not only against the disappearance or destruction of the goods, but against every form of damage to them, except as excepted above.
The process by which this came about has been traced above, but a few words may be added here. The Year Books, even when dealing with the destruction (as distinguished from the conversion) of chattels in the hands of a bailee, always state his liability as based on his fault—though it must be admitted that the language is used alio intuitu, with a different question in view. A jettison in a tempest—throwing the goods overboard to save the ship—seems to have been a good plea for a factor in the time of Edward III; but that cannot be relied on as an analogy. The argument from the Marshal's case is stronger. There it seems to have been thought that the burning of the prison was as good an excuse for an escape as a release by alien enemies. This must mean an accidental fire, and would seem to imply that the Marshal was not liable in that event if he was not at fault. The writs in the Register against bailees to keep or carry goods all carry the general allegation of negligence, and so do the older precedents of declarations, so far as I have observed, whether they state the custom of the realm or not. But a bailee was answerable for goods wrongfully taken from him, as an innkeeper was for goods stolen from his inn, whether he was negligent or not.
It is true that the Marshal's case speaks of his negligent keeping when the prisoners were released by rebels (although that was far less likely to come from negligence, one would think, than a fire in the prison), and that after Lord Coke's time negligence was alleged even though the goods had been lost by a wrongful taking. So, too, the writ against innkeepers is pro defectu hujusmodi hospitatorum, "for the default of such innkeepers." In these instances neglect only means a failure in fact 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." The allegation is simply the usual allegation of actions on the case, and seems to have spread from the earlier declarations for damage when case supplanted detinue and the use of case became universal. It can hardly have been immaterial to the kind of case for which it was first introduced. But the short reason for disbelieving that the old law gave any warrant 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 on the origin of the admitted exceptions from the risk he assumes. We have already seen 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: against the public enemy the bailee has no remedy over.
As for the act of God, it was a general principle, not peculiar to carriers or to bailees, that a duty was discharged if an act of God made it impossible to perform. Lord Coke mentions the case of a jettison from a Gravesend barge, and another of a party bound to keep up sea-walls against flooding, as subject to the same limitation; and a similar statement about contracts in general will be found in the Year Books. It is another form of the principle which has been laboriously reargued in our own day: that parties are excused from performing a contract which has become impossible before breach, whether because the thing has perished or because of a change in circumstances whose continued existence 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 which classes of bailees are subject to the strict responsibility imposed on common carriers by turning to the Praetor's Edict and then consulting the dictionaries under nautae, caupones, or stabularii. The question of precedent is simply how far the old common law of bailment still survives. We can answer it only by listing 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 the rule has not held its ground even within the limits of the public policy invented by Chief Justice Holt. It is not true today that all bailees for reward exercising a public calling are insurers. No such doctrine is applied to grain elevators or safe-deposit vaults.
How Lord Holt came to distinguish between bailees for reward and others has been shown above. It is more to the point here to notice that his further qualification, exercising a public calling, was part of a protective system which has passed away. One inclined to be hostile 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 suggestion established in another case that the farrier could be sued if he refused to shoe a horse on reasonable request. Common carriers and common innkeepers were liable in the same way, 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." 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, heightened 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—the scattered limbs—still move.
Lord Mansfield stated his views of public policy in terms not unlike those Chief Justice Holt used in Coggs v. Bernard, but he 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," etc.
At the present day it is assumed that the principle is confined in this way, and the argument is shifted to the question of 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 Lord Holt held, but also 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 liable because they were common carriers; all three were 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 simply by 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 on common carriers, as those words are now understood, and on no others, it has never yet been stated. If, on the other hand, there are considerations that apply to a particular class among those so called—for instance, to railroads, which may have a private individual at their mercy, or may wield a power too vast for the common welfare—we do not prove that the 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 to general doctrine, courts may well hesitate to stretch the meaning of those words. Furthermore, notions of public policy that would not leave parties free to make their own bargains are somewhat discredited in most departments of the law. 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 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 the law of carriers at greater length than its share of the subject deserves, 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 this account of the law of bailment was introduced, and to which an understanding of that part of the law is a necessary preliminary.
Possession is a conception only less important than contract. But the interest of the theory of possession does not stop at its practical importance in the body of English law. The theory has fallen into the hands of the philosophers, and with them it has become a cornerstone 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 built on a plan that cannot be reconciled with the a priori doctrines of Kant and Hegel—doctrines, that is, reasoned out in advance of experience. Those doctrines were 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 deeply influenced, if not controlled, by some form of Kantian or post-Kantian philosophy. So everything has combined to give German speculation a special bent, and that bent deprives it of any claim to universal authority.
Why does the law protect possession when the possessor is not also the owner? That is the general problem, and it has greatly exercised the German mind. Kant, as is well known, was deeply influenced in his views on 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 from that day to this one branch or the other of that declaration has supplied the answer to the question why possession should be protected. 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 needs no further explanation; it is to be respected absolutely; and to realize and affirm it is the very end and object of all government. 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 put it, possession is the objective realization of free will. And by Kant's postulate, the will of any individual, once manifested in this way, is entitled to absolute respect from every other individual. It can be overcome or set aside only 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 he seemed to treat the protection of possession as a branch of the protection of the person. But the answer came back that possession is protected against disturbance by fraud as well as by force, and his view is discredited. Those who have been content with humble grounds of expediency seem to have been few, and they have either recanted or fallen out of favor.
The majority have gone in the direction Kant pointed out. 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 on that account rejects reasons drawn from experience. He finds the necessity he is looking for in the freedom of the human will, which the whole legal system does nothing but recognize and carry out. To constrain that will is a wrong, and the wrong must be righted without asking whether the will conforms to law—and so on, in a Kantian vein. 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." So Puchta, a great master: "The will which wills itself, that is, the recognition of its own personality, is to be protected."
Footnote: Further Hegelian discourse may be found in Dr. J. Hutchison Stirling's Lectures on the Philosophy of Law.
The chief variation on this view is Windscheid's, a writer now in vogue. He prefers the other branch of the declaration in the Bill of Rights. He thinks that possession is protected on the same grounds as a person is protected against injuria, a wrong to his personal standing: everyone in the state is the equal of everyone else, and no one shall raise himself over another. Ihering, to be sure, a man of genius, made an independent start. He said that possession is ownership on the defensive: in the owner's interest, the person who is exercising ownership in fact (that is, the possessor) is spared the need of proving his title against someone who stands in an unlawful position. But Bruns, in his later work, answered this well. It assumes that the title of disseisors—those who have wrongfully put another out of his land—is generally worse than the title of the disseisees they put out. That cannot be taken for granted, and it is probably not true in fact.
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 that purpose. Perhaps one more fact, besides those already mentioned, has influenced this reasoning: the sharp division in Continental procedure between possessory actions or defenses, which deal only with who holds the thing, and petitory ones, which deal with who has the right to it. When a defendant in a possessory action is not allowed to set up his own title, a theorist readily finds a mystical importance in possession.
But when does a man become entitled to this absolute protection? On Kant's principle it is not enough that he has custody of a thing. A protection founded on the sacredness of human personality requires that the object have been brought within the sphere of that personality—that the free will have set itself into the object without restraint. There must therefore be an intent to appropriate it: that is, to make it part of oneself, or one's own.
Here the prevailing view of Roman law comes in to fortify principle with precedent. We are told that, of all the people who might have the actual charge or custody of a thing, Roman law recognized as possessor only the owner, or one holding as owner and on his way to becoming owner by the lapse of time. In later days it made a few exceptions on practical grounds. But beyond the pledgee (the person holding goods as security for a debt) and the sequester (a receiver appointed by the court), these exceptions are unimportant and disputed. Some of the Roman jurists say in so many words that depositaries—people with whom goods are left for safekeeping—and borrowers do not have possession of the things entrusted to them. Whether or not the German reading of the sources goes too far, it must be taken into account in examining the German theories.
By denying possession to bailees in general, philosophy cunningly fitted itself to Roman law, and so put itself in a position to claim the authority of that law for the theory—a theory of which the treatment of bailees was merely a corollary. That is why I say 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 the premise or the conclusion held by Kant and his successors.
In the first place, English law has always had the good sense to allow title to be set up as a defense to a possessory action. In the assize of novel disseisin—the old proceeding for recovering land from which one had lately and wrongfully been put out—which was a true possessory action, the defendant could always rely on his title. Even when possession is taken or kept in a way the criminal law punishes, as in forcible entry and detainer (taking or holding land by force), proof of title lets the defendant keep it, and in many cases it 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 Continental distinction in the general rule that title cannot be tried in trespass quare clausum. But this is an exception, and it is commonly put on the ground that the judgment in that action cannot change the property in the land, as a judgment in trespass for chattels or in trover can. The rule that you cannot go into title in a possessory action presupposes great difficulty of proof—the probatio diabolica, or "devil's proof," of the Canon law—delays in the process, and great importance in possession for the time being. All of these mark a stage of society long since 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.
Footnote: Heusler thinks this merely a result of English formalism, and of a narrow reading of the word suo, "his," in the writ, which charged that the defendant had disseised the plaintiff of "his" tenement. But there was no such narrowness in dealing with catalla sua, "his chattels," in trespass, as will be seen below.
In the next place—and this was the bearing of the last Lecture on 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 can exclude their bailor, but also to simple bailees, as they have been called. These have no interest in the chattels, no right to hold them against the owner, and neither give nor receive any reward.
Modern German statutes have followed 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. But I cannot see what is left of a principle that avows itself inconsistent with convenience and with the actual course of legislation. The first call on a theory of law is that it should fit the facts. It must explain the observed course of legislation. And since it is pretty certain that men will make the laws that seem convenient to them without troubling themselves much about what principles their legislation runs into, a principle that defies convenience is likely to wait some time before it finds itself permanently realized.
It remains, then, to look for some ground for protecting possession outside the Bill of Rights or the Declaration of Independence—a ground consistent with the larger scope that modern law gives the conception.
The courts have said little on the subject. In one case it was laid down that the protection of possession was an extension of the protection the law throws around the person, and on that ground it was held that the right to sue in trespass quare clausum did not pass to an assignee in bankruptcy. It has also been said that to deny a bankrupt the action of trover against strangers for goods that came into his possession after his bankruptcy would be "an invitation to all the world to scramble for the possession of them"; and the court referred to "grounds of policy and convenience." 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 whale and it was then killed by another, the first had no claim; but he had the whole whale if he kept fast to it until it was struck by the other, even though it then broke away from the first harpoon. By the custom in the Galápagos, on the other hand, the first striker had half the whale even though he had lost control of the line. The English courts have upheld and acted on each of these customs, 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 the claim is made before cutting in—before the whale is cut up for its blubber. The ground, as Lord Mansfield put it, is simply that without such customs there would have to be a sort of warfare perpetually going on between the adventurers. If courts adopt different rules on similar facts, according to the point at which men will fight in the different cases, that tends, so far as it goes, to shake any 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—drawn from experience—even when that ground is the fact that a certain ideal or theory of government is generally held. Law, being a practical thing, must found itself on actual forces. It is quite enough for the law, therefore, that man, by an instinct he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed of what he holds, either by force or by fraud, without trying to get it back. Philosophy may find a hundred reasons to justify the instinct, but it would make no difference at all if philosophy condemned it and told us to surrender without a murmur. As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly way than to leave people to themselves. If the law did 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 first to say a word on a preliminary question that has been debated with much zeal in Germany: Is possession a fact or a right? The question must be taken to mean possession and right in the sense the law gives those words, and not something else that 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 kept steadily in mind, the question would hardly have been asked.
A legal right is nothing but a permission to exercise certain natural powers and, on 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 to a man, he has a legal right, and the right is the same whether his claim is founded in righteousness or in iniquity. Just so far as possession is protected, it is as much a source of legal rights as ownership is when ownership secures the same protection.
Every right is a consequence the law attaches to one or more facts that the law defines. Wherever the law gives anyone special rights not shared by the body of the people, it does so because certain special facts, not true of the rest of the world, are true of him. When a group of facts singled out by the law in this way exists in the case of a given person, he is said to be entitled to the corresponding rights. What is meant is that the law helps him to constrain his neighbors, or some of them, in a way it would not if all the facts in question were not true of him. It follows that any word which denotes such a group of facts connotes the rights attached to it as legal consequences, and any word which denotes the rights attached to a group of facts connotes the group of facts in the same way.
The word "possession" denotes such a group of facts. So when we say of a man that he has possession, we state directly that all the facts of a certain group are true of him, and we convey indirectly, 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 this. Possession denotes the facts and connotes the consequence; property always, and contract with more uncertainty and wavering, denote the consequence and connote the facts. When we say that a man owns a thing, we state 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, just like every other. It does not matter at all that one word puts the accent on one element and the other two words on the other. We are not studying etymology, but law. There are always two things to ask: first, what are the facts that make up the group in question; and then, what consequences does the law attach to that group. The first generally offers the only difficulties.
So it is almost a tautology to say that the protection the law attaches to possession as its consequence is as truly a right, in the legal sense, as the consequences attached to adverse holding for the period of prescription—the long, open holding of another's property that ripens into title—or to a promise made for value or under seal. If the statement needs dramatic reinforcement, I may add that possessory rights pass by descent or by will, as well as by conveyance, and that in some of the States they are taxed as property.
We are now ready to analyze possession as the common law understands it. To discover the facts that make it up, it will be best to study them at the moment when possession is first gained. For then they must all be present, in the same way that both consideration and promise must be present at the moment a contract is made. But when we turn to the continuance of possessory rights—or, as it is commonly put, the continuance of possession—all schools will agree that fewer than all the facts needed to call those rights into being must remain true at present 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 he must have a certain intent. These relations and this intent are the facts we are looking for.
The physical relation to others is simply a relation of manifested power that reaches as far as the intent does, and little will need to be said about it once the nature of the intent is settled. When I come to the intent, I shall not attempt an analysis like the one pursued earlier with regard to intent as an element of liability. The principles worked out about intent in that connection have nothing to do with 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 perhaps be outwardly manifested; but all theories of the grounds on which possession is protected seem to agree in requiring that it be actual—subject, of course, to the necessary limits of legal investigation.
But besides our power and intent with regard to 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 safely under lock and key in jail, the person holding the key would not possess the swallows that flew over the prison. Cases of capture illustrate this element, although no doubt where the line is drawn is affected by the degree of power gained against other people, as well as by the power gained over the object. Roman law 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 the game and carry it off if he can. So it has been held that no action lies against a person for killing and taking a fox that another man had been pursuing, and that was at that moment actually in view of the man who had found it, started it, and chased it. The Court of Queen's Bench went so far as to decide, in spite of a jury's verdict the other way, that fish nearly surrounded by a seine—a large fishing net—with an opening of seven fathoms between its ends, where boats were stationed to frighten them from escaping, had not been reduced to possession as against a stranger who rowed in through the opening and helped himself. But the difference between power over the object that is enough for possession and power that is not is plainly one of degree only, and the line may be drawn at different places at different times, on the grounds just mentioned. Thus we are told that the legislature of New York enacted in 1844 that anyone who started and pursued deer in certain counties of that State should be deemed in possession of the game as long as he kept up fresh pursuit of it, and to that extent modified the New York decisions just cited. So too, while Justinian decided that a wild beast so badly wounded that it might easily be taken must actually be taken before it belongs to its captors, 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 the claim is made before cutting in.
We may leave the physical relation to the object with these few examples, because it can rarely come into question except with 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 the reasons I have already given. The best-known theories have been framed as theories of the German interpretation of Roman law, under the influence of some form of Kantian or post-Kantian philosophy. The type of Roman possession, in German opinion, was that of an owner, or of one on his way to becoming owner. Following this out, Savigny—the only writer on the subject whom English readers generally know—said that the animus domini, the intent to deal with the thing as owner, is in general necessary to turn a mere physical holding into possession in the legal sense. We need not stop to ask whether this modern form, or the Greek phrase of Theophilus and the Greek sources (animus dominantis or animus dominandi, the intent of one who is master), is more exact. Either one excludes most bailees and termors—tenants for a term of years—from the list of possessors, as the civilians and canonists (the scholars of Roman and of Church law) exclude them, and as the German theories must.
Footnote: I shall use animus domini here as a short way of indicating the general nature of the intent required, even by those who deny that the expression fits; and especially because Savigny's opinion is the one English writers have adopted.
The effect of this exclusion, as interpreted by the Kantian philosophy of law, has been to lead the German lawyers to regard 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, so that it has become part of his very self, the outward manifestation of his freedom. Once the possessor's will is conceived as self-regarding in this way, the intent with which he must hold is pretty clear: he must hold for his own benefit. Furthermore, the self-regarding intent must rise to the height of an intent to appropriate; for otherwise, it seems to be implied, the object would not truly be brought under the possessor's personality.
The grounds for rejecting the tests of Roman law have been shown above. Let us begin afresh. Legal duties are logically prior to legal rights. What their relation may be to moral rights, if there are any, and whether moral rights are not in the same way the logical offspring of moral duties, are questions that do not concern us here. They belong to the philosopher, who approaches the law from outside, as one 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 on it from within, or logically, arranging and distributing it in order, from its summum genus, its highest class, down to its infima species, its narrowest kind, so far as that can be done. Legal duties, then, come before legal rights. To put it more broadly, and to avoid the word duty, which is open to objection: the direct working of the law is to limit, in certain specified ways, the freedom of action or choice of a greater or smaller number of persons. The power of removing or enforcing this limitation, which is generally entrusted to certain other private persons—in other words, a right corresponding to the burden—is not a necessary or universal counterpart. 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 that lies before me. That is a physical power I have without the law's help. What the law does is simply to prevent other men, to a greater or lesser extent, from interfering with my use or abuse. And this analysis and example apply to possession as well as to ownership.
Since that is how the law directly works in the case of possession, one would think that the intent we are looking for is the intent that runs most nearly parallel to it. If what the law does is to keep others from interfering with the object, it would seem that the intent the law should require is an intent to exclude others. I believe that such an intent is all the common law thinks necessary, and that on principle no more should be required.
It may be asked whether this is not simply the animus domini seen from the other side. Even if it were, it would still be better to look at the front of the shield than at the back. But it is not the same thing, if we give the animus domini the meaning the Germans give it—the meaning that denies possession to bailees in general. The intent to appropriate a thing, or to deal with it as owner, can hardly exist without an intent to exclude others, and something more besides; but the intent to exclude may very well exist where there is no intent to hold as owner. A tenant for years means to exclude everyone, the owner included, until his term runs out; yet he has not the animus domini in the sense just explained. Still less has a bailee with a lien, who does not even mean to use the thing, but only to keep it until he is paid. 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 any other bailment that the owner can end at pleasure. We may therefore say that even the intent to exclude need not be as wide as the animus domini would imply. If a bailee intends to exclude strangers to the title, that is enough for possession under our law, although he is perfectly ready to hand the thing back to its owner at any moment. It is of the essence of the German view, by contrast, that the intent must not be relative: it must be an absolute, self-regarding intent to take the benefit of the thing. Again, even if the motives, wishes, and intentions most present to a possessor's mind were all self-regarding, it would not follow that his intent toward others was not the important thing in analyzing 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 at all, and he holds solely for the owner's benefit.
Besides the cases of bailees and tenants, there is another class of cases which will probably—though not necessarily—be decided one way or the other according to whether we adopt the test of an intent to exclude or the test of the animus domini. Bridges v. Hawkesworth will serve as a starting point. There a customer dropped a pocketbook on the floor of a shop, and another customer picked it up before the shopkeeper knew anything about 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 intended to appropriate it; and, having invited the public into his shop, he could not have intended to exclude them from it. But suppose the pocketbook had been dropped in a private room. How should the case be decided then? 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 that the object exists.
In McAvoy v. Medina, a pocketbook had been left on a barber's table, and it was held that the barber had a better right than the finder. The opinion is rather obscure. It draws a distinction between things deliberately put down on a table and things dropped on the floor. It may possibly rest on the ground that, when an owner leaves a thing in that way, there is an implied request to the shopkeeper to look after it, which gives him a better right than someone who actually finds it before he does. This is rather strained, however, and perhaps the court thought that the barber had possession as soon as the customer left the shop. A little later the same court heard a suit for a reward offered to whoever found a pocketbook. The plaintiff had discovered it where the owner had left it, on a desk provided for customers in a bank, outside the teller's counter. The court said that this was not the finding of a lost article, and that "the occupants of the banking house, and not the plaintiff, were the proper depositaries of an article so left." This language might seem to imply that the plaintiff was not the first person to get possession after the owner lost it; and that, although the floor of a shop may be likened to a street, the public are to be treated as excluded from a shop's desks, counters, and tables except for the particular use allowed them. Perhaps, however, the case decides only that the pocketbook was not lost within the terms of the offer.
I should not have thought it safe to draw any conclusion from the English cases on wreck, which are tangled up with questions of prescription and other rights. But the exact point seems to have been decided here in Massachusetts. For it has been held that, if a stick of timber washes ashore on a man's land, he thereby acquires a "right of possession" as against an actual finder who comes onto the land to carry it off. A right of possession is said to be enough to support trespass; but the court seems to have meant possession itself by the phrase. Chief Justice Shaw states the question as which of the parties had "the preferable claim, by mere naked possession, without other title," and there does not seem to have been any right of possession in the case unless there was actual possession.
In a criminal case, where a stranger took iron from the bottom of a canal, the indictment was held rightly to lay the property in the canal company, although it does not appear that the company knew the iron was there, or had any lien on it.
The only intent concerning the thing that can be found in such cases is the general intent which the occupier of land has to exclude the public from the land, and so, as a consequence, from whatever is on it.
The Roman lawyers would probably have decided all these cases the other way, although they cannot be supposed to have worked out the refined theories that have since been built on what remains of their writings.
I may return here to the case of goods delivered in a locked chest, or in a bale, and the like. It is a rule of the criminal law that if the bailee of such a chest or bale wrongfully sells the whole chest or bale, he does not commit larceny; but if he breaks bulk, he does, because in the first case he does not commit a trespass and in the second he does. The reason sometimes given is that by breaking bulk the bailee ends the bailment, so that the goods at once go back into the possession of the bailor. This is perhaps an unnecessary fiction, as well as an inadequate one. 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 it were not; and this theory was applied to civil as well as criminal cases. The bailor has the power and the intent to exclude the bailee from the goods, and may therefore be said to be in possession of them as against the bailee.
Footnote: It may not be necessary to go quite so far, however, and I do not rely on these cases as establishing the theory.
On the other hand, a case in Rhode Island goes against the view taken here. A man bought a safe and then, wanting to sell it again, sent it to the defendant, giving him leave to keep his books in it until it was sold. The defendant found some banknotes stuck in a crack in the safe. When this came 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 upheld his refusal. I venture to think this decision wrong. Nor would my opinion change if we assumed—what the report does not make perfectly clear—that the defendant received the safe as a bailee, and not as a servant or agent, and that his permission to use it was general. The court's argument turns on the plaintiff's not being a finder. The question is whether he needed to be one. It is hard to believe that, if the defendant had stolen the notes out of the safe while it was in its owner's hands, the property could not have been laid in the owner of the safe, or that the owner could not have maintained trover for them had they been converted in those circumstances. Sir James Stephen seems to have drawn a similar conclusion from Cartwright v. Green and Merry v. Green; but I believe there is no warrant for it in the cases, and still less for the reason he suggests.
Footnote: Stephen says it is "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, and not fitted to the English law, as has been shown.
It will be understood, however, that Durfee v. Jones, the Rhode Island case, is perfectly consistent with the view maintained here of the general nature of the intent required. It touches only the subordinate question whether the intent to exclude must be aimed at the specific thing, or may be included, even unconsciously, in a larger intent—as I am inclined to believe it may.
So far nothing has been said about the custody of servants. It is a well-known doctrine of the criminal law that a servant who criminally converts his master's property, entrusted to him and in his custody as a servant, is guilty of theft, because he is regarded as having taken the property out of his master's possession. That is the same as saying that a servant who has custody of his master's property as a servant does not have possession of it, and the Year Books say exactly that.
There is an odd distinction by which, if the servant receives the thing from some third person for his master, the servant has the possession, and so cannot commit theft. The old cases make it more rational. For the distinction they draw is that while the servant is in the house or with his master, the master keeps possession; but if the master hands 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. In this more intelligible form the rule would not prevail today. But one half of it—that a guest at a tavern does not have possession of the plate he is served on—is no doubt still law, for guests in general are likened to servants in their legal position.
Footnote: It may be doubted whether the old law would have sanctioned the rule in the modern form.
Footnote: Guests have been said to be a part of the family pro hac vice—for the occasion.
Outside the criminal law there are few English decisions on whether a servant has possession. But the Year Books suggest no difference between civil and criminal cases, and there is an almost unbroken tradition of courts and approved writers that he has not, in any case. A master has maintained trespass against a servant for converting cloth the servant was employed to sell, 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.
Footnote: Some of the American cases have been denied, on the ground that the custodian was not a servant.
But it may be asked how denying possession to servants can be squared with the test proposed here; and it will be said, truly, that a servant has as much intent to exclude the world at large as a borrower does. The law of servants is unquestionably at odds with that test. And there can be no doubt that those who have built their theories on the Roman law have been led by this fact, together with the Roman doctrine about bailees in general, to look for their formula of reconciliation where they have. But in truth the exception for servants stands on purely historical grounds. A servant is denied possession not because of anything peculiar in his intent toward the things in his custody—either toward his master or toward other people—that sets him apart from a depositary, but simply as one of the incidents of his status. It is familiar that the status of a servant keeps many marks of the time when he was a slave. The master's liability for his servant's torts is one instance. The present rule is another. A slave's possession was his owner's possession, on the practical ground of the owner's power over him, and because the slave had no standing before the law. The notion that his personality was merged in that of the head of his family survived the era of emancipation.
I have shown in the first Lecture that agency grew out of this earlier relation in the Roman law, by extending to a freeman, pro hac vice, ideas drawn from the law of slaves. The same is true, I think, of our own law, whose later development seems to have been largely under Roman influence. As late as Blackstone, agents appear under the general heading of servants, and the first precedents cited for the special 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."
Footnote: Factors are always called servants in the old books, and bailiffs are spoken of in the same way.
It is quite true that in modern times many of the effects of either relation—master and servant, or principal and agent—can be explained as the result of acts done by the master himself. If a man tells another to make a contract in his name, or orders him to commit a tort, no special idea is needed to explain why he is held liable; although even in such cases, where the go-between was a freeman, the law did not reach that conclusion until it had become fairly mature. But if Agency deserves to stand as a title of 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 a contract he authorized were all, we might as well have a chapter on ink and paper as on agents. But it is not all. Even in the field of contract we find the striking doctrine that an undisclosed principal—one whose existence the other party did not know of—has the rights as well as the obligations of a known contractor: he can be sued, and, more remarkable still, he can sue on his agent's contract. The first precedent cited for the rule that a promise made to an agent may be pleaded as a promise to the principal is a case of master and servant.
Footnote: These rules seem to be somewhat modern even as to servants. In the earlier Year Books a master's liability for debts his servant contracted is very narrowly limited.
Since my present object is only to show what the doctrine of identification—the treating of servant and master as one person—means for the theory of possession, it would be out of place to consider at any length how far that doctrine must be called on to explain a principal's liability for his agent's torts, or whether some more reasonable rule governs other cases than the one applied where the actor has a fairly definite status as a servant. I allow myself a few words, because I shall not be able to come back to the subject.
If the courts had so far treated a master's liability for his servant's torts 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 that has not happened. It has been extended by analogy to new relations. It exists where the principal does not stand toward the actual wrongdoer in the position of paterfamilias, the Roman head of the household. A man may be held liable for another where the relation was so passing as to rule out any idea of status—as for the negligence of someone else's servant acting for the defendant for the moment, or of a neighbor helping him as a volunteer. And, so far as is known, no principal has ever escaped on the ground of the dignity of his agent's employment. The courts habitually speak as if the same rules applied to brokers and other agents as to servants properly so called. Indeed, it has been laid down in so many words that the liability of employers is not confined to servants, although the usual cases are, of course, those of menial servants and the like, who could not pay a large verdict.
Footnote: I am inclined to think that this extension has been largely due to the influence of the Roman law. See Lecture I, and notice the part that the precedents about fire have played in shaping the modern doctrine of master and servant. Lord Holt's examples in one of the leading cases come from the Roman law; and in another, Doctor and Student is referred to for the general principles of liability—and Doctor and Student states Roman law.
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. We may see such conflicts between tradition and the instinct of justice on the question of identifying a principal who knows the truth with an agent who makes a false statement, so as to make out a fraud, as in Cornfoot v. Fowke; or on the question, argued in many English cases, of a principal's liability for his agent's frauds. But so long as the fiction at 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.
Footnote: One judge has commented on Cornfoot v. Fowke in the same way as the text. The other grounds for that decision do not matter here.
Footnote: The objections which Baron Bramwell raises to holding one man liable for the frauds of another are really objections to the peculiar consequences attached to the relation of master and servant in general, and the same learned judge has urged them in that more general form.
In an article in the American Law Review I referred to a phrase of Godefroi's about agents: eadem est persona domini et procuratoris—"the master and the agent are the same person." This idea of a fictitious unity of person has been called a darkening of counsel in a recent useful book. But it has the approval of Sir Henry Maine, and I believe 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 that rules survived in practice which lost their true meaning when the people they governed ceased to be slaves. There is no difficulty 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 just as clear when we say that a free servant, in his relations as a servant, is in many respects likened by the law to a slave—not, of course, to his own harm as a freeman. The next step is simply that others who are not servants in a general sense may be treated as if they were servants in a particular connection. That is the progress of ideas as history shows it to us. And that 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 appointed to hold possession in his principal's name would not be treated as having the legal possession, or as entitled to bring trespass. But after what has been said, no opinion can be given on whether the law would go that far unless precedent shows it. Notice the nature of the case. It is that of an agent appointed 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 name, as we say, following the Roman idiom, and the servant or agent holding as such does not.
Footnote: Compare the Roman rule with the passage from Blackstone quoted above: "He possesses in whose name the thing is possessed; the agent lends his services to another's possession."
Even if space allowed, it would hardly be worth while 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; yet nothing can be clearer than that goods in his custody are in his possession. Again, where goods remain in the custody of the seller, the courts have confused the setting apart of the goods for the contract, and the buyer's acceptance of them, with delivery. Our law has adopted the Roman doctrine that there may be a delivery—that is, a change of possession—merely by a change in the character in which the seller holds. But it has not always imitated the caution of the civilians as to what amounts to such a change. Bailees are constantly spoken of as if they were agents to possess for someone else—a confusion made easier by the fact that they generally are agents for other purposes. Finally, there are the cases that attribute possession to a buyer of goods in the hands of a middleman, without asking whether the middleman holds in his own name or in the buyer's. They generally reach the right result, no doubt, but they have added to the confusion of thought upon the subject.
Footnote: The Digest puts the Roman rule in so many words: what I possess in my own name I can come to possess in another's name; I do not thereby change the ground of my possession, but I cease to possess, and by my service I make another the possessor. For to possess is not the same as to possess in another's name: he possesses in whose name the thing is possessed, and the agent merely lends his service to another's possession. This shows that the seller changed possession by holding in the name of the buyer, as the buyer's agent to possess.
Footnote: It should be kept in mind also that the Roman law denied possession to bailees.
German writers are a little apt to value a theory of possession in proportion to how broad a line it draws between juridical possession, the kind the law protects, and mere 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 to agents holding as such—if, indeed, agents lack those remedies—are merely historical. The general theory can only take account of that denial as an anomaly. It will also be seen that servants and depositaries have often been likened to each other on the ground that both hold for the benefit of another and not for themselves. That ground has had no influence whatever on our law, which has always treated depositaries as having possession. Nor is it 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 appears so in its manifestation. 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. Narrowed in this way, it might be suggested that the manifestation of power matters only as a manifestation of intent. But the two things are distinct, and the power becomes decisive when there are two conflicting intents at the same time. Thus, two parties, neither of whom had title, each claimed a crop of corn against the other, and they cultivated it by turns. The plaintiff gathered the corn and threw it in small piles in the same field, where it lay for a week; then each party at the same moment began to carry it away. It was held that the plaintiff had not gained possession. But if the defendant's first interference had come after the gathering into piles, the plaintiff would probably have recovered. So, again, trustees in possession of a schoolroom put in a schoolmaster. He was afterwards dismissed, but the next day, June 30, he re-entered by force. On the fourth of July he was required by notice to leave, and he was not thrown out until the eleventh. It was considered that the schoolmaster never got possession as against the trustees.
We are led, in this connection, to the subject of how long the rights acquired by gaining possession continue. To gain possession, as we have seen, there must be certain physical relations, as explained, and a certain intent. It remains to ask how far these facts must go on being true of a person at each moment in order that he may keep the rights which follow from their presence. The prevailing view is Savigny's. He thinks there must always be the same animus as at the moment of acquisition, and a constant power to reproduce at will the original physical relations to the object. Everyone agrees that it is not necessary to have a present power over the thing at every moment; otherwise one could possess only what was under his hand. But it is a question whether we cannot dispense with even more. The facts which constitute possession are by their nature capable of remaining 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 for two things: the presence of all the facts needed to gain it, and the condition of a man who, although some of those facts no longer exist, is still protected as if they did. Consequently it has been only too easy to treat the end of the facts as the loss of the right, as some German writers very nearly do.
But it does not follow, from the single circumstance that certain facts must come together to create the rights incident to possession, that they must continue in order to keep those rights alive. It follows no more than it does from the need for a consideration and a promise to create a right in contract that the consideration and promise must go on passing between the parties until the moment of performance. When certain facts that confer a right have once been made manifest, 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—although the reasons for conferring the particular right may weigh heavily in deciding which facts shall count as inconsistent. The end 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 losing the power to reproduce the original physical relations shall affect the continuance of the rights. That loss does not stand on the same ground as a new possession taken adversely by another. We have adopted the Roman law as to animals ferae naturae—wild by nature—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, where a man found logs afloat and moored them, and they broke loose again and floated away and were found by another, it has been expressly decided that the first finder kept the rights that sprang from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up.
Footnote: Bruns comes to the same conclusion on practical grounds of convenience, although on theory he utterly repudiates it. I must refer to what I said above about these conflicts between theory and convenience.
Suppose that the finder of a purse of gold has left it in his country house, which is lonely and lightly barred, and that 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 intends to go in and take it at once. The finder's power to reproduce his former physical relation to the gold is rather limited. Yet I believe no one would say that his possession was at an end until the burglar, by an overt act, had manifested his power and intent to exclude others from the purse. The reason is the same one already given about 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 by the tests adopted in this Lecture the owner of the house has a present possession in the strictest sense. He lacks the power which Savigny says is necessary, but he has the present intent and power to exclude others.
It is conceivable that the common law should go so far as to treat possession the same way as a title, and should hold that once possession has been acquired, the rights acquired with it continue to prevail against all the world but one, until something has happened that would be enough to divest ownership.
The possession of rights, as it is called, has been a battleground on the Continent for centuries. It is not uncommon for German writers to go so far as to maintain that there may be a true possession of obligations. This seems to fit a general view that possession and right are, in theory, terms of equal reach: the mastery of the will over an external object in general—whether that object is a thing or another will—is called right when it accords with the general will and is therefore lawful, and is called possession when it exists merely in fact. Bearing in mind what was said on the question whether possession was a fact or a right, it will be seen that such an opposition 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 of a mere possessor are less extensive than those of an owner.
Footnote: A learned writer of an older day asks why a doctor has no possessory action if you stop employing him, and answers: "I feel that the action does not lie; but I only feel it, and I could not tell you why if you threatened me with death. You, reader, if you are wise, supply the reasons for the decision."
Conversely, rights spring from certain facts supposed to be true of the person entitled to them. Where these facts are such that they can be made true of different persons one after another, as in the case of the occupation of land, the corresponding rights may be enjoyed one after another. But when the facts are past and gone—such as the giving of a consideration and the receiving of a promise—no one can set up a claim to the resulting rights except the party of whom the facts were originally true: in the case supposed, the original contractee, the one to whom the promise was made. For no one but the original contractee can fill the situation from which those rights spring.
English readers will probably grant that one of the essential facts consists in a certain relation to a material object. But this object may be a slave as well as a horse; and conceptions that began in this way may be extended, by a survival, to free services. It is worth noticing that even Bruns, in applying his theory, does not seem to go beyond cases of status and cases where, in common language, land is bound for the services in question, as it is for rent. Free services are treated so far like a slave's, even by our law, that the master has a right of property in them against all the world; so 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 a contract. Perhaps something of that sort is to be seen when a parent recovers for the seduction of a daughter over twenty-one, although there is no actual contract of service. So, too, 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 land as to be capable of possession and of disseisin, and they could be recovered like land by assize.
But the most important case of the so-called possession of rights in our law, as in the Roman, concerns easements—rights to make some limited use of another's land, such as a right of way. 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 is true possession, however, it is a limited possession of land, not of a right, as others have shown. Where an easement has actually been created, whether by deed or by prescription, it is undoubtedly true that anyone in possession of the dominant estate—the land the easement serves—would be protected in its enjoyment. But he has not been protected in the past on the ground that the easement was in itself an object of possession; the protection comes from a survival of precedents explained in Lecture XI. So to test whether there is a mere possession of this sort which the law will protect, we will take a way used in fact for four years, over which no easement has yet been acquired, and ask whether the possessor of the would-be dominant land would be protected in his use as against third persons. It is conceivable that he should be, but I believe that he would not.
Footnote: If the law should protect a possessor of land in the enjoyment of water flowing to it, it would do so because the use of the water was regarded as part of the enjoyment of that land; this would by no means imply that it would do the same in the case just put, of a way over another's land.
The chief objection to the doctrine seems to be that there is almost a contradiction between two 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 world from interfering with that. Reconciling the two takes somewhat artificial reasoning. However, it should be borne in mind that the question in every case is not what the actual power of the parties was, but what their manifested power was. If their manifested powers stood balanced in this way, the law might recognize a kind of split possession. But if the law does not recognize it until a right has been acquired, then the protection of a disseisor in the use of an easement must still be explained by the facts set out in Lecture XI.
The consequences attached to possession are substantially those attached to ownership, subject to the question of how long possessory rights continue, which I have touched on above. Even a wrongful possessor of a chattel may recover full damages for its conversion by a stranger to the title, or get back the specific thing.
It has been supposed, to be sure, that a "special property" was necessary in order to maintain replevin—the action to recover goods wrongfully taken—or trover. But modern cases establish that possession is enough, and an examination of the sources of our law proves that special property never meant anything more. It has been shown that the procedure Bracton describes for recovering chattels lost against one's will, like its predecessor on the Continent, was based on possession. Yet Bracton, in the very passage in which he says so expressly, uses a phrase which, but for that explanation, would seem to mean ownership: "Poterit rem suam petere"—he may claim his thing. The writs of later days used the same language. When it was objected, as it often was, that a bailee's suit for the taking of bona et catalla sua—"his goods and chattels"—should instead have been for bona in custodia sua existentia—"goods being in his custody"—the answer was always that the clerks of the Chancery would not frame a writ in that form.
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 try to reconcile, on paper, that formal word with the fact, by saying that although the plaintiff did not have the general property in the chattels, he had a property as against strangers, or a special property. This is what happened, and, curiously enough, two of the earliest cases in which I have found the phrase used are cases of a depositary and of a borrower. Brooke says that a wrongful taker "has title against all but the true owner." In this sense the special property would have been better described as a "possessory property"—as indeed it was, when it was decided that in an indictment for larceny the property could be laid in the bailee from whom the goods were taken.
I have explained the inversion by which a bailee's right of action against third persons was supposed to rest on his responsibility over to the owner, although in truth that right was the foundation of the responsibility, and arose simply from his possession. The step was short from saying that bailees could sue because they were answerable over, to saying that they had the property as against strangers, or a special property, because they were answerable over; and next to saying that they could sue because they had a special property and were answerable over. And that is how the notion that special property meant something more than possession, and was required in order to bring 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 answerable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise for a pledgee, if he had kept the pledge with his own goods and the two were stolen together. 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, so that the ordinary relation of bailment did not exist, or that his undertaking was only to keep it as he kept his own goods. The same expression was used in discussing the pledgee's right to assign the pledge. In this sense the term applied only to pledges. But its meaning in that particular connection was easily carried over into the others in which the phrase was used, with the result that the special property required to maintain the possessory actions was supposed to mean a qualified interest in the goods.
As to the legal consequences of possession, it only remains to mention that the rules laid down for chattels also hold for land. It is true that the plaintiff in ejectment—the action to recover land—must recover on the strength of his own title as against a defendant in possession. But it is now settled that prior possession is enough if the defendant stands on his possession alone. Possession is of course enough for trespass. 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 about ownership and the ideas akin to it. Following the order of analysis used for 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 way of gaining ownership is by conveyance from a previous owner. But that presupposes an 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 man who takes fish from the ocean, has not merely possession but a title good against all the world. But the most common way 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 is the admiralty's proceeding in rem—against the thing itself—which conclusively disposes of the property in its power. When the court sells or condemns the property, it does not deal with this man's title or that one's; it gives a new title paramount to all previous interests, whatever they may be. The other and more familiar case is prescription, where an open, adverse holding continued for a certain time has a similar effect. A title by prescription is not a presumed conveyance from this or that owner alone; it extinguishes all previous and inconsistent claims. The two meet in the ancient fine with proclamations—a collusive lawsuit publicly proclaimed—where the combined effect of the judgment and the lapse of a year and a day was to bar all claims.
So, too, the legislature may give rights like those of ownership to persons of whom some other set of facts is true. A patentee is an example: one to whom the government has issued a certain instrument, and who has in fact made a patentable invention.
But what are the rights of ownership? They are substantially the same as those incident to possession. Within the limits set by policy, the owner is allowed to exercise his natural powers over the thing without interference, and is more or less protected in excluding other people from interfering. 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 about the effect of having no independent and original title, but coming in under a title already in existence, or about the ways 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, Lectures X and XI.
The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times that there is less need here than elsewhere for historical research. It has been so ably discussed that there is less room here than elsewhere for essentially new analysis. But a short account of how the modern doctrines grew up, whether necessary or not, will at least be interesting. And an analysis of their main characteristics cannot be left out, and may show some new features.
It is popularly supposed that the oldest forms of contract known to our law are covenant, the action on a promise made under seal, and debt, the action for a fixed sum owed. 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 dress, at least raise the question whether they did not appear just as early.
One of these, the promissory oath, is no longer the foundation of any rights in private law. It is still used, but mainly as a solemnity that goes with entering upon a public office. The judge swears that he will do justice according to law; the juryman, that he will find his verdict according to law and the evidence; the newly naturalized 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 sound paradoxical to name the contract of suretyship—the promise of one person to answer for another's debt or default. Suretyship nowadays is only an accessory obligation. It presupposes a principal undertaking by someone else, and so far as the nature of the contract goes, it is just like any other. But, as Laferrière has pointed out, and very likely earlier writers too, the surety of ancient law was the hostage. And the giving of hostages was by no means confined to dealings between nations.
In the old verse romance of Huon of Bordeaux, Huon has killed the son of Charlemagne, and the Emperor requires him, as the price of forgiveness, to perform a series of seeming impossibilities. Huon sets out on the task, leaving twelve of his knights behind as hostages. He comes back successful, but at first the Emperor is made to believe that his orders have been disobeyed. At that Charlemagne cries out, "I summon hither the pledges for Huon. I will hang them, and they shall have no ransom." In the same way, when Huon is to fight a duel to establish the truth or falsehood of a charge against him, each side begins by producing some of his friends as hostages.
When hostages are given for a duel that is to settle the truth of an accusation, the transaction comes very close to giving the same kind of security in the trial of a case in court. That was in fact the usual course of Germanic procedure. It will be remembered that law first appeared as a substitute for the private feuds between families or clans. A defendant who would not peaceably submit to the court's jurisdiction might be put outside the protection of the law, so that any man might kill him on sight. But at first there was no way to secure the compensation the plaintiff was entitled to unless the defendant chose to give security for it.
The English customs that have come down to us are somewhat more advanced, but one of the noticeable features of 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 imaginary pledges who stood surety for the plaintiff that he would prosecute his action. A more significant example is the rule, repeated in many of the early laws, that a defendant accused of a wrong must either find security or go to prison. This security was the hostage of earlier days. Later, when the actions for punishment and the actions for redress were separated, it became the bail of the criminal law—the persons who answer for a prisoner's appearance in return for his release. And the liability was still conceived of in the same way as when the bail actually put his own body into the power of the party he secured.
One of Charlemagne's additions to the Salic Law speaks of a freeman who has committed himself to the power of another by way of surety. The very phrase is copied in the English laws of Henry I. We have seen what this meant in the story of Huon of Bordeaux. The Mirror of Justices says that King Canute used to judge the mainprisors—the sureties who took a man out of custody on their undertaking for him—in the same way as their principals when the principals failed to appear in court. King Henry I, it says, confined Canute's rule to mainprisors who had consented to the crime.
As late as the reign of Edward III, Shard, an English judge, first states the law as it still is—that bail are a prisoner's keepers, and shall be charged if he escapes—and then observes that some say the bail shall be hanged in his place. That was the law in the parallel case of a jailer. The old notion can still be traced in the form modern writers give for the undertaking of bail in a case of felony. The bail are bound "body for body," and modern law-books find it necessary to explain that this does not make them liable to the principal offender's punishment if he fails to appear, but only to a fine. The contract also differed from our modern ideas in the way it was made. It was simply a solemn admission of liability in the presence of an officer authorized to take it. The bail did not have to sign, and the person bailed did not have to bind himself as a party.
But these peculiarities have been modified or abolished by statute. I have dwelt on the case not so much because it is a special form of contract unlike all others, as because the history of its origin shows one of the first appearances of contract in our law. It can be traced to a gradual growth of faith that the hostage would honorably surrender himself if the occasion arose, and to the consequent relaxing of actual imprisonment. An illustration may be found in the parallel way of dealing with the prisoner himself. His bail, into whose hands 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 he is surrendered. It will be noticed that this form of contract looked to the body of the contracting party as the satisfaction. So did debt as the Roman law of the Twelve Tables dealt with it, and for the same motive, although by a different process.
Debt is another and more popular candidate for the honor of being first. Since the time of Savigny, the first appearance of contract in both Roman and German law has often been traced to a sale that by some accident was left incomplete. The question does not seem to have much philosophical significance. To explain how mankind first learned to promise, we would have to go to metaphysics and find out how it ever came to frame a future tense. The nature of the particular promise that happened to be enforced first in a given system can hardly lead to any truth of general importance. But the history of the action of debt is instructive, if in a humbler way. One must know something about it to understand the enlightened rules that make up the law of contract today.
In Glanvill's treatise the action of debt is already one of the well-known remedies. But the law of those days was still in a somewhat primitive state, and it is easy to imagine that a form of action going back that far was not founded on any very delicate distinctions. It was, as I shall try to show directly, simply the general form in which any money claim was collected. The one exception was unliquidated claims—claims whose amount had not been fixed—for damage done by force, and for those there was the equally general remedy of trespass.
Some have thought the action was adopted from the procedure of the Roman law, which was then more civilized. It is a natural opinion, since all the early English law-writers take their phrasing and their classifications from Rome. Still, it seems much more probable that the action is of pure German descent. It has the features of the primitive procedure found on the Continent, as Laband describes it.
The substance of the plaintiff's claim, as set out in the writ of debt, is that the defendant owes him so much and wrongfully withholds it. For a claim framed like that, it does not matter 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 at all. It states a bare conclusion of law, not the facts from which the conclusion follows and the liability arises. The old German complaint was the same: "A owes me so much."
It was characteristic of German procedure that the defendant could meet that complaint by answering, in an equally general form, that he did not owe the plaintiff anything. If the plaintiff wanted to keep the defendant from escaping in that way, he had to do more than simply allege a debt. In England, if the plaintiff had nothing to show for his debt, the defendant's denial put him out of court. And even if he had something, he could still 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 pushed aside for centuries by a later remedy, assumpsit, was the survival of this relic of early days.
Finally, in England as in Germany, debt for withholding money was the twin brother of the action for wrongfully withholding any other kind of chattel. In either case the gist of the complaint was the same.
It seems strange that this crude product of the infancy of law should matter to us today. 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 more. Debt throws the most light on the doctrine of consideration.
Our law does not enforce every promise a man may make. Promises made as ninety-nine out of a hundred are made—by word of mouth or by 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 the Roman law by the Chancery, and that after some modification there it passed into the common law.
But this account of the matter is at least questionable. So far as the words go, I do not know of consideration being plainly 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. I am inclined to think Fleta's statement is not to be trusted. But a careful look at the cases in the Year Books, in their chronological order, 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 references to what a promisor was to get for his undertaking was in the action of assumpsit. But the doctrine certainly did not start there. The first mention of consideration in connection with equity that I have seen takes the form of quid pro quo, and it comes after the requirement had been thoroughly established in debt.
Footnote: Glanvill's phrase "justa debendi causa," a just cause of owing, seems to me remote from consideration.
Consideration was never required for contracts under seal—unless Fleta is to be trusted against the great weight of nearly contemporary evidence. That single fact goes far to show that the rule cannot have begun as a rule of substantive law, adopted on grounds of policy. And the other way round, the fact that the doctrine coincides with a peculiar mode of procedure points very strongly to the likelihood 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 consider what consequences naturally followed from them. So it will be worth examining 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 that might be raised against it.
I said a moment ago that, 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 courts, the courts of the Church. This requirement did not mean evidence in the modern sense. It meant simply that he must maintain his case in one of the ways the law then recognized. There were three: the duel, a writing, and witnesses. The duel need not be discussed; it soon ceased to be used in debt, and it has no bearing on what I have to say. Trial by writing and trial by witnesses, on the other hand, must both be carefully studied. It will be convenient to take the witnesses first and find out what they were.
One thing we know from the start: they were not witnesses as we understand the word. They were not brought before a jury to be examined and cross-examined, and their testimony did not 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 second body to sift it. In the cases where trial by witnesses was possible, if the party called on to go forward could find a certain number of men willing to swear in a certain form, that was the end of the matter.
Now this seems a more primitive way of proving a debt than producing the defendant's written acknowledgment, and it is important to discover where it came from.
The early books and reports show that the cases in which this mode of trial was used were almost wholly confined to claims arising out of a sale or a loan. And the question at once arises whether we are not on the traces of an institution that was already ancient when Glanvill wrote. For centuries before the Conquest, Anglo-Saxon law had required the choosing of a certain number of official witnesses, two or three of whom were to be called in to every bargain of sale. The purpose of these witnesses is not commonly supposed to have been the proof of debts. They go back to a time when theft and similar offenses were the chief ground of lawsuits, and they were appointed to give a means of deciding whether a person charged with holding 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 the law appointed.
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. So their use was not confined to disposing of a charge of felony. But that particular service is what identifies the transaction witnesses of the Saxon period. Now we know that these witnesses did not disappear at once under Norman influence. They are found with their old function in the laws of William the Conqueror. And the language of Glanvill seems to prove that they were still known under Henry II. He says that a purchaser may be able to summon in the man he bought from, to warrant the property to him and defend the suit—in which case the danger shifts to the seller. But if he cannot, then if he has sufficient proof that he lawfully bought the thing, de legittimo marcatu suo, "of his lawful market," it will clear him of felony. If he has not sufficient suit, he will be in danger. This is the law of William over again. It follows that purchasers still used the transaction witnesses.
Footnote: Suit, secta, was the term for the persons whose oath a party offered in support of his case.
But Glanvill also seems to allow the use of witnesses to prove debts. Since the transaction witnesses had formerly served this purpose, I see no reason to doubt that they still did, and that he is speaking of them here as well. 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 offered his witnesses, who were sometimes examined by the court. 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, just as Glanvill's secta has been shown to be.
Footnote: It was no doubt true, as Glanvill says, 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 but in the King's Court itself. But it can hardly be that debts were never proved by witnesses in his time, in view of the continuous evidence from Bracton onward.
Footnote: I do not go so far as to say that the transaction witnesses 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.
With this step in the argument taken, it will be well to recall once more the original nature of the witness oath. It was confined to facts the witnesses knew by sight and hearing. And since the purposes for which witnesses were provided required their presence only when property changed hands, the main case in which they could be of use between the parties to a bargain was when a debt was claimed because property had been delivered. The purpose did not reach agreements that were executory on both sides—where neither side had yet done anything—because there no question of theft could arise. And Glanvill shows that in his time the King's Court did not enforce such agreements. Now, if the oath of the secta could only be used to prove a debt where the transaction witnesses could have sworn, it is easy enough to see how an accident of procedure may have led to a most important rule of substantive law.
Footnote: It is possible that Glanvill means no more here than his often repeated statement that the King's Court did not, generally speaking, take notice of private agreements. The substantive law was perhaps still limited by traditions from the infancy of contract, as discussed elsewhere in this Lecture. The proposition in its broadest form may have rested on the impossibility of trying such agreements in any way but those which have been named.
Put the pieces together. Witnesses could only swear to facts within their knowledge. By accident, these witnesses were not used in transactions that might create a debt, except for one particular fact, the delivery of property. And by a further accident, this delivery was quid pro quo. Taken together, these came to the same thing as a rule that when a debt was proved by witnesses, there must be quid pro quo. But debts proved by witnesses instead of by deed are what we call simple contract debts—debts resting on a promise not under seal. And so, beginning with debt and later spreading to other contracts, our peculiar and most important doctrine is established: that every simple contract must have a consideration. This was never the law for 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 proved by a procedure of limited use goes far to show that its 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." The "country" there is the jury, who must be able to know of the cause if the case is tried. 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."
It may be objected that the argument so far 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 began with debt and spread from debt to other contracts.
But it may be asked again whether there were no contracts proved by witnesses besides those already mentioned. Were there none proved in that way which lacked the accidental consideration? To this, too, 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 made in early times. Besides sale, loan, and the like, which have been mentioned, I find only two contractual obligations. These were the warranties that went with a sale, and the suretyship referred to at the beginning of the Lecture. Of the first, the warranty of title was regarded rather as an obligation the law raised 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 in Saxon times the witnesses swore to them.
But in the Norman period warranty is very little heard of except with regard to land, and then it was decided by the duel. Apart from warranties set down in a deed, it disappeared so completely that it can have had no influence on the law of consideration. I shall therefore assume, without more detail, that it does not bear on the question.
Then there is the pledge, or surety. He no longer paid with his body, except in very rare cases. 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 proved by witnesses without a writing. And here there was no consideration of the kind the law required when the doctrine was first stated—no benefit to the promisor. But this too is unimportant, because the surety's liability on the oath of witnesses came to an end, as did the warrantor's, before the foundations were laid for the rule I am trying to explain. A writing soon came to be required, as will be seen in a moment.
The result so far is this. The only action of contract in Glanvill's time was debt. The only debts recovered without a writing were those that have been described. And the only one of these for which there was no quid pro quo had 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 varied and complex contracts soon came to be enforced. It may be asked why the scope of the witness oath was not enlarged. Or, if some better proof was to be had, why the secta was not done away with and other oral testimony admitted. And in any case, what can the law of Henry II's time have to do with consideration, which was not heard of until centuries later?
It is plain that a witness oath, which settles a case by the bare fact that it is sworn, is not a satisfactory mode of proof. A written admission of debt, produced in court and sufficiently identified as coming 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 that difficulty disappeared as soon as the use of seals became common. This had more or less happened by Glanvill's time. After that, all a party had to do was to produce the writing and satisfy the court, by looking at it, that the impression in the wax fitted his opponent's seal. The oath of the secta, the plaintiff's band of witnesses, could always be met successfully by wager of law—that is, by a counter-oath from the defendant, backed by the same number of fellow-swearers the plaintiff had brought, or double that number. But a writing proved to be the defendant's could not be contradicted. 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 the obligation in any place that kept 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 made before the clerk of a court and noted by him in his papers. The advantage of the writing was not only that it furnished better proof in the old cases. It also made it possible to enforce obligations for which there would otherwise have been no proof at all.
Footnote: The favorite proof by duel was also allowed, but it disappeared. When the inquest became general, the question whether the deed had really been executed was tried by that means, like any other fact.
What has been said sufficiently explains why proof by writing was preferred to proof by the old-fashioned witness oath. But there were other reasons, equally good, why the witness oath 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 ways of proving a debt were by the duel or by writing. A hundred years later Bracton shows that the secta had sunk to the retainers and household of the party, and he says that their oath raises only a slight presumption.
Moreover, a new mode of trial was growing up. It was not used in these cases for a good while, but by contrast it must have tended to lower the value set on the witness oath. This was the beginning of our trial by jury. At first it was an inquest of the neighbors most likely to know about a disputed matter of fact. They spoke from their own knowledge, but they were chosen by an officer of the court instead of by the interested party, and they were meant to be impartial. Soon witnesses were summoned before them—not, as of old, to settle the case by their oath, but to help the inquest reach a verdict by their testimony. With the arrival of this enlightened procedure, the secta soon ceased to decide the case, and it may well be asked why it did not disappear altogether and leave no trace.
Take 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 surprising to find the tender of suit—the offering of the secta—persisting in those cases. But there was another reason, more compelling still. Where there was no deed, the defence in debt was by wager of law. A section of Magna Carta was interpreted to forbid putting a man to his law on the plaintiff's own statement without good witness. So the statute required witness—that is, the secta—in every case of debt where the plaintiff did not rely on a writing. Thus it happened that suit went on being tendered in the cases where it had been tendered of old. And since the defendant in such cases, if he did not admit the debt, always waged his law, it was a long time before the inquest got much foothold.
To establish a debt that arose merely by way of promise or acknowledgment, and for which no mode of trial had formerly been provided, you had to have a writing—the new form of proof that had brought such debts into the law in the first place. The rule was laid down, "by parol the party is not obliged"; that is, a man is not bound by a mere spoken word. But the old debts were not thought of as raised by a promise. 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 held its ground, and even extended itself a little, by strict analogy.
But the undertaking of a surety, whatever form it was clothed in, did not really arise out of any such fact. It had become of the same nature as other promises, and doubts soon arose whether it ought not to be proved by the same evidence. By the reign of Edward III it was settled that a deed was necessary, except where the customs of particular cities had kept the old law in force.
This reign may be taken as marking the time when the divisions and rules of procedure were fixed that have lasted to 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 to tender the secta in every action of debt in which no writing was produced. For this reason, as well as for the others already mentioned, the range of such actions was not materially enlarged beyond the cases that had formerly been established by the witness oath. As suretyship was no 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 that could be maintained without a writing. New kinds of contract 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. It was a mere survival, and the transaction witness had ceased to be an institution. Hence the necessity of tendering the witness oath no longer fixed the limits of debt upon simple contract except by tradition. And it is not surprising to find that the action was slightly extended by analogy beyond its scope in Glanvill's time.
But debt stayed substantially at the point I have indicated, and no new action available for simple contracts was introduced for a century. In the meantime the inversion I have explained took place, and what had been an accident of procedure became a doctrine of substantive law. The change was easy, when the debts that could be enforced without a deed all sprang from a benefit to the debtor.
The influence of the Roman law no doubt helped to bring this result about. It will be remembered that in the reign of Henry II most simple contracts and debts for which there was no evidence of deed or witness were left to the ecclesiastical courts to enforce, so far as their jurisdiction reached. Perhaps it was this circumstance that led Glanvill and his successors to apply the terminology of the civilians to common-law debts. But whether he borrowed it from the church courts or went straight to the fountainhead, it is certain that Glanvill uses the classification and technical language of the Corpus Juris, the great body of Justinian's Roman law, throughout his tenth book.
The Roman system had certain special contracts called real contracts. These bound the contractor either to return a particular thing put into his hands by the other party, as in a lease or a loan, or to deliver other articles of the same kind, as when grain, oil, or money was lent. This class corresponded with the common-law debts only in the most superficial way. But Glanvill adopted the names, and later writers began to draw conclusions from them. The author of Fleta, a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law, says that to raise a debt there must be not only a certain thing promised, but a certain thing promised in return.
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 since he also required a writing and a seal, on top of the thing given or promised in return, the doctrine he laid down can hardly have prevailed at any time. It was probably nothing more than a slight vagary of reasoning, built on the Roman elements he borrowed from Bracton.
It only remains to trace the gradual appearance of consideration in the decisions. A case of the reign of Edward III seems to distinguish between a parol obligation—one not under seal—founded on payments the obligee made of his own accord, and one founded on a payment made at the obligor's request. It also speaks of the debt, or "duty," in that case as arising by cause of the payments. Somewhat similar language is used in the next reign. So, in the twelfth year of Henry IV, there is an approach to the idea: "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 it was decided that in such a case the plaintiff could not recover without having executed the release. The editor explains this on the ground that ex nudo pacto non oritur actio—from a bare promise no action arises. But the most important fact is that from Edward I to Henry VI we find no case in which a debt was recovered unless a consideration had in fact been received.
Another fact to notice is that from Edward III on, debts arising from a transaction without writing are said to arise from contract, as distinguished from debts arising from an obligation—a sealed bond. Hence, when consideration came to be required as such, it was required in all contracts not under seal, whether they were debts or not. Under Henry VI quid pro quo became a necessity in all such contracts. In the third year of that reign it was objected to an action of assumpsit for not building a mill that the plaintiff had not shown what the defendant was to have for building it. In the thirty-sixth year of the same reign (A.D. 1459) the doctrine appears full grown, and is assumed to be familiar.
That case turned on a question that was debated for centuries before it was settled: whether debt would lie for a sum of money the defendant had promised the plaintiff if he would marry the defendant's daughter. Formerly the debate had been whether the promise was so closely bound up with the marriage that it belonged exclusively to the spiritual courts. Now it turned on the purely worldly 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, the delivery to him of the things sold or the money lent. Such cases also offer the most obvious form of consideration. The natural question is, what was the promisor to get for his promise? Only by analysis does one see that the supposed policy of the law is equally satisfied by a detriment incurred by the promisee. So it happened, not unnaturally, that when the judges first laid down the law that there must be quid pro quo, they were slow to recognize a detriment to the promisee as meeting the requirement. In the case I have mentioned, some of the judges were inclined to hold that getting rid of his daughter was a benefit to the defendant sufficient to make him a debtor for the money he had promised. There was even some hint of the opinion that marrying the lady was a consideration because it was a detriment to the promisee. But the other opinion prevailed, at least for a time, because the defendant had had nothing from the plaintiff to raise a debt.
So it was held that a service rendered to a third person, at the defendant's request and on his promise of a reward, would not be enough—though 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 lie only upon a consideration actually received by the debtor and enuring to his benefit.
It was, however, no peculiarity of either the action or the contract of debt that led to this view. It was the imperfectly developed theory of consideration that prevailed between the reigns of Henry VI and Elizabeth. The theory was the same in assumpsit and in equity. 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 that the law enforced, except the liability to pay damages for a wrong. It has been shown already that until the time of Edward III a surety could be sued in debt without a writing. Yet a surety receives no benefit from the dealing with his principal. For instance, if a man sells corn to A, and B says, "I will pay if A does not," the sale does B no good, so far as the terms of the bargain show. For that 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 in Glanvill's time a writing was a more general way of establishing a debt than witness, and it is absurd to fix the scope of the action by looking at only one class of the debts it enforced. Moreover, for a long time a writing was only another mode of proof, though a more conclusive one. The foundation of the action was the same however it was proved. It was a duty, or "duity," to the plaintiff—in other words, that money was due him, no matter how—as anyone may see by reading the earlier Year Books. That is why debt lay equally upon a judgment, which established such a duty by matter of record, or upon the defendant's admission recorded in the same way.
To sum up, the action of debt has passed through three stages. At first it was the only remedy to recover money due, except where the liability was simply to pay damages for a wrongful act. It was closely akin to—indeed it was only 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. If there was a contract to pay money, the only question was how you could prove it. Any such contract that 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 on either the action or the contract based on the nature of the consideration received.
The second stage came when the doctrine of consideration was introduced in its earlier form, as a benefit to the promisor. While that form prevailed it applied to all contracts not under seal. But it was established at a time when debt was the only action for money payable under such contracts, and so 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 below. The result was that the new doctrine prevailed in the new action and the old in the old. What was really the anomaly of two inconsistent theories carried out side by side disguised itself as a limitation on the action of debt. That action did not remain, as before, the remedy for all binding contracts to pay money. So far as parol contracts were concerned, it could be used only 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 say a few words about the effect on our law of the other mode of proof I have mentioned. I mean charters. A charter was simply a writing. Since few people could write, most had to authenticate a document in some other way—for instance, by making their mark. This was in fact the universal practice in England until Norman customs were introduced. Seals came in with them. But as late as Henry II the Chief Justice of England said that seals belonged properly only to kings and to very great men. I know of no ground for thinking that an authentic charter had any less effect at that time when it was not under seal than when it was sealed. It was only evidence either way, and it is called evidence in many of the early cases. It could be waived, and suit tendered in its place. Its conclusive effect came from the satisfactory nature of the evidence, not from the seal.
But when seals came into use, they obviously made the evidence of the charter better, in so far as a seal was harder to forge than a stroke of the pen. Seals acquired such importance that for a time a man was bound by his seal even though it had been affixed without his consent. At last a seal came to be required if a charter was to have its ancient effect.
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. 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 exemption of covenants from the requirement became a rule of substantive law as well. The man who had set his hand to a charter had been bound because he had consented to be bound and because there was a writing to prove it. Now he was held by force of the seal, and by the deed alone as distinguished from all other writings. And to keep an inadequate theory intact, a seal was said to import a consideration.
Nowadays it is sometimes thought more philosophical to say that a covenant is a formal contract, which survives alongside the ordinary contract made by mere agreement, 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 that the law requires, over and above the mere expression of the promisor's will, in order to make a promise binding. 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 our common habits of thought, so that we do not notice it; the other is a survival from an older condition of the law, and is less plainly sensible, or less familiar. I may add that under the influence of this last 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 there 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.
While covenants survive in a somewhat feeble 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 issued in the king's name, ordering the defendant to be summoned before the court to answer the plaintiff. These writs issued as a matter of course in the various well-known actions that took their names from them. 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 writs were issued only for the actions the law knew, and without a writ the court had no authority to try a case. In the time of Edward I there were only a few such actions. The cases in which you could recover money from another fell into a small number of groups, and each group had its own particular form of suing and stating your claim.
These forms had ceased to be adequate. There were many cases, for instance, that did not quite fall within the definition of a trespass, but for which a remedy ought to be furnished. To furnish a remedy, the first thing to be done was to furnish a writ. Accordingly, the famous statute of 13 Edward I, chapter 24, authorized the office from which the old writs issued to frame new ones in cases that were like those covered by existing writs in principle and called for a like remedy, but did not fall exactly within the scope of the writs already in use.
So writs of trespass on the case began to appear—that is, writs stating a ground of complaint analogous to a trespass, but not quite amounting to a trespass as it had been sued for in the older precedents. Take an instance that is substantially one of the earliest cases. Suppose a man left a horse with a blacksmith to be shod, and the smith negligently drove a nail into the horse's foot. The owner of the horse might not be able to have one of the old writs, because the horse was not in his possession when the damage was done. A strict trespass to property could be committed only against the person in possession of it, and it could not be committed by one who was in possession himself. But laming the horse was equally a wrong whether the owner held the horse by the bridle or left it with the smith; and the wrong was closely analogous to a trespass, though it was not one. So the law gave the owner a writ of trespass on the case.
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 on principle none was necessary. But it does not belong to the class of cases we have to consider. 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 what has to be discovered is how trespass on the case ever came to be available for a mere breach of agreement.
It will be well to examine some of the earliest cases in which an undertaking (in Latin, assumpsit, "he undertook") was alleged. The first one reported in the books comes from the reign of Edward III. The plaintiff alleged that the defendant had undertaken to carry the plaintiff's horse safely across the Humber, but had overloaded the boat, and because of that the horse perished. It was objected that the action should have been either covenant, for breach of the agreement, or else trespass. But the answer was that the defendant committed a wrongful act when he overloaded the boat, and the objection was overruled. So this case, although an undertaking was stated, hardly introduced a new principle. The force did not come directly from the defendant, to be sure. But it was brought to bear by the combination of his overloading the boat and then pushing it out into the stream.
The next case is from the same reign, and it goes further. The writ set out that the defendant undertook to cure the plaintiff's horse of a sickness, and did his work so negligently that the horse died. This differs in two ways from the case of laming the horse with a nail. It does not charge any forcible act—indeed, it charges no act at all, only an omission. On the other hand, it states an undertaking, which the other case did not. The defendant at once objected that this was an action for breach of an undertaking, and that the plaintiff should have brought covenant. The plaintiff replied that he could not bring covenant without a deed, and that his 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 could have had trespass. The plaintiff answered that the horse was not killed by force, but died through the defendant's failure in his cure. On this argument the writ was held good, and Justice Thorpe said that he had seen a man indicted for killing, by want of care, a patient whom he had undertaken to cure.
Both these cases, you will see, were treated by the court as pure actions of tort, even though an undertaking on the defendant's part was alleged. But you will also see that each is further than the last from an ordinary case of trespass. In the second case especially, the force that destroyed the horse did not come from the defendant in any sense. And so we are faced with the question: What possible analogy could have been found between a wrongful act that produces harm and a failure to act at all?
Before I attempt an answer, let me illustrate a little further with examples of somewhat later date. Suppose a man undertook to work on another's house, and by his lack of skill spoiled his employer's timbers. That would be like a trespass, though not one, and the employer would sue in trespass on the case. One of the judges stated this as clear law in the reign of Henry IV. But suppose that, instead of spoiling the materials directly, the carpenter had simply left a hole in the roof, and the rain had come in through it and done the damage. The likeness to the first case is marked, but we are a step farther from trespass, because the force does not come from the defendant. Yet here too the judges thought that trespass on the case would lie. In the time of Henry IV the action could not have been brought for a simple refusal to build as agreed. But the court suggested that if the writ had said "that the thing had been commenced and then by not done, it would have been otherwise."
I come back now to the question: What likeness could there have been between an omission and a trespass, close enough to justify a writ of trespass on the case? To find the answer, we must notice that in all the earlier cases the omission happened in the course of dealing with the plaintiff's person or property, and caused damage to one or the other. In view of this, two things are full of meaning: Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before the task is begun and neglect after. The first is all the more suggestive when we remember that it is the earliest argument or analogy to be found on the subject.
The meaning of that analogy is plain. A man has a perfect right to stand by and watch his neighbor's property destroyed—or, for that matter, to watch his neighbor die for want of his help. But once he meddles, he no longer has the same freedom. He cannot withdraw at will. To take a more specific example: if a surgeon, out of kindness, cuts the umbilical cord of a newborn child, he cannot stop there and watch the baby bleed to death. To let death come about in that way on purpose would be murder, just as much as if he had meant it when he cut the cord. It would not matter whether the wickedness began with the act or with the omission that followed.
The same reasoning applies to civil liability. A carpenter need not go to work on another man's house at all. But if he accepts the other's confidence and takes the work in hand, he cannot stop when he pleases and leave the roof open to the weather. So with the farrier: once he had taken charge of the horse, he could not stop at the critical moment and leave the consequences to chance. And still more clearly with the ferryman who undertook to carry a horse across the Humber. It was the water that drowned the horse. But his earlier acts, overloading his boat and pushing it into the stream in that condition, brought about the loss, and he was answerable for it.
In these cases the duty did not depend on contract, or at least the judges who decided them did not think it did. It rested on the general rules that apply to human conduct, rules that even the criminal law applies. The immediate cause of the damage may have been a mere omission, which let natural forces do their work. But connect that omission, as in fact it was connected, with what the defendant had done before, and you have a course of action and conduct which, taken as a whole, has caused the harm.
It may be objected, to be sure, that there is a considerable step between two things. One is holding a man liable for the consequences of his own acts, consequences he might have prevented. The other is making him answerable for not interfering with the course of nature, when he neither set it going nor opened the door for it to do harm. And it may be said that exactly this difference separates making a hole in a roof and leaving it open, or cutting the cord and letting the child bleed, on one side, from the farrier who takes in a sick horse and fails to take proper precautions, on the other.
There seem to be two answers to this. First, it is not clear that the court which decided the farrier's case ever turned its mind to such a distinction. The allegation was that the defendant carried out his cure so negligently that the horse died. It may not have occurred to the judges that the defendant's conduct possibly went no further than leaving out a series of helpful measures. They probably assumed that it was a combination of acts and neglects which, taken together, amounted to an improper dealing with the thing.
Second, it is doubtful whether the distinction is sound on practical grounds. It may well be that so long as a man allows a trust to be placed in him, he is bound to use the precautions he knows of. This would be so even though he has made no contract, and is free to give up the trust in any reasonable way. The view gets some support from the issue on which the parties went to trial. It was that the defendant performed the cure as well as he knew how, and denied that the horse died for default of his care (cure?).
But it cannot be denied that the allegation of an undertaking carried the idea of a promise, as well as the idea of entering upon the business in hand. Indeed, the second idea is perhaps sufficiently conveyed without it. So it may be asked whether the promise did not count for something in raising a duty to act. If that means that the action was really for breach of a contract, the answer has already been given, and too great a weight of authority supports it for it to be doubted. To bind the defendant by a contract, an instrument under seal was essential. As has already been shown, even the ancient territory of debt had been narrowed by this requirement, and in the time of Edward III a deed was needed even to bind a surety—a person who answers for another's debt. It was all the more necessary, then, for bringing in a liability on promises that the ancient law did not enforce. Nevertheless, the suggestion was made at an early date that an action on the case for damage by negligence—that is, by leaving out proper precautions—which alleged an undertaking by way of inducement, was in fact an action of contract.
Five years after the action for negligence in curing a horse, an action was brought in similar form against a surgeon. It alleged that he undertook to cure the plaintiff's hand, and that by his negligence the hand was maimed. There was one difference, however: the writ set out that the plaintiff's hand had been wounded by a certain T. B. So it appeared that, however much the bad treatment may have made matters worse, the maiming was properly to be laid at T. B.'s door, and the plaintiff had an action against him. This may be what led the defendant to take the course he did, because he was unsure whether any action of tort would lie. He took issue on the undertaking, assuming it to be essential to the plaintiff's case. Then he objected that the writ did not show where the undertaking was made, and so was bad, because it did not show from what place the inquest should be summoned to speak to that point. The writ was held bad on that ground, which looks as if the court accepted 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"—that is, without a sealed writing—"because for so small a matter a man cannot always have a clerk at hand to write a deed." At the same time, the earlier cases I have 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 looked at the action from the point of view of trespass.
Footnote: Compare the reasons Justice Candish gave for allowing wager of law with the old rules of pleading printed at the end of the medieval tract on holding a hundred court or a court of record.
Whatever questions this case may raise, the class of actions alleging an undertaking by the defendant went on being treated as actions of tort for a long time after Edward III. Liability was limited to damage to person or property that arose after the defendant had entered upon the employment. And it was mainly through reasoning drawn from the law of tort that the liability was later extended, as we shall see.
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. But, as has been shown, it had been suggested several times that it would be otherwise if the omission or neglect happened in the course of performance and the defendant's conduct had been followed by physical damage. This suggestion took its most striking form in the early years of Henry VI, when the case of the carpenter who left a hole in the roof was put. Once the courts had got that far, it was easy to go one step farther, and give the same effect to an omission at any stage, followed by similar damage.
A few years later the question was asked: What is the difference in principle between the cases where the action is admitted to lie, and the case of a smith who undertakes to shoe a horse and does not, so that the horse goes lame? Or the case of a lawyer who undertakes to argue your case, and then, having led you to rely on him, fails to appear, so that you lose it? It was said that in the earlier cases the duty depended on the covenant, as an accessory to it, and that if the action would lie on the accessory matter, it would lie on the principal. On demurrer it was held that an action would lie for failing to procure certain releases that the defendant had undertaken to get.
Five years later another case came up, very like the farrier's case 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. Here, as in the earlier case, issue was taken on the assumpsit. But now the difference between an omission and an act was clearly stated. The declaration was held not necessarily to mean anything more than an omission, and it was said that, but for the undertaking, the defendant would have owed no duty to act. So the allegation of the defendant's promise was material, and an issue could properly be taken on it.
This decision plainly separated out, from the mass of actions on the case, a special class in which the source of the defendant's obligation was a promise. It was only a matter of time before that class became a new and distinct action of contract. Had the change happened at once, the doctrine of consideration, which was first definitely stated at about the same time, would no doubt have been applied, and a quid pro quo would have been required for the undertaking. But the notion of tort was not at once given up. At the beginning of the reign of Henry VII the law was laid down in line with the earlier decisions: the action would not lie for a failure to keep a promise, but only for negligence after the defendant had entered upon his undertaking.
So long as the action stayed within the true limits of tort, it made no difference whether there was a consideration for the undertaking or not. But then the mistake was made of supposing that all cases in which an assumpsit was alleged, whether they were proper torts or not, rested equally on the promise. From that mistake one of two wrong conclusions naturally seemed to follow. Either no assumpsit needed any quid pro quo, since 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 ought to be alleged in every case. It was long recognized, with more or less understanding of the true limit, that where the heart of the action was negligent damage to property, no consideration was necessary. And there are traces of the notion that consideration was always unnecessary as late as the reign of Charles I.
In a case of that reign, the defendant hired an attorney to act in a lawsuit for a third person, and promised to pay him all his fees and expenses. The attorney did the work and then brought debt. It was objected that debt would not lie, because there was no contract between the parties and the defendant had received no quid pro quo. The court accepted the argument. It said there was no contract or consideration to ground this action, but that the plaintiff might have sued in assumpsit.
It was perhaps the lingering of this idea, together with the often repeated notion that an assumpsit was not a contract, that produced a wider theory of consideration in assumpsit than prevailed in debt. It was settled that assumpsit would lie for a mere omission, or nonfeasance. The cases of Henry VI's reign that I have mentioned were followed by others in the later years of Henry VII, and the point was never doubted again. An action on such a ground was plainly for a breach of promise, as had been recognized since the time of Edward III. If so, a consideration was necessary. Despite occasional wanderings, that too had been settled, or taken for granted, in many cases of Queen Elizabeth's time. But the bastard origin of the action had given rise to the doubt whether any consideration at all was necessary, and that made it possible to hold considerations sufficient in assumpsit which had been held insufficient in debt.
Another circumstance may have had some influence. It seems that in the period when assumpsit was just growing to its full size, there was some slight inclination to identify consideration with the Roman causa, the ground or reason of an obligation, taken in its broadest sense. The word "cause" was used for consideration in the early years of Elizabeth, in connection with a covenant to stand seized to uses—a promise by an owner of land to hold it for the benefit of a relative. It was used in the same sense in the action of assumpsit. In the report last referred to, the main case laid down only a doctrine that would be followed today. But the report also gave an anonymous case, which was read to mean that a consideration already performed at the defendant's request, with no promise of any kind at the time, would support a later promise to pay for it. Starting from this authority and the word "cause," the courts soon reached the conclusion that there was a great difference between a contract and an assumpsit. In a contract, they said, "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."
Footnote: I return to this in Lecture VIII. Mr. Langdell suggests an ingenious explanation of this doctrine: that it was then held that no promise could be implied in fact from the request. There may be evidence I do not know of. But the case he cites for this statement was not decided until 1603, while the implication of the case of 1568 that the later cases followed as their authority is all the other way.
So where the defendant engaged the plaintiff to serve his aunt at ten shillings a week, it was held that assumpsit would lie. The service did the defendant no good, but it was a charge, or detriment, to the plaintiff. The old questions were argued over again, and views that had very nearly prevailed in debt under Henry VI prevailed in assumpsit under Elizabeth and James.
A surety could be sued in assumpsit, although he was no longer liable in debt. There was the same remedy on a promise made in consideration of the plaintiff's marrying the defendant's daughter. Once assumpsit had been extended this far, the illusion that it did not mean contract could not be kept up. With this admitted, and with the ancient precedents in view, the law swung for a time toward reward as the true essence of consideration. But the other view won, and in doing so it actually changed the substantive law. For the courts of Henry VI to recognize a simple contract as binding, it had to rest on a benefit to the debtor. Now a promise could be enforced in consideration of a detriment to the promisee, the person to whom it was made. But in the true archaic spirit, the doctrine was not separated or distinguished from the remedy that brought it in. And so in modern times debt has taken on the altered look of a duty limited to cases where the consideration was of a special kind.
The later fortunes of assumpsit can be told briefly. It brought in bilateral contracts—contracts of a promise for a promise—because a promise was a detriment, and therefore a sufficient consideration for another promise. It pushed out debt. That was because the existence of the duty to pay was a sufficient consideration for a promise to pay; or rather because, even before a consideration was required, and as soon as assumpsit would lie for a nonfeasance, this action was used to escape the defendant's wager of law. It enormously enlarged the number of contracts that could be sued on, which had formerly been confined to debts and covenants, whereas nearly any promise could be sued on in assumpsit. And it brought in a theory that has had great influence on modern law—that all the liabilities of a bailee are founded on contract. Whether the prominence thus given to contract as the foundation of legal rights and duties had anything to do with the similar prominence it soon gained in political speculation, it is beyond my province to inquire.
Footnote: Lord Coke's warning not to rely on the abridgments is very necessary to a 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.
The general method for analyzing contract is the same one already explained for possession. Wherever the law gives special rights to one person, or lays special burdens on another, it does so because certain special facts are true of those persons. In every such case, then, the task is twofold. First, find out what the facts are to which the special consequences are attached; second, find out what the consequences are. The first is the main field of legal argument. With contracts, the facts are not always the same. They may be that a certain person has signed, sealed, and delivered a writing to a certain effect. They may be that he has made a spoken promise, and that the person he promised, the promisee, has furnished him a consideration.
The element common to all contracts might be said to be a promise—although even a promise was not necessary for liability in debt, the old action for a fixed sum owed, as that action was formerly understood. But since it will not be possible to discuss covenants (promises under seal) any further, and since consideration was the main topic of the last Lecture, I will take consideration up first. And because consideration in debt differs historically from consideration in assumpsit, I shall confine myself to assumpsit, which is the later and more philosophical form.
It is said that any benefit the promisee confers on the promisor, or any detriment the promisee incurs, may be a consideration. It is also thought that every consideration can be reduced to a case of the second sort, if the word "detriment" is used in a somewhat broad sense.
To illustrate the general doctrine, suppose a man wants a cask of brandy carried from Boston to Cambridge, and a truckman—a man who hauls goods by wagon—says he will carry it, whether out of kindness or from some other motive, and the cask is delivered to him accordingly. If he carelessly staves the cask in, 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 it needed to be stated. The complaint in that case would be of a wrong, apart from any contract. But if the complaint was that he did not carry the cask as agreed, the plaintiff's difficulty would be that the truckman was not bound to carry it unless there was a consideration for his promise. Suppose, then, it was alleged that he promised to carry it in consideration of its being delivered to him. Would that be a sufficient consideration? The oldest cases, working from the notion of benefit to the promisor, said it could not be: the delivery was a trouble to him, not a benefit. Then look at it from the side of detriment. The delivery is a necessary condition of the promisor's doing the kindness at all, and if he does it, the delivery, far from being a detriment to the promisee, is a clear benefit to him.
But this argument is a fallacy. Plainly the delivery would be consideration enough to let the owner sue in assumpsit for the breach of those duties which arose, apart from contract, from the defendant's having undertaken to deal with the thing. It would be consideration enough for any promise whose performance did not involve dealing with the thing at all—a promise to pay a thousand dollars, for instance. And the law has never pronounced a consideration good or bad according to the nature of the promise built on it. The delivery is a sufficient consideration for any promise.
The argument on the other side loses sight of the moment at which the sufficiency of the consideration is to be judged. That moment is when the consideration is furnished. At that moment the delivery of the cask is a detriment in the strictest sense. The owner has given up a present control over the cask, which he had a right to keep, and what he has got in return is not a performance for which the delivery was necessary, but a mere promise of performance. The performance is still in the future.
But it will be seen that, although the delivery may be a consideration, it need not be one. A promise to carry might be made and accepted on the understanding that it was merely a favor, without consideration and not legally binding. In that case the promisee would incur the detriment of delivery just as before, but obviously he would incur it for the sole purpose of enabling the promisor to carry the cask as agreed.
It seems to me that it has not always been kept sufficiently in mind that the same thing may or may not be a consideration, depending on how the parties deal with it. The popular explanation of Coggs v. Bernard is that the delivery was a consideration for a promise to carry the casks safely. I gave what I believe is the true explanation, and the one I think Lord Holt had in view, in the fifth Lecture. But whether mine is right or not, there is a serious objection to the commonly accepted one: the declaration does not allege that the delivery was the consideration.
The same caution should be used in construing the terms of an agreement. It is hard to see why any detriment an instrument happens to reveal or provide for should be raised 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—something that must happen before the promise has to be performed—as where a man promises to pay another five hundred dollars if he breaks his leg.
The courts, however, have gone a long way toward wiping out this distinction. Acts which, on a fair reading of the language, seem to have been meant only as the fulfilling of a condition have been treated as the consideration for the promise. So have counter-promises in an agreement which expressly named other things as the consideration. It should also be mentioned—leaving open whether there may be some special explanation for the doctrine—that an assignment of a lease is said not to be "voluntary," that is, a gift, under the statute of 27 Elizabeth, chapter 4, because the assignee takes on the obligations of the tenant. Yet the assignee's taking on that detriment may not have been meant as the inducement for the assignment at all. In many cases it only amounts to a deduction from the benefit conferred, as a right of way over the land would, especially if the only obligation is to pay rent, which in legal theory issues out of the land itself.
But although the courts may sometimes have gone a little far in their eagerness to uphold agreements, there can be no doubt of the principle I have laid down: that the same thing may or may not be a consideration, depending on how the parties deal with it. 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 confused with motive. It is true that it must not be confused with what may in actual fact be the prevailing or chief motive. A man may promise to paint a picture for five hundred dollars while his chief motive is a desire for fame. A consideration may in fact be given and accepted solely for the purpose of making a promise binding. But, all the same, 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. And the other way round: the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration—conventional in the sense of agreed upon, whatever the real motives may be. The root of the whole matter is the relation of reciprocal conventional inducement, each for the other, between consideration and promise.
A good example of the first half of this proposition is a Massachusetts case. A man had made a spoken bargain to buy some wood standing on the plaintiff's land and had given his promissory note for it, but the plaintiff refused to let the wood be taken away unless he got additional security. So the buyer and the plaintiff went to the defendant, and the defendant put his name on the note. The plaintiff then let the buyer carry off the wood. But according to the testimony, the defendant signed without knowing that the plaintiff was going to change his position in any way on the strength of the signature, and it was held that, if that account was believed, there was no consideration.
An illustration of the other half of the rule is found in the cases where a reward is offered for doing something, and the thing is afterward done by a person who does not know of the offer. In such a case the reward cannot be claimed, because the supposed consideration was not furnished on the faith of the offer. The promise that was held out did not induce the furnishing of the consideration. A promise cannot be set up as the conventional motive for an act when nobody knew of it until after the act was done.
Footnote: The New York court criticized the English case of Williams v. Carwardine on this point. But in that case it does not appear that the plaintiff did not know of the offer of a reward; it appears only that the jury found she was in fact moved by other motives—a finding wholly beside the mark.
Both sides of the relation between consideration and promise, and the conventional nature of that relation, can be illustrated by the case of the cask. Suppose the truckman is willing to carry the cask, and the owner willing to let him, without any bargain, and each knows the other's state of mind. But the truckman, seeing some advantage to himself 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 the owner thereupon delivers it. I suppose 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 likely that the owner would have delivered the cask without any promise, and that the truckman would have made his promise as a free favor if it had not been accepted on consideration; but that is only a guess, after all. The owner need not have delivered the cask unless he chose to, and since he delivered it as a term of a bargain, the promisor cannot set up what might have happened in order to destroy the effect of what did happen. It seems, then, that the same transaction, in substance and spirit, may be voluntary or binding according to the form of words the parties choose to use for the purpose of fixing its legal consequences.
If these principles are accepted, they will be seen to explain a doctrine which the courts have had some trouble in establishing: the doctrine that an executed consideration—something already done and over with—will not support a later promise. It has been said, to be sure, that such a consideration was enough if the thing had been done at the promisor's request. But the objections to that view are plain. If the request was of such a kind, and so put, as reasonably to imply that the other person was to be rewarded, then there was an express promise, even though not put into words, and that promise was made at the same time the consideration was given, not afterward. If, on the other hand, the words did not justify 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 that was not induced by the promise.
The source of the error can be traced, at least in part, in history. Some suggestions about it 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 shown enough to maintain his action, a "contract precedent"—a bargain made beforehand—was mentioned several times as what raised the duty. Thus, where a man had bound himself in one hundred shillings to pay his servant on a certain day for his services and for payments the servant had made on his account, it was argued that there was no contract precedent, and that a party is not bound by mere words; and further, that for all that appeared, the servant had made the payments on his own initiative and at no one's request, and from that no duty could arise.
So, too, when debt was brought on a deed to pay the plaintiff ten marks if he would marry the defendant's daughter, and it was objected that the action should have been covenant, the answer was that the plaintiff had a contract precedent, which gave him debt.
The first case in assumpsit meant only to adopt this long-familiar idea. A man went bail for his friend's servant, who had been arrested. Afterward the master promised to indemnify him—to make good any loss the bail might cost him—and when the master failed to do so, the man sued him in assumpsit. It was held that there was no consideration for which the defendant should be charged, unless the master had 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 mentions a case in which it was held that a later promise, made in consideration that the plaintiff had married the defendant's cousin at the defendant's special request, was binding, and that the marriage was "good cause... because [it] ensued the request of the defendant." Whether this was meant to establish a general principle, or was decided with an eye to the peculiar consideration of marriage, it was soon read in the broader sense, as was shown in the last Lecture. It was held several times that a past and executed matter was a sufficient consideration for a promise made at a later day, provided only that the thing relied on had been done or furnished at the promisor's request.
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 of 1872, in Section 2, says:
"(a.) When one person signifies to another his willingness 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."
By this definition, what may be promised is limited to the conduct of the promisor himself. If that only meant that the promisor alone must bear whatever legal burden his promise may create, it would be true. But that is not what it means. For this is a definition of a promise, not of a legally binding promise. We are not looking for the legal effects of a contract, but for the possible contents of a promise which the law may or may not enforce. So we must consider only what can possibly be promised in a legal sense, not what the secondary consequences will be of a promise that is binding but not performed.
An assurance that it shall rain tomorrow, or that some third person shall paint a picture, may just as well be a promise as an assurance that the promisee shall receive a hundred bales of cotton from some source, or that the promisor will pay the promisee a hundred dollars. What is the difference between these cases? It lies only in how much power the promisor has over the event. In the first case he has none. He has just as little legal authority to make a man paint a picture, although he may have greater means of persuasion. He will probably be able to make sure that the promisee gets the cotton. And being a rich man, he is certain to be able to pay the hundred dollars, barring some most improbable accident.
But the law does not, as a general rule, ask how far the fulfilment of an assurance about the future lies within the promisor's power. In the moral world it may be that the obligation of a promise is confined to what lies within reach of the promisor's will (except so far as the limit is unknown to one side and misrepresented by 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 tomorrow, or that A shall paint a picture, he is only saying, in 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 fair weather, or by A's 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 is true, it matters for more than just enlarging the definition of the word promise. It bears on the theory of contract. At common law, the consequences of a binding promise do not depend on how much power the promisor has over the promised event. If the promised event does not come to pass, the promisor's property is sold to satisfy the damages—within certain limits—that 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.
If the legal consequence is the same in every case, it seems right that all contracts should be looked at from the same legal point of view. In the case of a binding promise that it shall rain tomorrow, 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 is proper to state the common-law meaning of promise and contract in this way, it has the advantage of freeing the subject from the needless theory that contract is a qualified subjection of one will to another, a kind of limited slavery. It might be seen that way if the law compelled men to perform their contracts, or allowed promisees to compel them. If, when a man promised to work for another, the law made him do it, his relation to the promisee might with some truth be called a servitude ad hoc—a bondage for that one purpose. But that is what the law never does. It never steps in until a promise has been broken, and therefore can no longer be performed according to its terms. It is true that in some instances equity does what is called compelling specific performance—ordering the promisor to do the very thing he promised. But, in the first place, I am speaking of the common law; and, in the second, this only means that equity compels performance of those parts of the whole promise which can still be performed. Take, for instance, a promise to convey land within a certain time. A court of equity does not usually interfere until the time has gone by, so that the promise can no longer be performed as it was made. But if the conveyance matters more than the time, and the promisee would rather have it late than never, the law may compel performance of that much. Even then it does not literally compel it; it puts 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 of looking at a contract as the taking of a risk is the light it throws on the measure of damages—the rule for how much a plaintiff can recover. If a breach of contract were regarded in the same light as a tort, it would seem to follow that if, while the contract was being performed, the promisor were told of some particular consequence that would result from its not being performed, he should be held liable for that consequence if he failed to perform. Such a suggestion has been made. 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 of special circumstances out of which special damages would arise in case of breach—even notice given at the time the contract is made—is not enough, unless the assumption of that risk is to be taken as having fairly entered into the contract. If a carrier undertook to carry the machinery of a sawmill from Liverpool to Vancouver Island and failed to do so, he probably would not be held liable for the hire value of the machinery during the unavoidable delay, even though he knew 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."
It is true that when people make contracts they usually have the performance in mind rather than the breach. The express language they use does not generally go further than to define what will happen if the contract is carried out. A statute requiring a written memorandum of the contract would be satisfied by a written statement of the promise as it was made. That is so because to require more would run against the ordinary habits of mankind; and also 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. It means that the assumption follows as a consequence enforced directly by the law, without the promisor's co-operation. So parol evidence—evidence of what was said outside the writing—would no doubt be admissible to enlarge or narrow the extent of the liability assumed for non-performance, where it would not be admissible to change the scope of the promise.
But these concessions do not affect the view taken here. Since the relation between the parties to a contract is voluntary, the consequences attached to that relation must be voluntary too. What event the promise contemplates—in other words, what will amount to a breach of contract—is a matter of interpretation and construction. Which consequences of the breach are assumed is likewise, though more remotely, a matter of construction, taking into account the circumstances in which the contract is made. Knowledge of what depends on performance is one of those circumstances. It is not necessarily conclusive, but it may have the effect of enlarging the risk assumed.
The very business of construction is to work out, from what was expressly said and done, what would have been said about events not definitely before the parties' minds, if those events had been considered. In mercantile contracts the price paid generally rules out the reading that exceptional risks were meant to be assumed. The foregoing analysis is believed to show that the result the courts have reached 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 its consequences somewhat ahead of their place. I must say a word more about the facts that make up a promise. It is laid down, with theoretical truth, that besides the assurance or offer on one side, there must be an acceptance on the other. But I find it hard to think of a case in which a simple contract fails to be made that could not be explained on other grounds—generally by the lack of the relation between 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 since by our law an accepted offer, or promise, stands on no different footing from an offer not yet accepted until the consideration is furnished—each being revocable until then, and each continuing until then unless it has expired or been revoked—the question of acceptance is rarely of practical importance.
Assuming that the general nature of consideration and promise is now understood, some questions peculiar to bilateral contracts—contracts in which each side makes a promise to the other—remain to be considered. They concern the sufficiency of the consideration, and the moment when the contract is made.
A promise may be a consideration for a promise, though not every promise for every other. It may be doubted whether a promise to make someone a gift of a hundred dollars would be supported by his promise to accept it. But where there were mutual promises, one to transfer and the other 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 that may prove valuable, and the other to take on a liability that may prove burdensome.
But now suppose there is no element of uncertainty except in the minds of the parties. Take, for instance, a bet on a horse race that has already been run. It has been thought that this would amount to an absolute promise on one side and no promise at all on the other. 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, what matters is not what is objectively true but what the parties know. Any present fact unknown to the parties is just as uncertain, for the purpose 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 to have been as expected. This seems to be the true explanation of why forbearing to sue on a claim the plaintiff believes to be good is a sufficient consideration, even though the claim was in fact bad and the defendant knew it was bad. If this view were unsound, it is hard to see how bets on any future event, short of a miracle, could be upheld. For if the happening or not happening of the event is subject to the law of cause and effect, the only uncertainty about it lies in our foresight, not in its happening.
The question when a contract is made arises for the most part with bilateral contracts made by letter. The doubt is whether the contract is complete at the moment the return promise is put into the mail, or at the moment it is received. If convenience weighs more heavily on the side of either view, that is reason enough to adopt it. As far as purely logical grounds go, the most ingenious argument for 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. But this reasoning seems unsound. When, as in the case supposed, the consideration for the return promise has been put within the offeree's power, and the return promise has been accepted in advance, there is not an instant, either in time or in 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. 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 be neither revocable nor unaccepted. It would complete the contract the moment it was made.
If it is said that it is of the essence of a promise to be communicated, whether or not it passes through the stage of offer—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 a letter containing the return promise—and the consideration for the promise and the assent to it have already been given, the only question is when the tangible sign is sufficiently put into the promisee's power. I cannot believe that, if the letter had been delivered to the promisee and then snatched from his hands before he had read it, there would be no contract. If I am right, it matters little whether the post office is regarded as the offerer's agent, or as his bailee, 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, gives up control over the letter and puts it into a third hand for the benefit of the offerer, who is at liberty to take it at any moment afterward.
The principles governing revocation are wholly different. A person to whom an offer is made has a right to assume that it stays open according to its terms until he has actual notice to the contrary. The effect of one communication must be undone 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 complete when control over that object changes hands.
We have now discussed the facts that must be present to bring a contract into existence, and the legal consequences of a contract once it is formed. It remains to consider, one after the other, the cases in which a contract is said to be void, and those in which it is said to be voidable. A void contract is one that fails to be made when it seems to have been made. A voidable contract is one that has been made, but can be rescinded—undone—by one side or the other, and treated as if it had never existed. I take up the first class of cases first.
When a contract fails to be made, although the usual forms have been gone through, the reason for the failure is commonly said to be mistake, misrepresentation, or fraud. But I shall try to show that these are merely dramatic circumstances. The true reason 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.
Suppose a man goes through the form of making a contract with A through B, as A's agent, and B is not in fact A's agent. 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 there is generally mistake on one side and fraud on the other. But it is very clear that no special doctrine is needed, 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"—that is, to arrive on the ship Peerless. There were two ships of that name sailing from Bombay, one in October, the other in December. The plaintiff meant the December ship, the defendant the October one. It was held that the defendant was not bound to accept the cotton. It is commonly said that such a contract is void because of mutual mistake as to the subject-matter, and because the parties therefore 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 only 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 the usual explanation implies, 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, means one individual thing and no other, as everyone knows. Therefore a person to whom such a name is used must find out at his peril what object it designates. If there are no circumstances that make the use of the name deceptive on either side, each party is entitled to insist on the meaning favorable to him for the word as he used it, and neither is entitled to insist on that meaning for the word as the other used it. So far from mistake, as mistake, being the ground of the decision, its only bearing, it seems to me, was to establish that neither party knew that the other understood him to use the word "Peerless" in the sense the other gave it. Had one of them known that, there would perhaps have been a binding contract. For if a man uses a word to which he knows the other party attaches a certain meaning, and understands him to attach it, he may be held to that meaning, and not be allowed to give it any other.
Next, suppose a case in which the offer and the acceptance do not differ, and 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 what is in the barrels, and no fraud on either side. I suppose the contract would be void.
It is commonly said that the contract fails in such a case because the actual subject-matter differs in kind from the thing the parties intended. It is perhaps more instructive to say that the terms of the supposed contract, although they seemed consistent, were in fact 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. By another, equally important, it was mackerel, and nothing else. But as a matter of fact it could not be both, because the contents of the barrels were salt. Neither term could be left out without forcing on the parties a contract 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 unless one term is left out, 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 the buyer's option. For when a man qualifies words that make sense with other words which he knows, for reasons he keeps to himself, make no sense when applied to them, he may fairly be taken to authorize his promisee to insist on the possible part of the promise being performed, if the promisee is willing to give up the rest.
Take one more illustration like the last. A policy of insurance is issued on a certain building, which the policy describes 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, that is, contradict each other, and put together they make no sense.
Of course, the principle of repugnancy just explained might be stretched to cover 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 is in fact less pure, or if a cow is sold as giving an average of twelve quarts of milk a day and in fact gives only six, then by the explanation just offered there is no logical difference between those cases and that of the barrel of salt sold as mackerel. Yet those bargains would not be void. At 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. The law therefore does not make men's dealings depend on 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 entitle him to throw up the contract, still less that it will prevent a contract from being formed, which is the question now before us. The repugnant terms must both be very important—so important that the court thinks that, if either were left out, the contract would be different in substance from the one the parties' words seemed to express.
A term that refers directly to an identification by the senses always has this degree of importance. If a promise is made to sell this cow, or this mackerel, to this man, then whatever else may be struck from the contract, it can never be enforced except as to this object and by this man. If this barrel of salt is fraudulently sold as a barrel of mackerel, the buyer may perhaps choose to take this barrel of salt if he likes, but he cannot choose to take another barrel of mackerel. Suppose the seller is introduced by the name B, and the buyer takes him for another person of the same name, and under that impression hands him a written promise to buy from B. The B to whom the writing is handed is the contractee, if anyone is; and notwithstanding what has been said about the use of proper names, I should suppose that a contract would be made. For it must further be said that, so far as one of the terms of a contract identifies the thing promised, or the promisee, by sight and hearing, that term so far outweighs all the others that it is very rare for the failure of any other part of the description to prevent a contract from being made. The most obvious of the seeming exceptions is where it is not the object itself that is so identified, but only its covering or wrapper.
Footnote: The maxim is that the presence of the thing itself cures a mistake in its name. It would seem that a proper name, or any other identification of an object or person as a specific one, may have the same effect as an actual identification by the senses, because it refers to such an identification, although less directly.
Of course, the performance of a promise may be made conditional on the other side's complying with all the terms it has agreed to. But conditions attached to performance can never come into question until a contract has been made, and so far the question has been whether a contract exists in the first place.
A case different from any yet considered may be suggested. Instead of a contradiction between offer and assent, which prevents an agreement, or between the terms of an agreement, which makes it meaningless on its face, there may be a similar contradiction between a term of the contract and an earlier representation of fact that was not expressly made part of the contract. The representation may have been the chief inducement to the bargain and its very foundation. It may be more important than any of the terms expressed, and yet the contract may have been put into writing in words that cannot fairly be read to include it. A seller may have stated that barrels filled with salt contain mackerel, while the contract is only for the barrels and their contents. An applicant for insurance may have misstated facts essential to the risk, while the policy simply insures a certain building or a certain life. It may be asked whether these contracts are not void as well.
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—that is, by the court's reading of what the words mean. For instance, it might be said that the true and well-understood purpose 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. It is to take a risk of a certain size, and no other, a risk that has been calculated mathematically from the statements of the insured party. The extent of the risk is not stated in the policy, because the old forms and established usage do not state it, but the meaning is perfectly understood.
If this reasoning were adopted, there would be the same contradiction in the terms of the contract whether the nature of the risk was written in the policy or fixed by an earlier 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 who have the power to bind themselves do acts and use words that are fit to create an obligation, I take it that an obligation arises. If there is a mistake about a fact not mentioned in the contract, it goes only to the motives for making the contract. But a 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 only is a ground for avoiding a contract does not concern this discussion. The subject now before us is when a contract is made, and the question of avoiding or rescinding it assumes that it has been made.
I think it may now be taken as settled that, when fraud, misrepresentation, or mistake is said to make a contract void, no new principle comes in to set aside an otherwise perfect obligation. In every such case one or more of the first elements explained in the last Lecture is missing. Either there is no second party, or the two parties say different things, or essential terms that seem 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 may be unmade at the choice—the election, as lawyers say—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 settled one way or the other. There is no obligation, although there may be an offer or a promise, and so there is no relation between the parties that needs discussing here. But some conditions that seem to arise out of a contract already made are really of this sort. That 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 they are made to the customer's satisfaction has been held in Massachusetts to make the promisor his own final judge. So interpreted, it seems to me to be no contract at all until the promisor declares himself satisfied. His promise is only to pay if he sees fit, and such a promise cannot be a contract, because it cannot impose any obligation. If the promise were read to mean that the clothes should be paid for provided they were such as ought to satisfy the promisor, and so to make the jury the judge, there would be a contract, because the promisor gives up control over the outcome. But it would be subject to a condition in the sense of the present analysis.
Theorists have divided the conditions a contract may contain into conditions precedent and conditions subsequent—conditions that must be met before a duty arises, and conditions whose happening ends a duty already in being. The distinction has even been declared to be of great importance. It must be admitted that it is, if the course of pleading is taken as the test. In some cases the plaintiff must state that a condition has been performed before the defendant is called on to 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. Take, for instance, a promise to pay for work if it is 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 contract before that moment, because the decision whether the promisor shall pay or not is no longer within his control. So the condition is subsequent to the existence of the obligation.
On the other hand, every condition subsequent is precedent to the moment when the burden of the law actually falls. Look at the law as it would be seen by a man with no scruples against doing anything he could do without legal consequences. To him it is obvious that the main consequence the law attaches to a contract is a greater or smaller chance of having to pay money. From the purely legal point of view, the only question is whether the promisor will be made to pay, and the important moment is the one at which that 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—his right to sue. As strong a case as can be put is that of an insurance policy which is to be void if it is not sued on within one year after a failure to pay as agreed. The condition does not come into play until a loss has happened, 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 now. He has not, unless the year is still running. If it were left to the defendant to raise the lapse of the year, that would be because the order of pleading does not require a plaintiff to meet every possible defense and set out a case that can be answered only by denying it. The point at which the law calls on the defendant for an answer varies from case to case. Sometimes it seems to be governed simply by convenience of proof, requiring the party who asserts a fact to plead and prove it. Sometimes there seems to be a reference to the usual course of events, and matters belong to the defense because they are true only exceptionally.
The most logical distinction would be between conditions that must be satisfied before a promise can be broken, and conditions which, like the last, discharge the liability after a breach has occurred. 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 difference between a stipulation that merely confines a promise to certain cases and a condition properly so called. Every condition, it is true, has this confining effect on the promise it is attached to. Whatever the rule of pleading may be, a promise is as truly kept and performed by doing nothing, when the condition of the stipulated act has been broken, as it would have been by doing the act had the condition been fulfilled. But if that were all, every clause in a contract that 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 whose happening entitles the person in whose favor the condition is reserved to treat the contract as if it had not been made—to avoid it, as it is commonly put—that is, to insist that both parties be put back where they stood before the contract was made. When a condition works as a condition, it lets in an outside force to destroy the existing state of things. For although its existence is due to the consent of the 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, choose to keep the contract alive. He gets his right to avoid it from the agreement, but the avoidance comes from him.
So it is important to distinguish the stipulations that have this extreme effect from those that only interpret the extent of a promise, or define the events to which it applies. And since it has just been shown that a condition need not be insisted on as such, we must further distinguish between its working by way of avoidance, which belongs to it alone, and its incidental working by way of interpretation and definition, which it shares with other clauses that are not conditions.
This is best illustrated by a bilateral contract between A and B, where A's undertaking is conditional on B's doing what he promises, and where, after A has gone a certain distance in his task, B breaks his half of the bargain. For instance, A is employed by B as a clerk, and is wrongfully dismissed in the middle of a quarter. In A's favor, 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. So far, the condition works simply by way of definition: it establishes that A has not promised to act in the case that has happened. But beyond this, for which no condition was needed, A may choose between two courses. First, he may elect to avoid the contract. Then the parties stand as if no contract had been made. A has done work for B which was understood not to be free, and for which no rate of pay has been fixed, so he can recover what the jury thinks his services were reasonably worth. The contract no longer fixes the quid pro quo. Alternatively, A may stand by the contract if he prefers, 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, and also compensation for losing the chance to finish. But the points that matter for the present discussion are these. The two remedies exclude each other, one relying on the contract, the other setting it aside. And A's stopping work and doing no more after B's breach is equally consistent with either choice, and in fact has nothing to do with the matter.
One word should be added to prevent a misunderstanding. When it is said that A has done all he promised to do in the case that has happened, it is not meant that he is necessarily entitled to the same pay 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. Although the consideration for that promise was A's promise to perform them, its scope was limited to the case of their actually being performed. So A could not simply wait until the end of his term and then recover the full amount he would have had if the employment had continued. Nor is he any more entitled to do so because it was B's fault that the services were not rendered. B's answer to any such claim is perfect. He is liable only on a promise, and he in his turn only promised to pay in a case that has not happened. He did promise to employ A, however, and for not doing that he is liable in damages.
One or two more illustrations will be useful. A promises to deliver certain goods, and B promises to accept and pay for them, at a certain time and place. When the time comes, neither party is there. Neither would be liable to an action, and, according to what has been said, each has done all he promised to do in the event that has happened—namely, nothing. It might be objected that if A has done all he is bound to do, he ought to be able to sue B, since performance or readiness to perform was all that was needed to give him that right; and the same might be said the other way round of B. On the other hand, taking either B or A as defendant, the same facts would be a complete defense. The puzzle is largely one of words.
It is true that A and B have each performed all they promised to do at the present stage, because each promised only to act in the event of the other being ready and willing to act at the same time. But that readiness and willingness, although not necessary to the performance of either promise, and therefore not a duty, was necessary to present a case to which the promise of action on the other side would apply. So although A and B have each performed their own promise, they have not performed the condition of their right to demand more from the other side. Performing that condition is purely optional until one side has brought it within the scope of the other's undertaking by performing it himself. But it is performance in this second sense—satisfying all the conditions, as well as keeping one's own promises—that 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 say, for parties may agree to whatever they choose. But conditions may also be held to arise by construction, where the contract makes no provision in terms for rescinding or avoiding it in any case. The nature of the conditions the law reads in this way needs explaining. Speaking generally, they are aimed at the existence of the evident grounds, on the side of the rescinding party, for making the bargain, or at the achievement of its evident purposes. But that is not enough. As a rule, the disappointment must be caused by wrongdoing on the other side; and the most obvious kinds of such wrongdoing are fraud and misrepresentation, or failure to perform one's own part of the contract.
Fraud and misrepresentation therefore have to be considered once more in this connection. I take misrepresentation first. The first question it raises 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 being untrue will be decided on much the same principles as govern a failure to perform a promise on the same side. If the contract is made by word of mouth, there may be wide latitude in connecting words of representation with later words of promise; but once they are found to be part of the contract, the same principles apply as if the whole were in writing.
The question now before us is the effect of a misrepresentation that leads to the contract but is not part of it. Suppose the contract is in writing but does not contain the representation. Does such an earlier misrepresentation ever authorize rescission? And if so, does it ever do so except where it rises to the level of fraud? The promisor might say: It does not matter to me whether you knew your representation was false or not; the only thing I care about is whether it was true. If it is untrue, I suffer equally whether you knew it or not. But it was 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 takes its character from the surrounding 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 risk of its truth on him unless he agrees to take that risk. In the case supposed he did not, since the representation was not made part of the contract.
It is very different when there is fraud. Fraud may lead to the making of a contract through a statement outside the contract just as well as through one contained in it. And the law would hold the contract no less conditional on good faith in the 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. Afterward A writes to B, "I will sell the barrels you saw, and their contents, for so much," and B accepts. The barrels turn out to contain salt. I suppose the contract would be binding if the statements about the contents were honest, and voidable if they were fraudulent.
Fraudulent representations made outside a contract can never, it would seem, go to anything except the motives for making it. Being outside the contract, they can seldom affect how it is interpreted. 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 point to a person and a thing identified by the senses, and they signify nothing more. There is no repugnancy. If that person is ready to deliver that thing, the purchaser cannot say that any term of the contract itself has not been complied with. He may have been fraudulently led to believe that B was another B, and that the barrel held 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 standing before the speaker, whatever his name, and "contents" applies to salt as well as to mackerel.
It is no doubt only because a condition is construed into the contract—read into it by the law—that fraud is a ground for rescission at all. The parties could agree, if they chose, that a contract should bind them regardless of the truth or falsehood of anything said outside it on either side.
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. So it has happened with fraud. If a man makes a representation while knowing facts which, by the average standard of the community, are enough to warn him that it is probably untrue, and it is untrue, he is guilty of fraud in the eye of the 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 a man makes as of his own knowledge, or in such a way that it may fairly be understood as made of his own knowledge, is fraudulent if it is untrue—whatever reasons he may have had for believing it, and for believing that he knew it. It is clear, therefore, that a representation may be morally innocent and yet fraudulent in the eye of the law. Indeed, the Massachusetts rule seems to stop little short of the principle laid down by the English courts of equity, which I criticized in Lecture IV. For most positive statements of fact would at least entitle a jury to find that they were reasonably understood as made of the speaker's own knowledge, and so might justify rescission if they turned out to be untrue. The moral vocabulary has ceased to fit, and an external standard of responsibility has been reached. But the starting point is fraud all the same, and except on the ground of fraud, as the law defines it, I do not think that misrepresentations made before the contract affect its validity, even though they lead directly to its making. And neither the contract nor the implied condition calls for the existence of the facts about 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 barrel shall contain mackerel, but that the promisee has not lied to the promisor about material facts.
Then the question arises: how do you decide which facts are material? Since the facts are not required by the contract, the only way they can be material is that a belief in their truth is likely to have led to the making of the contract.
It is not true, then, as is sometimes said, that the law does not concern itself with the motives for making contracts. On the contrary, the whole business of fraud outside the contract is the creation of false motives and the removal of true ones. And this gives us a reasonable test of the cases in which fraud will justify 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 argument above is correct, it must be by appealing to ordinary experience, and asking whether a belief that the fact was as represented would naturally have led to the making of the contract, or a contrary belief would naturally have prevented it.
If the belief would not naturally have had that effect, either in general or under the known circumstances of the particular case, the fraud is immaterial. Suppose a man is induced to contract with another by the other's lie that he is a great-grandson of Thomas Jefferson. I do not suppose 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, that I have dealt with so far concern the conduct of the parties outside the contract itself. I still confine myself to conditions that arise by construction of law—that is, conditions not attached to a promise directly and in so many words by the literal meaning of the language 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 on one side only. It has been said that where the contract is unilateral—a promise by one party only—and all its language is therefore the promisor's, clauses in his favor will be construed as conditions more readily than the same words would be in a bilateral contract. Indeed, it has been said that they must be so construed. For if they do not create a condition they do him no good, since by hypothesis they are not promises by the other party. How far this ingenious suggestion has actually affected doctrine may perhaps be doubted.
But for the purposes of this general survey it will be enough 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. Only in the second case can they be promises; but in the first they may be just as essential terms of the bargain.
Here again we come upon the law of representations, but in a new phase. When representations are part of the contract, it is always possible that their truth should be a condition of the contract, entirely apart from any question of fraud. And it often is so in fact. It is not, however, every representation contained in the words used on one side that will 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, 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 an agreement to sell certain barrels of mackerel where the barrels turned out to contain salt. If that 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, not every repugnancy makes a contract void, and not every failure in the terms of the other side's undertaking makes it voidable. Here it plainly appears that the buyer knows exactly what he is going to get, and therefore the mistake about the color has no bearing on the bargain.
If, on the other hand, a contract contained a representation that was fraudulent, and that 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 often held to amount to what is sometimes called a warranty—an undertaking that a fact is as stated—quite apart from fraud. Whether they do or not is a question for the court to decide on grounds of common sense, looking to the meaning of the words, the importance in the transaction of the facts the words convey, and so on. But when words of description are held to be a warranty, the decision means 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, Behn v. Burness, the agreement was that the plaintiff's ship, "now in the port of Amsterdam," should with all possible dispatch proceed direct to Newport, England, and there load a cargo of coal for Hong Kong. The agreement was a charter-party—the contract by which a ship is hired. At the date of the charter-party the vessel was not in Amsterdam, though she arrived there four days later. The plaintiff had notice that the defendant considered time important. It was held that the vessel's presence in the port of Amsterdam at the date of the contract was a condition, and that its breach entitled the defendant to refuse to load and to rescind the contract. Suppose we adopted the view that a condition must be a future event, and that a promise which purports 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; 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, in Lecture VIII, 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 at all, rather than merely voidable. It is equally against authority, and yet I have never been able to answer it wholly to my satisfaction. In the case just put, the owner's representation concerned the vessel itself, and therefore entered into the description of the thing the charterer 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 the one for the sale of the barrels of salt described as containing mackerel. Why is the repugnancy between those two terms fatal to the existence of a contract—first, that the thing sold is the contents of these barrels, and second, that it is mackerel? It is because each of those terms goes to the very root and essence of the contract. To compel the buyer to take something that answers to one requirement but not the other would be to hold him to do a substantially different thing from what he promised; and so a promise to take one and the same thing answering to both requirements is contradictory in a substantial matter. We have seen that the law does not proceed 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 that 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 to find out is to see how the parties have dealt with it. If they have said nothing, we may refer to the speech and dealings of everyday life, and say that if the term's 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, just as they may agree that anything, however important, shall not be. And if that essential term is part of the contract's 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 were, 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. Now, if this is true, what better evidence can there be that a requirement is essential—that without it the subject matter will be different in kind from the description—than that one party has demanded, and the other has given, a warranty of its presence? Yet the contract's description of the specific vessel as now in the port of Amsterdam, though 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. Even an express warranty of quality in a sale does not have that effect; in England, indeed, it does not allow the purchaser to rescind at all in case of breach. On this last point the law of Massachusetts is different.
One explanation offered for the English doctrine about sales is this: once the title has passed, the purchaser has already had some benefit from the contract, and so he cannot wholly restore the seller in statu quo—to the position he was in before—as must be done when a contract is rescinded. This reasoning seems doubtful even as proof that the contract is not voidable, and it has no bearing at all 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 promises only to load a certain ship, and the words "now in the port of Amsterdam" are mere history by the time for loading comes, and no part of the description of the vessel he promised to load. But the moment those words are held to be essential, they become part of the description. The promise is then 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 ground a claim for damages. The law would be reluctant to hold a contract void for repugnancy in terms describing the present, when, if the same terms had only been promised, a failure of one of them would not justify a refusal to perform on the other side. If, on the other hand, both terms are of the utmost importance—so that enforcing 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 in which it is left to the disappointed party to decide. But since the lines between the three are this vague, it is not surprising that different jurisdictions have drawn them differently.
The examples I have 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 their use. A contract may warrant the existence of other facts as well. Examples of this kind could probably be found or imagined in which 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 in which the question would not arise whether there was something more than a condition—a repugnancy that prevented any contract from being formed at all. But the illustrations already given are enough for the present purpose.
We may now pass from undertakings that certain facts are true at the time the contract is made 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 of the obligation of the contract on the other. In practice this question tends to be treated as the same as 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 where the things promised on the other side are performed, and yet that a failure of the other side should not justify rescinding the contract. Wherever one party has already received a substantial benefit under a contract, of a kind that cannot be given back, it is too late to rescind, however serious a breach the other side may commit later. Yet he may be excused from going any further. Suppose a contract is made for a month's labor: ten dollars to be paid down, not to be recovered except if the contract is rescinded for the laborer's fault, and thirty dollars at the end of the month. If the laborer wrongfully stops work at the end of two weeks, I do not suppose that the contract could be rescinded and the ten dollars recovered as money had and received—the action for money that in fairness belongs to the plaintiff. 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.
For the most part, however, a breach of promise that releases the promisee from further performance on his side will also justify 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 that performance too. In what follows I shall take up the cases I wish to notice without stopping to consider whether the contract was, in the 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 go wrong by seeking too eagerly for simplicity, and by trying too hard to reduce all cases to artificial presumptions, which are less obvious than the decisions 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. So far as they have not provided for the event that has happened, the law has to say what they would naturally 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 decisions based on 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. It is this: in a bilateral contract, although the consideration for each promise is the counter-promise, yet on the face of it the payment for the performance of one is the performance of the other. The other party's performance is what each means to have in return for his own. If A promises B a barrel of flour, and B promises A 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 to perform at the same time himself.
But this principle of equivalence is not the only one to be drawn even from the form of contracts, without considering their subject matter; and of course Mr. Langdell's work does not offer it as the only one.
Another very clear principle is found in contracts for the sale or lease of a thing, and the like. Here the qualities or characteristics that the owner promises the thing shall have go to describe the thing the buyer promises to accept. If any of the promised traits are missing in the thing offered, the buyer may refuse to accept it—not merely on the ground that he has not been offered the equivalent for keeping his promise, but also on the ground that he never promised to accept what is offered him. We have seen that where the contract contains a statement about the condition of the thing at a time earlier than the moment for accepting it, 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. Still, there are limits to the right of refusal even in this class of cases. If the thing promised is specific, the dominance of that part of the description which identifies the object by reference to the senses is sometimes strikingly shown. One case has gone so far as to hold that performance of an executory contract—one still to be carried out—to purchase a specific thing cannot be refused because the thing fails to come up to the warranted quality.
Footnote: Possibly Behn v. Burness, stated above, might have been dealt with in this way. The ship offered was not a ship that 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.
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 plainly intended to furnish the means for performing the promise on the other. If a tenant promised to make repairs, and the landlord promised to supply him with wood for the purpose, it is believed that today, whatever the old decisions may have been, the tenant's duty to repair would depend on the landlord's supplying the material when it was called for.
Footnote: Mr. Langdell puts this as a case of equivalence, but I believe the explanation above is 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 an 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.
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 plain good sense to hold that giving the security is a condition of performance on the other side, if that is possible. For the demand for security shows that the party making it was not content to rely on the other side's bare promise. He would be forced to rely on it if he had to perform before the security was given, and so the very object of requiring it would be defeated.
This last case suggests what is very forcibly impressed on anyone who studies the cases: that, after all, the most important element of decision is not any technical principle of contracts, or even any general one, but a consideration of the nature of the particular transaction as a practical matter. Suppose 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. Here 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, which promise depends on performance by the other side? Only by reference to the habits of the community and to convenience. It is not enough to say that on the principle of equivalence a man is not presumed to mean to pay for a thing until he has it. The work is payment for the money as much as the money is payment for the work, and one of them must be paid for in advance. The question is why, if one man is not presumed to mean to pay money until he has money's worth, the other is presumed to mean to give money's worth before he has money. No answer can be got from any general theory. The fact that employers as a class can be trusted for wages more safely than the employed can be trusted for their labor, or that the employers have had the power and have been the lawmakers, or other considerations—it does not matter which—have determined that the work is to be done first. But the grounds of decision are purely practical, and can never be drawn out of grammar or logic.
A reference to practical considerations will be found running 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 terms of the contract was one that the names of the vessels should be declared as soon as the wool was shipped. The defense was that the wool had been bought, as both parties knew, to be resold in the course of the defendant's business; that it was an article of fluctuating value, and could not be sold until the names of the ships carrying it had been declared as the contract provided; and that the plaintiff did not declare the names of the vessels as agreed. The court's decision was given by one of the greatest technical lawyers who ever lived, Baron Parke. Yet he never dreamed of giving any technical or merely logical reason for it. After stating the facts deemed material to the question whether declaring the names of the vessels was a condition of the duty to accept—in the words just given—he 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."
Footnote: Mr. Langdell says that a bought note—the broker's written note of a purchase—though part of a bilateral contract, is to be treated as unilateral; that it may be presumed the language of the contract relied on was that of a bought note; and that it was therefore 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 this explanation is from the actual ground of decision will be seen.
In the Lecture on Possession, I tried to show that the idea of possessing a right as such was absurd in itself. All rights are consequences attached to filling some situation of fact. A right that can be acquired by possession differs from others only in this: the situation it is attached to is of a kind that can be filled by different persons one after another, or by anyone at all without regard to whether he fills it lawfully—as is the case where the situation consists in having a tangible object within one's power.
When the law recognizes a right of this sort, there is no difficulty in transferring it. Or, more accurately, there is no difficulty in different persons enjoying similar rights over the same thing one after another. If A, who possesses a horse or a field, gives up the possession to B, the rights 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 the law attaches to those facts now exist for B, as they did for A before. The situation of fact from which the rights spring is a continuing one, and anyone who occupies it, no matter how, has the rights attached to it. But there is no possession possible of a contract. The fact that yesterday A gave B a consideration and received a promise in return cannot be laid hold of by X and transferred from A to himself. The only thing that can be transferred is the benefit or the burden of the promise—and how can these be separated from the facts that gave rise to them? How, in short, can a man sue or be sued on a promise in which he had no part?
Up to this point, in dealing with any particular right or obligation, it has been assumed that the facts from which it sprang were true of the person entitled or bound. But it often happens, especially in modern law, that a person acquires a special right and is allowed to enforce it, although the facts that 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 about.
It will be observed that the problem does not cover the whole field of rights. Some rights cannot be transferred by any device or contrivance—for instance, a man's right to bodily safety or to his reputation. Others, again, are incidents of possession, and within the limits of that idea no other is needed. As Savigny said, "Succession does not apply to possession by itself."
But the idea of possession will carry us only a very little way toward understanding the modern theory of transfer. That theory depends very largely on the idea of succession, to use the word just quoted from Savigny, and so successions will be the subject of this Lecture and the next. I shall begin by explaining the theory of succession to persons who have died. When that is done, I shall pass to the theory of transfer between living people, and shall consider whether any relation can be established between the two.
The first is easily shown to rest on a fictitious identification between the dead man and his successor. As a first step toward the further discussion, and also for its own sake, I shall briefly state the evidence concerning the executor (the person named in a will to settle the dead man's affairs), the heir (the person on whom land descends when its owner dies), and the devisee (the person to whom land is left by will). In order to understand the theory of our law about the first of these, at least, scholars agree 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 still recognize the interest of the lower members of the family in the family property. Heirs are called sui heredes—that is, heirs of themselves, or of their own property—as Gaius explains. The Roman jurist Paulus says that they are regarded as owners in a certain sense even in their father's lifetime, and that after his death they do not so much receive an inheritance as obtain the full power of dealing with their own property.
Starting from this point, it is easy to understand how heirs succeeded to a dead paterfamilias in the Roman system. If the family owned the property that the paterfamilias administered, its rights were unaffected by the death of its temporary head. The family went on, although the head died. And when, probably by a gradual change, the paterfamilias came to be regarded as the owner instead of a mere manager of the family's rights, the nature and continuity of those rights did not change along with the title to them. The familia, the household and all that belonged to it, passed on to the heirs as the ancestor had left it. The heir succeeded not to the ownership of this or that thing separately, but to the whole hereditas, the headship of the family, with certain rights of property attached to it. And of course he took this headship, this right of representing the family's interests, subject to whatever changes the last manager had made.
The whole bundle of the ancestor's rights and duties—or, to use the technical phrase, the total persona he sustained—was easily separated from his natural personality. For this persona was only the sum of what had once been family rights and duties, and originally any individual sustained it only as head of the family. Hence it was said to be carried on by the inheritance, and when the heir took it up, he could bring an action for injuries committed before he did.
So the Roman heir came to be treated as identified with his ancestor for the purposes of the law. And so it is clear how, in that instance, the impossible transfers I am trying to explain were accomplished. Rights to which B, as B, could show no title, he could readily maintain under the fiction that he was the same person as A, whose title nobody denied.
It is not necessary at this point to study family rights in the German tribes. For no one disputes that the modern executor gets his characteristics from the Roman heir. Wills, too, were borrowed from Rome; the Germans whom Tacitus describes did not know them. Administrators—persons appointed to settle an estate where there is no executor—were a later imitation of executors, introduced by statute for cases where there was no will, or where for any other reason there were no executors.
The executor has the legal title to the whole of the testator's personal property, and, generally speaking, the power to dispose of it. Formerly he was entitled to the residue—whatever was left after the bequests had been paid out—if the will did not dispose of it. He took it, one may fairly guess, not as a legatee of those particular chattels, but because he represented the person of the testator, and therefore had all the rights the testator would have had after the distribution if he had been alive. Nowadays the residue is generally left by the will itself, but even now it is not regarded as a specific gift of the chattels that remain undisposed of. I cannot help thinking that this doctrine echoes the one under which the executor took the residue in former times.
No such rule has governed residuary devises of land—gifts by will of "all the rest" of a man's real estate. In England these have always been held to be specific, down to the present day. So if a devise of land should fail, that land would not pass under 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: it is treated as if it had taken effect at that moment. The continuity of the person is preserved by this fiction, as in Rome it was preserved by personifying the inheritance ad interim, in the meantime.
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, the Roman heir, 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." The meaning of this feigned identity has been found in history, but we must also appreciate the help it gave in overcoming a technical difficulty. If the executor represents the person of the testator, there is no longer any trouble about allowing him to sue or be sued on his testator's contracts. In the reign 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." But it is useless to object that the promise sued on was made by A, the testator, and 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 with the help of a fiction—a fiction that reflects, as fictions so often do, the facts of an early stage of society, and that could hardly have been invented if those facts had been otherwise.
Executors and administrators are the chief, if not the only, example of universal succession in English law—succession to a dead man's affairs as a whole, rather than to this or that thing. But although they succeed per universitatem, to the whole, in the way just explained, they do not succeed to every kind of property. The personal property 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 that govern the distribution of chattels. So the question arises whether the English heir, the successor to real estate, shows the same likeness to the Roman heres as the executor does.
The English heir is not a universal successor. Each and every parcel of land descends as a separate and specific thing. Nevertheless, within his narrower sphere he unquestionably represents the person of his ancestor. Different opinions have been held about whether the same was true in early German law. Dr. Laband says that it was; Sohm takes the opposite view. It is commonly supposed that among the German tribes ownership by the family, at least of land, came before ownership by individuals, and it has been shown how naturally representation followed from a similar state of things at Rome. But there is no need to consider whether our law on this subject is of German or Roman origin, because the principle of identification has clearly prevailed from the time of Glanvill to the present day. If the Germans did not know it, 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 like those that gave rise to the principle at Rome. But either way, 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 of the civilians, in whose language it was expressed for so long. For the same reasons, there is also no need to weigh the evidence of the Anglo-Saxon sources, although several passages in their laws make it fairly clear that there was some identification.
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 Anglo-Saxons did not know the office of executor in the sense of an heir, and even in Bracton's time it does not seem to have been what it has since become. So there is no need to go back further than 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 his ancestor had made—that is, to guarantee them to the grantees and their heirs. And if the ancestor's goods were not enough to pay his debts, the heir was bound to make up the shortfall out of his own property. Neither Glanvill nor his Scottish imitator, the Regiam Majestatem, limits this liability to the amount of property the heir inherited from the same source. That makes the identification of heir and ancestor as complete as it was in the Roman law before Justinian introduced such a limit. On the other hand, a century later, Bracton makes it plain that the heir was bound only so far as property had descended to him, and the same limit appears in the early sources of the Continent, Norman and others. The heir's liabilities 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 the ancestor's deed specially binds him to it. The later law required that the heir be named in the deed if he was to be held.
But at any rate, in Bracton's time the identification of heir and ancestor still came close to a universal succession, as another statement of his shows. He asks whether a testator can leave his rights of action by will, and answers no, as far as concerns debts that were not proved and recovered in the testator's lifetime. Actions of that sort belong to the heirs, and must be sued in the secular court. For until such debts are recovered in the proper court, the executor cannot proceed for them in the Church's court.
This shows that the identification worked both ways. The heir was liable for the debts his ancestor owed, and he could recover the debts owed to his ancestor, until 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 his ancestor had sold, to the buyer and the buyer's heirs. After this evidence that the modern heir began by representing his ancestor generally, it is not necessary to hunt for expressions in later books, since his position has since been narrowed. But just as we have seen that the executor is still said to represent the person of his testator, so in the time of Edward I the heir was said to represent the person of his ancestor. And at a much later date it was said that "the heir is in representation in point of taking by inheritance eadam persona cum antecessore"—the same persona as his ancestor.
A great judge who died only a few years ago repeats language that would have been just as familiar to the lawyers of Edward or of James. Baron Parke lays down that in general a party is not required to make profert of an instrument—to produce it in court—when he is not entitled to possess it. Then he 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." (Tortfeasors are wrongdoers; privity is a legal relation between persons that the law treats as binding one by the acts of the other.)
But this is not all. The identity of person was carried further still. If a man died owning land in fee—that is, as an estate of inheritance—and left sons, the land went to the eldest son alone. But if he left only daughters, it descended to them all equally. In that case several individuals together carried on their ancestor's persona. Yet it was always laid down that they were only one heir. To work out this result, not only was one person identified with another, but several persons were reduced to one, so that they might sustain a single persona.
Footnote: The same thing was said where there were several executors: "They are only in the place of one person."
What was the persona? It was not the sum of all the ancestor's rights and duties. We have 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 carried on by the heir was confined from an early day to real estate in its technical sense: that is, to property governed by feudal principles, as distinguished from chattels, which, as Blackstone tells us, include whatever was not a feud, a feudal holding.
But the heir's persona was not even the sum of all the ancestor's rights and duties connected with real estate. It has been said already that every fee descends as a specific thing, and not as part of some larger universitas, some whole. This appears not so much from the fact that different parcels might be governed by different rules of descent, 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 full strength, holding land was only one incident of a complex personal relation. The land was forfeited for failure to render the services for which it was granted; the tenant could renounce the service if the lord broke the duties he owed in return. It rather seems that at the beginning of the feudal period, under Charlemagne, a man could hold land of only one lord. Even when it had become common to hold of more than one, the strict personal relation was modified only enough to save the tenant from having to perform services that conflicted. Glanvill and Bracton tell us that a tenant who held of several lords was to do homage—the ceremony by which a tenant became his lord's man—for each fee, but to reserve his allegiance for the lord of whom he held his chief estate. But if the different lords should make war on each other, and the chief lord should command the tenant to serve him in person, the tenant ought to obey, saving the service due to the other lord for the fee he held of him.
We see, then, that the tenant had a distinct persona, or status, in respect of each of the fees he held. The rights and duties attached to one of them had no relation to the rights and duties attached to another. A succession to one had no connection with the succession to another. Each succession was the taking up of a distinct personal relation, in which the successor was to be determined by the terms of that relation.
The persona we are trying 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 than one person where there are several heirs, as well as by one, just as a corporation may have more members or fewer. But it may not only 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—a lesser interest such as an estate for life—and remainders, the interests that follow it. 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." (The one in reversion is the person to whom the land comes back when the lesser estate ends.) This is only a statement of counsel, to be sure. But it was made to account for a doctrine that seems to need the explanation: that after the death of the tenant for life, the one in reversion might bring error or attaint—a proceeding to overturn a false verdict by a jury—against an erroneous judgment or false verdict given against the tenant for life.
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 came to be confined to real estate, and his liabilities to those connected with real estate and to obligations of his ancestor that expressly bound him. The succession to each fee, or feudal inheritance, is distinct; it is 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 dead man, and are treated as if they were one with him for the purpose of settling their rights and obligations.
The bearing this has on the contracts of the dead man 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 rights by prescription. Take the case of a right of way. A right of way over a neighbor's land can be acquired only by grant, or by using it adversely—as of right, without the owner's leave—for twenty years. A man uses a way for ten years and dies. Then his heir uses it for 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 improve the heir's title that another man trespassed before him? Clearly, if four strangers to each other used the way for five years each, the last would acquire no right. But here the fiction that has been so carefully explained comes in. From the point of view of the law, it is not two persons who have each used the way for ten years, but one who has used it for twenty. The heir has the advantage of sustaining his ancestor's persona, and the right is acquired.
I now come to the most difficult and obscure part of the subject. It remains to be discovered whether the fiction of identity was extended to anyone besides the heir and the executor. And if we find, as we do, that in express terms it went only a little further, the question will still arise whether the way of thinking, and the ideas made possible by the doctrine of inheritance, have not silently changed the law of 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—between living persons.
The difficulty in dealing with the subject is to convince the sceptic that there is anything to explain. Nowadays the idea that a right is valuable is almost the same as the idea that it can 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. At the beginning of this Lecture I put the case of transferring a contract. I have just mentioned the case of gaining a right by prescription when neither party has met the requirement of twenty years' adverse use. In that instance there is not even a right at the time of the transfer, but only the bare fact of ten years' past trespassing. A way, until it becomes a right of way, is just as little capable of being held by a possessory title as a contract is. If, then, a contract can be sold, and if a buyer can add the time of his seller's adverse use 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 lack of it has narrowed the range of things that could be alienated, or transferred. 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, to use our telling metaphor. Suppose that sales and other civil transfers had kept the form of capture in war that they seem to have had in the infancy of Roman law—a form that was partly kept in at least one instance, the acquiring of wives, after the transaction had in fact taken the more civilized shape of a purchase. The idea that the buyer came in as the seller's adversary would probably have gone along with the fiction of a hostile taking, and the buyer would have stood on his own position as founding a new title. Without the help of ideas drawn from some other source, it would have been hard to work out a legal transfer of objects that did not admit of possession.
Footnote: In the American Law Review for October 1872 I mentioned one or two signs of this fact. But I have since had the satisfaction of finding it worked out in such detail and with such learning in Ihering's Spirit of the Roman Law that I cannot do better than refer to that work—only adding that for my purposes it is not necessary to go as far as Ihering, and that he does not seem to have been led to the conclusions it is my object to establish.
A possible source of such other ideas was to be found in family law. The principles of inheritance supplied a fiction and a way of thinking that might at least have been extended into other fields. To prove that they were in fact so extended, it will be necessary to examine the law of Rome once more, as well as what 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 of the Germanic peoples, but mainly for a different purpose from those we shall have to consider in the English law. The purpose was to widen the range of things that could be alienated—given or sold away. It will be remembered that there are many traces of family ownership in early German law, as there are in early Roman law. And it seems that property which originally could not be given outside the family came to be transferred by the device of making the grantee an heir.
The history of language points to this conclusion. The Latin word heres, as Beseler and others have remarked, first meant a successor to the property of a dead person. It was then extended to the donee mortis causa—the person who receives a gift made in contemplation of death—and more broadly still to grantees in general. The verb hereditare was used in the same way for the transfer of land. Laferrière quotes Hevin as pointing out that the ancient usage in French was to say heriter, "to inherit," for buying, heritier, "heir," for the buyer, and desheriter, "to disinherit," for selling.
The texts of the Salic Law give us evidence that cannot be disputed. A man could transfer the whole or any part of his property by delivering possession of it to a trustee, who within twelve months handed it over to the beneficiaries—to those, the text reads, "whom the donor has named heirs" (quos heredes appellavit). Here, then, was a voluntary transfer of as much or as little property as the owner pleased, to persons freely chosen, who were not necessarily universal successors, if they ever were, and who nevertheless took under the name of heirs. The word, which must at first have meant persons taking by descent, was extended to persons taking by purchase. If the word grew in meaning, it was probably because the thought it carried was being turned to new uses. The transaction seems to have stood halfway between the naming of an heir and a sale. The later law of the Ripuarian Franks treats it more plainly as the naming of an heir. It allows a man who has no sons to give all his property to whomever he chooses, relatives or strangers, as an inheritance—either by adfathamire, as the Salic form was called, or by writing, or by delivery.
The Lombards had a similar transfer, in which the donee was not only called heres but was made liable, like an heir, for the donor's debts when he received the property after the donor's death. By the Salic Law, a man who could not pay the wergeld—the price of a life, owed by a killer to the dead man's kin—was allowed to make a formal transfer of his house-lot, and the liability went with it. But that transfer was to the next of kin.
Footnote: This, no doubt, was due to Roman influence. But it recalls what Sir Henry Maine quotes from Elphinstone's History of India about a sale by a member of one of the village communities: "The purchaser steps exactly into his place, and takes up all his obligations."
The house-lot, or family curtilage—the enclosed ground around the dwelling—at first passed strictly within the family. Here again, at least in England, freedom to alienate seems to have grown up by a gradual widening of the choice of successors. The early charters are few, but if we may trust the order of development they seem to show—and it is hard to believe the order is accidental—royal grants at first allowed the grantee to choose his heirs from among his kindred, and then extended the choice 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 of a century later reads, "which let him always possess, and after his death leave to which of his heirs he will." Another says, "and after him with free power (of choice) leave to the man of his kin to whom he wishes to" (leave it). A charter of 736, somewhat earlier, 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 whomever he will; or, in still broader terms, to exchange or grant it in his lifetime and after his death to leave it to whom he chooses; or to sell, exchange, and leave it to whatever heir he chooses. This choice of heirs recalls the "whom he has named heirs" of the Salic Law just mentioned. It 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."
Footnote: The phrase "let him leave it to whichever heir he will" is very common in the later charters. It may be broader than "to whichever of his heirs he will."
A perfect example of a singular succession—a succession to one specific thing rather than to a whole estate—worked out by the fiction of kinship is found in the story of Burnt Njal. This Icelandic saga gives us a living picture of a society hardly more advanced than the Salian Franks as we see them in the Salic Law. A lawsuit was to be transferred by the proper plaintiff to another man who knew the laws better and was better able to carry it on—in fact, to an attorney. But a lawsuit at that time was the alternative to a feud, and both were the private affair of the family concerned. So when a suit for the killing of a member of the family was to be handed over to a stranger, the innovation had to be reconciled with the theory that such a suit belonged only to the next of kin. Mord is to take over Thorgeir's suit against Flosi for killing Helgi, and the form of transfer is described as follows.
Footnote: 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.
"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 take it from thee by law.'" Afterwards these witnesses come before the court and bear witness to the transfer in the same 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, despite the change of hands, as if the next of kin were the plaintiff. A later step in the proceedings shows this. The defendant challenges two members of the court on the ground of their connection with Mord, the transferee, by blood and by baptism. But Mord answers 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 sources to the Roman. These bear most closely on the argument, because much of the doctrine found there has been transplanted unchanged into modern law.
The early Roman law recognized as relatives only those who would have been members of the same patriarchal family, under the same patriarchal authority, if the common ancestor had still been alive. Since wives passed into their husbands' families and lost all connection with the family they were born into, relationship through women was excluded altogether. The heir was someone who traced his relationship to the dead man through males alone. As civilization advanced, this rule was changed. The praetor—the Roman magistrate in charge of the courts—gave the benefits of the inheritance to the blood relations, even though they were not heirs and could not be admitted to the succession under the ancient law. But the change was not made by repealing the old law, which lived on under the name of the jus civile, the civil law proper. The new principle was fitted to the old forms by a fiction. The blood relation could sue on the fiction that he was an heir, although in fact he was not one.
One of the early ways of naming an heir was a sale of the familia—the headship of the family, with all its rights and duties—to the intended heir. This sale of the universitas, the whole bundle of rights and duties taken together, was later extended beyond inheritance to bankruptcy, when it was desired to put the bankrupt's property into the hands of a trustee for distribution. This trustee, too, could use the fiction, and sue as if he had been the bankrupt's heir. One of the great jurists tells us that, in general, universal successors stand in the place of heirs.
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 widen the range of universal successions. But as far as it went, every consequence attached to the original fiction of identity between heir and ancestor followed as a matter of course.
To return 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. Legally speaking there was no adding at all, but one continuous possession.
The express fiction of inheritance perhaps stopped there. But when a similar joining of times was allowed between a legatee or devisee (legatarius)—one who takes a specific thing under a will—and his testator, the same explanation was given. It was said that when a specific thing was left to a person by will, the legatee was in a certain sense quasi an heir—"as if" an heir—so far as having the benefit of the testator's time in possession toward acquiring a title. Yet a legatarius was not a universal successor, and for most purposes stood in sharp contrast with such successors.
Thus the strict law of inheritance had made familiar the notion that one man might have the advantage of a position filled by another, even though he had not filled it himself, or had filled it only in part. And the second fiction, by which a legal heir's privileges, in this respect and in others, had been extended to other persons, broke down the walls that might otherwise have confined those privileges to a single case. A new conception had entered the law, and nothing stood in the way of applying it further. As has been shown, it was applied in so many words to a sale of the universitas for business purposes, and to at least one case in which the succession was limited to a single specific thing. Why, then, might not every gift or sale be treated as a succession, far enough to secure the same advantages?
The joining of times to make out a title was soon allowed between buyer and seller. From the language the Roman lawyers always used, I have no doubt that it was reached in the way I have suggested. A passage from Scaevola (B.C. 30) will be proof enough. Joinder of possessions, he says—that is, the right to add the time of one's predecessor's holding to one's own—plainly 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.
The joining of times is given to those who succeed to the place of another. Ulpian quotes a similar phrase from a jurist of the time of the Antonines: "to whose place I have succeeded by inheritance, or purchase, or any other right." Succedere in locum aliorum, "to succeed to the place of others," like sustinere personam, "to sustain the persona," is the Roman lawyers' expression for those continuations of one man's legal position by another of which the model was the succession of heir to ancestor. Succedere by itself is used to mean "inherit," and successio to mean "inheritance." The succession above all others was the inheritance; and it is believed that hardly an instance will be found in the Roman sources where "succession" does not carry that analogy and point to the taking over, at least in part, of a persona formerly sustained by someone else. It plainly does so in the passage before us.
But the succession that allows a joining of times is not hereditary succession alone. In the passage just 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 set universal successions against those confined to a single specific thing. Ulpian says that a man succeeds to another's place whether his succession is universal or to the single object.
If further evidence were needed 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." A benefit cannot be derived from a persona except by sustaining it.
Footnote: Other cases Ulpian puts may rest on a different fiction. After a precarium ends, for instance—a holding at the owner's pleasure, revocable whenever he likes—the land is treated by a fiction as never having been possessed by the holder at all.
It further appears fairly plainly from Justinian's Institutes and the Digest that the benefit was not extended to purchasers in all cases until quite a late period.
Savigny came very near the truth when he said, somewhat broadly, that "every accessio, for whatever purpose, presupposes nothing else than a relation of juridical succession between the previous and present possessor. For succession does not apply to possession by itself." The accessio is the joining of times. And I may add, by way of further explanation, that every relation of juridical succession presupposes either an inheritance or a relation to which, as far as it goes, the analogies of the inheritance may be applied.
The way of thinking that led to the accessio, or joining of times, is equally visible elsewhere. The time during which a former owner failed to use an easement was charged to the person who had succeeded to his place. The defense that the plaintiff had sold and delivered the thing in dispute was open not only to the purchaser, but to his heirs, or to a second purchaser even before delivery to him, against the seller's successors, whether universal or successors only to the thing in question. If someone used a way wrongfully as against the predecessor in title, the use was wrongful as against the successor too, whether by inheritance, purchase, or any other right. The formal oath of a party to an action was conclusive in favor of his successors, universal or singular. Successors by purchase or gift had the benefit of agreements made with the seller. A multitude of general expressions show that for most purposes, whether in attack or defense, the buyer stood in the shoes of the seller, to use the metaphor of our own law. And what matters more than the result, which could often have been reached by other routes, is that the language and the analogies are drawn throughout from succession to the inheritance.
Footnote: The passage about the unused easement seems to be written of a rural servitude—a right in a neighbor's land, here a right to water—which was lost by mere disuse, without any adverse use by the owner of the burdened land.
Footnote: Savigny argued for reading actore in the passage about the wrongful use of a way; Mommsen, in his edition of the Digest, rejects that reading—rightly, it seems to me.
Understood this way, there could be no 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 joining of times when the possession is wrongful, and the only listed means of succeeding to a thing are by will, sale, gift, or some other right.
The argument now returns to the English law, strengthened by some general conclusions. It has been shown that in both of the systems whose union produced our law, the rules governing conveyance—the transfer of specific things between living persons—were deeply affected by notions drawn from inheritance. It was shown earlier 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. Given their history, it would be remarkable if the same principles had not affected other singular successions too. It will soon appear that they have. Without being too careful about the order of proof, I will take up first the joining of times in prescription, since that has just been discussed so fully. The English law on the subject turns out, on examination, to be the same as the Roman in extent, in reason, and in expression. Indeed it is largely copied from the Roman. For servitudes—rights of way, of light, and the like—make up 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, etc.; 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." So too in a modern case, where by statute twenty years' dispossession extinguished the owner's title, the Court of Queen's Bench said the right would probably pass to the possessor "if the same person, or several persons, claiming one from the other by descent, will 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."
In a word, it is equally clear that the continuous possession of privies in title—persons linked one to the next in a single chain of title, successors in the Roman phrase—has all the effect of the continuous possession of one person, and that no such effect is given 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 used a way to the period of his own use, while one who bought the land can.
Footnote: Of course, if a right had already been acquired before the disseisin, different considerations would apply. If the right claimed is one of those regarded as incident to land, as explained in the following Lecture, the disseisor will have it.
The authorities quoted make it plain that the English law proceeds on the same theory as the Roman. One who buys land from another gets the very same estate 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. He is in of a new fee, although the land is the same; and a good deal of technical reasoning rests on this doctrine.
In the matter of prescription, therefore, buyer and seller were identified, like heir and ancestor. But the question remains whether this identification bore fruit in other parts of the law as well, or whether it stayed confined to one branch, where the Roman law was grafted onto the English stock.
There can be no doubt which answer is more probable, but it cannot be proved without difficulty. As has been said, the heir ceased at an early date to be his ancestor's general representative. And how far even he was identified with the ancestor came to be a matter of dispute. Common sense kept fiction in check 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 since 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—left by will—the analogy applied with particular ease. There is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed; but 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 a legatarius (legatee or devisee) was in a certain sense quasi heres, "as if an heir." The English courts have now and then used similar expressions. In one case a testator owned a rent and divided it by will among his sons, and one of the sons then brought debt for his share. Two of the judges admitted that the testator could not have divided the tenant's liability by a grant or deed in his lifetime, but thought it was otherwise with a division by will. Their reasoning was that "the devise is quasi 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." (Attornment was the tenant's formal acknowledgment of a new landlord; privity is the legal relation that lets one person sue another.) So too Lord Ellenborough said, in a case where a lessor and his heirs were entitled to end a lease on notice, that a devisee of the land, as heres factus—an heir made by the will—would be understood to have the same right.
But wills of land were allowed only exceptionally, by local custom, until the reign of Henry VIII; and since the main doctrines of conveyancing had been settled long before then, we must look further back, and to other sources, for their explanation. We shall find it in the history of warranty. That, and the modern law of covenants running with the land, will be treated in the next Lecture.
A century after the Norman Conquest, the principal contracts known to the common law and suable in the King's Courts were suretyship and debt. The heir, as the general representative of his ancestor's rights and obligations, was liable for the ancestor's debts, and he was the proper person to sue for the debts owed to the estate. By the time of Edward III, in the fourteenth century, this had changed. Debts had ceased to concern the heir except secondarily. The executor took his place, both for collecting debts and for paying them. It is said that even when the heir was bound, he could not be sued unless the executor had no assets.
But there was another ancient obligation which had a different history. I mean the warranty which arose upon the transfer of property—the seller's duty to stand behind the title he had passed. We should call it a contract. But it probably presented itself to the minds of Glanvill's predecessors simply as a duty or obligation which the law attached to a transaction aimed at something else. In the same way, 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 at once accounts 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 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, when a warranty had been made to a grantee who then died, his heir was the only person with an interest in enforcing it, because the land descended to him. So the heir continued to represent his ancestor in the rights and obligations of warranty after the executor had relieved him of the debts, just as, before that time, he had represented his ancestor in every respect.
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. The seller in turn summoned in his own seller, if he had one, and so on, until the suit reached a party in the chain of title who finally took the burden of the case upon himself. To call in a warrantor this way was to "vouch" him; he was then the "vouchee." A contrast which was stated early between the Lombard law and the Roman held equally between the Anglo-Saxon and the Roman. It was said that the Lombard presents his grantor, while the Roman stands in his grantor's shoes—Langobardus dat auctorem, Romanus stat loco auctoris.
Suppose, now, that A gave land to B, and B conveyed it on to C. If C was sued by D, who claimed a better title, C practically got the benefit of A's warranty. When C summoned B, B would summon A, and so A would defend the case in the end. But it might happen that B had died between the time he conveyed to C and the time the action was begun. If B left an heir, C might still be protected. But suppose B left no heir. Then 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 plainly unsatisfactory. We may guess, with a good deal of confidence, that a remedy would be found as soon as there was machinery to make one possible. The machinery was furnished by the Roman law. Under that system the buyer stood in the place of his seller, and a fusion of the Roman rule with the Anglo-Saxon was all that was needed.
Bracton, who modelled his book on the writings of the medieval 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. Then he 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 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."
Here we see that, to entitle the assign—the person to whom the grantee later transferred the land—to the benefit of the first grantor's warranty, assigns had to 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, which is an open offer to whoever comes forward under its terms. Such a conception would have been impossible at that stage of the law. By mentioning assigns, the first grantor did not offer a covenant to anyone who might afterward buy the land. If that had been the notion, a contract would have bound the first grantor directly to the assign as soon as the land was sold, and there would have been two warranties arising from the same clause—one to the first grantee, and a second to the assign. But in fact the assign recovered on the original warranty to the first grantee. He could come on the first grantor only after his immediate grantor's heirs had failed. By mentioning assigns, the first grantor 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 do so only when, the first grantee's blood having failed, the first grantee's feudal relation to the first grantor—his persona—came to be carried on by the assign.
Footnote: Bracton says so in another place: what is said of heirs may equally be said of assigns, and that warranty must be made to assigns by way of the gift is proved by a case in the circuit of W. de Ralegh—"and this especially, if the first chief lord and first feoffor has taken the homage and service of the assign." Bracton also gives the reason which led to assigns being mentioned at all.
This was not only carrying out the fiction with technical consistency; it was using the fiction with good sense, as fictions generally have been used in the English law. In practice it made little difference whether the assign got the benefit of the first grantor's warranty mediately or immediately, so long as he got it. The trouble arose where he could not summon the mesne grantor—the one in the middle of the chain—and the new right was given him for that case alone. Later, the assign did not have to wait for his immediate grantor's blood to fail, but could take advantage of the first grantor's warranty from the beginning.
Footnote: 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.
It might be suggested that all this goes to show that the first grantor's duty to warrant arose from the assign's becoming his man and owing him homage. The answer is that the first grantor 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.
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—that is, only those who held the very estate which that person had held. Looking back to the early procedure, we can see that of course only those in the same chain of title could get the benefit of a former owner's warranty, even at one remove. The ground on which a man was bound to warrant was that he had conveyed the property to the person who summoned him. So a man could summon no one but his own grantor, and the successive vouchers came to an end when the last vouchee could not call on anyone from whom he had bought. Now, when the process was shortened, no one was 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 bound indirectly to defend his title, but no others. So he could summon only those from whom his grantor derived his title. But this was expressed equally well in terms of the fiction. 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 which another formerly sustained. 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," etc.—and it will be remembered that there the word answers to the same requirement of succession.
To return to Bracton: it must be understood that his description of assigns as quasi heredes, "quasi heirs," is not accidental. He describes them that way whenever he has occasion to speak of them. He even pushes the reasoning 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 heirs, in place of heirs, etc.; true heirs by way of succession quasi heirs, etc. by the form of the gift; such as assigns," etc.
If it should be suggested that Bracton's language is only a piece of medieval scholasticism, there are several answers. In the first place, it is nearly contemporary 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," etc. It is not justifiable to assume that a contemporary explanation of a new rule had nothing to do with its appearance. Again, it is clear, as has been shown, that the assign got the benefit of the warranty to the first grantee, not of a new one to himself. And Bracton's explanation of how this was worked out falls in with what we have 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—should hold that same 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 that 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 it could be generalized. It was a promise by deed, and a promise by deed was a covenant. No doubt it was a covenant with peculiar consequences attached to it. It also differed from some other covenants in the scope of its obligation, as will be shown later. But still it was a covenant, and it could sometimes be sued on as such. The Year Books of Edward III speak of it as a covenant which "falls in the blood," as distinguished from those where the acquittance fell on the land and not on the person.
The importance of this circumstance lies in the way the law of warranty worked upon the 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. It was replaced by the covenants which we still find in our deeds—the covenants for title: 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 anyone may see by looking at the earlier decisions.
For instance, the question of 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.
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 given by the original covenantee after the suit had begun. 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." The covenantee, even after assignment, remains the legal party to the contract. The assign comes in under him, and does not end 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, as the original foundation of his rights sank gradually out of sight, the assign got a more independent standing, and a release after assignment became ineffectual, at least in the case of a covenant to pay rent.
Footnote: These cases show an order of development parallel to the history of the assignment of other contracts which are not negotiable.
Only privies in estate with the original covenantee can have the benefit of covenants for title. It has been shown that the earlier history of the ancient warranty required a similar limit on its benefits before the assign was allowed to sue, and that the fiction by which he got that right could not carry it beyond that limit. This analogy also was followed. For instance, a tenant in tail male—one whose estate could pass only to his male descendants—made a lease for years with covenants of right to let and for quiet enjoyment, and then died without male issue. The lessee assigned the lease to the plaintiff. The plaintiff was soon turned out, and brought an action on the covenant against the lessor's executor. It was held that he could not recover, because he was not privy in estate with the original covenantee. The lease, which was the original covenantee's estate, had come to an end before it was assigned to the plaintiff: it ended with the lessor's death and the termination of the estate tail out of which it had been granted.
The only point still needed to make the analogy between covenants for title and warranty complete was a requirement that assigns be mentioned before they could sue. In modern times, of course, such a requirement, if it existed, would be purely formal. It would matter only as an ear-mark by which to trace the history of a doctrine. It would help 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 exists 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—one of its built-in contradictions—which must now be explained.
So far as we have gone, we have found that wherever 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, derived from the analogy of inheritance. We have seen this identification consciously worked out in the creation of the executor, whose entire status is governed by it. We have seen it still consciously applied in the narrower sphere of the heir. And we have found it hidden at the root of the relation between buyer and seller in at least two cases, prescription and warranty, when the history of that relation is dug into deeply enough.
But although it would be more symmetrical if this analysis exhausted the subject, there is another class of cases in which rights are transferred on a wholly different plan. In the last Lecture, explaining the succession between buyer and seller by which a prescriptive right is created—such as a right of way over neighboring land to the land bought and sold—I showed that a man who had wrongfully taken possession of the land by force, instead of buying it, would not be treated as a successor, and would get no benefit from his disseisee's earlier use of the way. But when the former possessor has already gained a right of way before he is turned out, a new principle comes into play. Suppose the owner of the land over which the way ran stopped it up, and was sued by the wrongful possessor. A defence 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 everyone but the rightful owner, and he would be protected equally in his use of the way. This rule of law does not rest on a succession between the wrongful possessor and the owner, which is out of the question. Nor can it be defended on the same ground as the protection given to the occupation of the land itself. That ground is that the law defends possession against everything except a better title. But, as I have said before, the common law does not recognize possession of a way. A man who has used a way for ten years without title cannot sue even a stranger for stopping it. He was a trespasser at the beginning, and he is nothing but a trespasser still. There must be a right against the servient owner—the owner of the land the way runs over—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 we now have to deal with was shown in its theological stage, to borrow Comte's well-known phrase, as where an axe was made the object of criminal process; and also in its metaphysical stage, where only the language of personification survived, but survived to confuse reasoning. The case I have put seems to illustrate the latter. The language of the law of easements was built up out of similes drawn from persons at a time when noxal surrender was still familiar. Then, as often happens, language reacted upon thought, and conclusions about the rights themselves were drawn 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 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.
The French commentator Rogron deduced the negative nature of servitudes—the Roman name for easements—from the rule that the land owes the services, not the person: Praedium non persona servit. For, said Rogron, since the land alone is bound, it can be bound only passively. Austin called this an "absurd remark." But the jurists from whom we have inherited our law of easements were content with no better reasoning. Papinian himself wrote that servitudes cannot be partially extinguished, because they are owed by lands, not by persons. Celsus decides in this way the very case I took for my illustration: even if possession of a dominant estate is acquired by forcibly throwing out the owner, the way will be retained, since the estate is possessed in the quality and condition in which it is taken. The commentator Godefroi tersely adds that there are two such conditions, slavery and freedom; and his antithesis is as old as Cicero. So, in another passage, Celsus asks what else the rights attaching to land are but qualities of that land. So Justinian's Institutes speak of servitudes which inhere in buildings. So Paulus speaks of such rights as being accessory to bodies. "And thus," adds Godefroi, "rights may belong to inanimate things." It followed easily from all this that a sale of the dominant estate carried existing easements with it—not because the buyer succeeded to the seller's place, but because land is bound to land.
All these figures imply 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.'" But if this means anything more than an explanation of what the Roman metaphors imply, 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. It could not sue or be sued, as a ship can in the admiralty. No one supposes that its possessor could maintain an action for an interference with an easement that happened before his time, as an heir could for an injury to property of the hereditas jacens—the estate lying vacant between the death and the heir's entry. If land had ever been systematically treated as capable of acquiring rights, the time of a disseisee might have been added to that of the wrongful occupant. The ground would have been that the land, and not this or that individual, was gaining the easement, and that a long association between the enjoyment of the privilege and the land was enough. That has never been the law.
All that can be said is that the metaphors and similes naturally led to the rule which has prevailed. And since this rule was as good as any other, or at least was unobjectionable, it was drawn from the figures of speech without attracting attention, before anyone had seen that they were only figures, which proved nothing and justified no conclusion.
Because 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, is taken possession of along with the land to which it runs, and is protected in its enjoyment 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 through 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." "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." "[A servitude] may be called an arrangement by which house is subjected to house, farm to farm, holding to holding." 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"—its attached rights—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." 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."
Footnote: All these passages assume that a right has already been acquired and inheres in the land.
There is no doubt about the later law, as was said at the outset.
We have thus traced into our law two competing and mutually inconsistent principles. 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 wavered a little, from a sense that the two might come into conflict. The benefit of a warranty was confined to those who, by the act and consent of the grantee, succeeded to his place. It did not pass to assigns unless assigns were mentioned. Bracton supposes grants of easements both with and without mention of assigns, which looks as if he thought the difference might matter with regard to easements also. He further says that if an easement is granted to A, his heirs and assigns, all of these are allowed the use in succession by the form of the grant, and all others are wholly excluded. But he is not speaking of what a disseisor's rights would be as against someone without a better title, and he immediately adds that these are rights over a bodily object belonging to a bodily object.
It may be doubted whether the mention of assigns was ever necessary to attach an easement to land, and it is very certain that it did not stay necessary for long. Even so, the difficulty I have 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 might then have been said that these were limited interests in land, less than ownership in extent but like it in kind, and therefore properly transferred by the same means as ownership. 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, though more troublesome to him than to others, is the same as everyone else's. It is the purely negative duty not to obstruct or interfere with a right of property.
But although the test of which rights go with the land may have been something of that kind, it will not help us understand the cases without a good deal of explanation. For such rights might exist to active services, which had to be performed by whoever 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 such rights were regarded. Bracton argues that it is no wrong to the lord for the tenant to alienate—to transfer—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. It is the tenement which imposes the obligation of homage, and the same is true of villein and other feudal services.
The law remained unchanged when feudal services took the form of rent. Even in our modern leases for a term of years, rent is still treated as something issuing out of the leased premises. So to this day, if you hire a whole house and it burns down, you have to pay without abatement, because you still have the land out of which the rent issues. But if you hire only 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.
It is obvious that this reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and the early law adopted that conclusion. The lord could demand the services, or collect the rent, from anyone who had the land, because, as was said in language very like Bracton's, "the charge of the rent goes with the land."
Then as to the right to the rent. In early law rent was treated as a real right—a right in a thing—of which a man could be disseised, and for which a possessory action could be brought. If, as was very often the case, the leased land lay within a manor, the rent was parcel of the manor—a part of it. So 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 to it. 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." 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: so it comes about that things are owed to a thing by a thing.
Different principles might have applied when the rent was not parcel of a manor, but only part of the reversion. If the lease and the 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. So it would seem that in such a case the tenant could refuse to pay him rent, and that paying him would be no defence against the true owner. Nevertheless, if the tenant recognized the disseisor, the disseisor would be protected against those who could not show a better title. 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. Yet escheat meant the extinction of the fee of which the lease and rent were parts. Bracton regarded the lord as coming in under the tenant's title, pro herede—in the heir's place, in privity—but it was soon correctly settled that he did not; he came in paramount, by a title above the tenant's. This instance, therefore, comes very near that of a disseisor.
Services and rent, then, were, and to some extent still are, dealt with by the law from the point of view of property. They were things that could be owned and transferred like other property. They could be possessed even by a wrongdoer, and possessory remedies were given for them.
No such notion was applied to warranties, or to any right that was regarded wholly from the point of view of contract. And when we turn to the history of those remedies for rent that sounded in contract, we find that the law regarded them in just that way. The actions of debt and covenant could not be maintained without privity. In the ninth year of Henry VI (1430–31) it was doubted whether an heir who had inherited the reversion could bring debt for the rent. 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. In the reign of Henry VII the remedy was extended to the devisee, the person who took the reversion under a will. He, as I remarked above, seemed more akin to the heir than a grantee did, and was more easily likened to him. It was then logically necessary to give assigns the same action, and this followed. The privity of contract followed the estate, so that the assignee of the reversion could sue whoever then held the term of the lease. On like grounds he was afterwards allowed to maintain covenant. But these actions have never been allowed for or against persons who were not privy in estate with the lessor and the lessee respectively, because privity to the contract could never be worked out without succession to the title.
However, all these niceties had no application to the old freehold rents of the feudal period, because the contractual remedies did not reach them until the time of Queen Anne. 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, which asked that the plaintiff be put back into possession.
The allowance of contractual remedies shows something about rent and feudal services of that kind. They were dealt with as things capable of possession, and looked at generally from the point of view of property rather than contract; yet they come much nearer to the nature of a contract than a mere duty not to interfere with a right of way does. Other cases come nearer still. In early law, prescription and custom impose active duties over a wide field. Sometimes the duty is attached 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.
Here are instances of different kinds. A parson might be bound by custom to keep a bull and a boar for the use of his parish. A right could be attached to a manor by prescription to have a convent sing in the manor chapel. A right might be gained by the same means to have certain land fenced by the owner of the neighboring lot. 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 things that could be granted. It may be conceded that in many cases where the statement sounds strange to modern ears, the obligation was regarded as falling on the land alone, and not on the person of the tenant. And it may be conjectured that this view arose naturally and reasonably because there was originally no remedy to compel performance of such services except a distress—a seizure of goods—levied on the servient land.
Footnote: I assume 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 belong only to human beings.
But any such distinction between obligations for which the primitive remedy was distress alone, and all others, if it ever existed, must soon have faded from view. After the last examples, the line between rights that can be deemed rights of property and rights that are mere contracts is hard to see. 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 two competing principles of transfer—succession on the one side, and possession of the 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 the 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 way the right was acquired, and none was attempted. As the right was not confined to assigns, there was no need to mention assigns. In modern times at least, if not in early law, such rights can be created by covenant as well as by grant. And on the other hand, it is ancient law that an action of covenant may be maintained upon an instrument of grant. The result of all this was that, in such cases, not only a right created by covenant but the action of covenant itself might go to assigns even though they were not mentioned—and this at a time when mentioning them was essential to give them the benefit of a warranty.
Footnote: The action is case in the Prior of Woburn's Case. The old Natura Brevium of Fitzherbert says, in a note, that the writ for fencing a close lay only upon a prescriptive right, and that if the duty to fence rested on an indenture the plaintiff was put to his writ of covenant. But see what is said below.
Logically, these premises led one step farther. Not only assigns who were not named, but disseisors, should have been allowed to maintain their action on the contract, since they had the right arising out of it. Indeed, if the plaintiff had a right which, if 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 we have seen in the case of rent, it did not follow in practice that because a man had a right he had the contractual remedies for it. Covenant required a specialty, but prescription was said to be a good enough specialty. Where, then, was the line to be drawn between covenants that passed only to successors and those that went with the land?
The difficulty becomes more striking the further we examine the early law. For side by side with the personal warranty discussed so far, there was another warranty, not yet mentioned, by which particular land alone was bound. 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." 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. Fleta writes that every possessor will be held. There cannot be a doubt that a disseisor would have been bound just as much as one whose possession was lawful.
Footnote: The printed text of Bracton reads that the thing goes "with the man" (cum homine); that is obviously a misprint for "with its burden" (cum onere).
We are now ready for a case decided under Edward III. It has been discussed from the time of Fitzherbert and Coke down to Lord St. Leonards and Mr. Rawle; it is still law; and it is said to remain unexplained to this day. It shows the judges hesitating between the two conceptions to which this Lecture has been devoted. If those conceptions are understood, I think the explanation will be clear.
Pakenham brought covenant, as heir of the covenantee, against a prior. The covenant had been made by the defendant's predecessor with the plaintiff's great-grandfather, and it promised that the prior and convent would 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 living within the manor. But, not daring to rest his case on that, he pleaded that the plaintiff was not the heir—his elder brother was. The plaintiff replied that he was tenant of the manor: his great-grandfather had enfeoffed a stranger, who had enfeoffed the plaintiff and his wife, so that the plaintiff was tenant of the manor by purchase and privy to the ancestor. He added that the services had been rendered from a time whereof the memory of man ran not to the contrary.
It is evident from these pleadings that assigns were not mentioned in the covenant, and so it has always been taken. It also appears that the plaintiff was trying to stand on two grounds. The first was privity, as descendant and assign of the covenantee. The second was that the service was attached to the manor, by covenant or by prescription, so that he could maintain covenant as tenant of the manor, whichever source the duty arose from.
Justice Finchden put the case of parceners—co-heirs dividing an inheritance—making partition, and one of them covenanting with the other to acquit him of suit, that is, to discharge him of the duty of attending a lord's court. A purchaser has the benefit of that covenant. Belknap, for the defendants, agreed, but distinguished it. In that case, he said, the acquittance falls on the land and not on the person. (That is to say, such obligations follow the analogy of easements. As the burden falls on what is in effect a servient estate, the benefit goes with the dominant land to assigns, whether they are mentioned or not, and these obligations 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—it falls on the person, not on the land.)
Finchden answered: all the more so in this case. For there the action 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.
Justice Wichingham: "If the king grants warren"—the right to keep and hunt game—"to another who is tenant of the manor, he shall have warren, etc.; 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." (Appendant means attached to it as a part.)
Chief Justice Thorpe, 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, 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: 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 had counted on any such prescription. But Thorpe said he had, and "we bear record of it," and the case was adjourned.
Footnote: Both editions of the Year Books have a colon here, marking the beginning of a new argument.
It will be seen that the discussion followed the lines marked out by the pleadings. One judge thought the plaintiff was entitled to recover as tenant of the manor. The other puisne—junior—judge doubted it, but agreed that the case must be argued on the analogy of easements. The Chief Justice first suggested that there might be sufficient privity, since the plaintiff was privy in blood and might be heir; then he turned to the other argument as more promising, and evidently founded his opinion on it. It would almost seem that he considered a prescriptive right enough to support the action, and it is pretty clear that he thought a disseisor would have had the same rights as the plaintiff.
In the reign of Henry IV another case arose, on 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 approached from the side of contract, the heir was a 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 it had been made to the lord of the manor. It seems to have been thought that such a covenant might go either way, according to whether 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 had been made with the lord of the manor, who had inheritance in the manor, ou issint come determination poit estre fait"—or in some such way that a determination could be made—"it would be otherwise." This was admitted. It was assumed that the covenant had not been made so as to attach to the manor; and the court, observing that the service was spiritual rather than temporal, were inclined to think the heir could sue. The defendant accordingly pleaded over and set up a release. It will be seen how fully this agrees with the earlier case.
Footnote: It was quite possible for two liabilities to exist side by side.
The distinction Markham drew is stated very clearly in a case reported by Lord Coke. In the argument of Chudleigh's Case the line is drawn this way: "Always, the warranty as to voucher requires privity of estate to which it was annexed," (that is, 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, etc., 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." (Commons are rights to pasture or take things from another's land; an advowson is the right to name the parson of a church; an abator or intruder is one who wrongfully steps into land before the rightful heir can.) And this, it seems to me, is the nearest approach that has ever been made to the truth.
In his Commentary on Littleton, Coke draws a distinction between a warranty, which binds the party to yield lands in recompense, and a covenant annexed to the land, which yields only damages. If Lord Coke had meant to distinguish between warranties and all the covenants that in our loose modern sense are said to run with the land, this statement would be less satisfactory than the one just quoted.
A warranty was a covenant that sometimes yielded only damages, and a covenant in the old law sometimes yielded land. 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 rested on a right of property in a thing or simply on a contract for it. Covenant was brought for a freehold under Edward I; and under Edward III it seems that a mill could be pulled down by the same action, when it was kept up contrary to an easement created by covenant. 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, the statement, as Lord Coke meant it, is perfectly consistent with the other and more important distinction—between warranties, on the one hand, and rights in the nature of easements, or covenants creating such rights, on the other. For Lord Coke's examples are confined to covenants of the second sort; they are in fact just the cases from the Year Books stated above.
Later writers, however, have wholly forgotten the distinction, and so it has failed to settle the disputed line between the conflicting principles. Covenants that started from the analogy of warranties, and others to which the language and reasoning of easements were applied, have been lumped together under the title of covenants running with the land. The phrase "running with the land" is appropriate only to covenants that 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 at once every distinction became doubtful. It had probably been necessary to mention assigns in covenants for title, as it certainly had been to give them the benefit of the ancient warranty; for this seems to have been the formal mark of the covenants that 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 for another? And if it was necessary for one, why not for all? In modern times the need for such mention has been supposed to be governed by a fanciful rule of Lord Coke's. On the other hand, the question is raised whether covenants that ought to pass irrespective of privity are not governed by the same rule that governs warranties.
These questions have not lost their importance. Covenants for title are in every deed, and other covenants, which, as it remains to show, belong to the other class, are only a little less common.
Chief among these is the covenant to repair. It has already been observed that an easement of fencing may be annexed to land, and I asked then what difference in kind there was between a right to have another person build such structures and a right to have him repair structures already built. There is evidence that the likeness was perceived. Only, since such covenants are rarely if ever made except in leases, there is always privity with the original parties. For the lease could not go by disseisin, and the reversion would not be likely to.
The Dean of Windsor's Case decides that such a covenant binds an assignee of the term, although he is not named. It is reported in two books of the highest authority: one reporter was Lord Coke, the other Croke, who was also a judge. Croke gives the reason this way: "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." The Latin means "because the land passes with its burden." This is the reason that governed easements, and the very phrase used to explain why every possessor was bound by a covenant that bound 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"—in a manner appurtenant to it. Again the language of easements. And to make this plainer, if need be, he adds, "If a man grants to one estovers to repair his house, it is appurtenant to his house." Estovers—wood a tenant may take for repairs—went with the land for repair, like other rights of common, 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 the same way to the benefit of the covenant, because "it is a covenant which runs with the land." 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; and, it would seem, to a covenant to keep land properly manured.
If the analogy that led to this class of decisions were followed out, a disseisor could sue or be sued on such covenants, if the other facts were of a kind to raise the question. Nothing but the novelty of the proposition 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 imply 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.
The language commonly used, however, throws doubt and darkness over this and every other question connected with the subject. That is a consequence, already referred to, of lumping together covenants for title and the class last discussed under the name of covenants running with the land. According to the general opinion, in the latter class of cases there must be privity of estate between covenantor and covenantee in order to bind the covenantor's assigns. Some have supposed this privity to be tenure; some, an interest of the covenantee in the covenantor's land; and so on. The first notion is false, the second misleading, and the proposition they are applied to 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. It is never necessary between covenantor and covenantee, or between any other persons, except between the present owner and the original covenantee. And on principle it is necessary between them only in those cases—such as warranties, and probably covenants for title—where the covenants are regarded wholly from the side of contract, and so the benefit goes by way of succession and not with the land.
Footnote: The phrase is used in a somewhat different sense in describing the relation between a tenant for life or years and a reversioner. The privity between them follows as an accidental consequence of their being as one tenant, and sustaining a single persona between them.
If it should now be asked again, 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, given the state of the authorities. The following propositions may be of some use.
A. With regard to covenants that go with the land:
(1.) Where, either by tradition or by good sense, the burden of the obligation would be said, in a kind of shorthand, to fall on the land of the covenantor, the creation of such a burden is in theory a grant, a transfer of a partial interest in that land to the covenantee. Since 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 whose burden does not fall upon land even in theory, but whose benefit might go at common law with the land it benefited. This is the case of singing and the like by a convent. It will be observed that the service, although it does not fall 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 that go only with the estate in the land:
In general, the benefit of covenants that cannot be likened to grants, and whose burden 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 circle 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 anyone other than the party to the contract can sue on it. Hence the plaintiff must always be privy in estate with the covenantee.
C. It is impossible, however, to tell by general reasoning what rights English law will hold to belong to the first class, or where the line will be drawn between the two. The authorities must be consulted as an arbitrary fact. It might sometimes seem that the test of the first class was whether the service was of a kind capable of being granted, so that if it rested purely in covenant it would not follow the land. But if this test were accepted, it has already been shown that, apart from tradition, some services that do follow the land could only be matter of covenant. Baron Parke calls the grant of light and air, a well-established easement, a covenant not to build on the servient land to the injury of the light. And although that might be doubted, we have seen that at least one well-established easement, that of fencing, can no more properly be considered a right granted out of the servient land than a hundred other services that would be merely matter of contract, if the law allowed them to be annexed to land in the same way. The duty to repair exists only by way of covenant, yet the reasoning of the leading cases is drawn from the law of easements. On the other hand, a covenant by a lessee to build a wall on the leased premises was held, in Spencer's Case, not to bind assigns unless they were mentioned; but Lord Coke says it would have bound them if it had purported to. The analogy of warranty makes its appearance, and throws doubt on the fundamental principle of the case. We can only say that the application 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. That case has now been analyzed, and its influence on the law has been traced. But the principle of such transfers is plainly anomalous, and does not affect the general doctrine of the law. The general doctrine is the one we have seen illustrated in prescription, in warranty, and in the covenants that followed the analogy of warranty. Another illustration, not yet mentioned, is to be found in the law of uses.
In old times a use—the right of a person for whose benefit land was held by another, the feoffee to uses—was a chose in action, a right enforceable only by suit. That is, it was regarded very nearly from the point of view of contract, and it had a history like the one traced in the other cases. At first it was doubted whether proof of such a secret trust ought to be allowed at all, even against the heir. It was allowed in the end, and then the principle of succession was extended to the assign. But it never went further. Only those who were privy in estate with the original feoffee to uses were bound by the use. A disseisor was no more bound by the confidence placed in the man he had disseised than he was entitled to vouch that man'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, 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 feoffor] 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." To be "in the per" was to hold through the feoffees, by title derived from them; to be "in the post" was to come in by a title of one's own, paramount to theirs.
To this day it is said that a trust is annexed in privity to the person and to the estate (which means, to the persona). It is not regarded as issuing out of the land, like a rent. So while a rent binds everyone who has the land, however he came by it, a disseisor is not bound by the trust. The case of the lord who takes by escheat has been doubted; and it will be remembered that Bracton and later authors differ over whether he comes in as a quasi heir or as a stranger.
Then as to the benefit of the use. We are told that the right to sue the subpoena—the writ by which the Chancellor enforced a use—did pass down to the heir, on the ground that the heir is the same person as his ancestor, but that it was not assets, not property available to pay the ancestor's debts. The cestui que use, the person for whose benefit the use was held, was given power to sell by an early statute. But as to trusts, Lord Coke tells us that in the reign of Queen Elizabeth 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." Uses and trusts could both be left by will from an early day, however, and now trusts are as freely transferable as any form of property.
The history of early law everywhere shows that the difficulty of transferring a mere right was keenly felt when the situation of fact from which it sprang could not be transferred along with it. Analysis shows that the difficulty is real. The fiction that made such a transfer conceivable has now been explained, and its history has been followed until we have seen it 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, 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.