THE COMMON LAW

By Oliver Wendell Holmes, Jr.

CONTENTS

LECTURE I. — EARLY FORMS OF LIABILITY.

LECTURE II. — THE CRIMINAL LAW.

LECTURE III. — TORTS.—TRESPASS AND
NEGLIGENCE.

LECTURE IV. — FRAUD, MALICE, AND INTENT.—THE
THEORY OF TORTS.

LECTURE V. — THE BAILEE AT COMMON LAW.

LECTURE VI. — POSSESSION.

LECTURE VII. — CONTRACT.—I. HISTORY.

LECTURE VIII. — CONTRACT. II. ELEMENTS.

LECTURE IX. — CONTRACT.—III. VOID
AND VOIDABLE.

LECTURE X. — SUCCESSIONS AFTER DEATH.

LECTURE X. — SUCCESSIONS INTER VIVOS

LECTURE XI. — SUCCESSIONS.—II. INTER
VIVOS.

FOOTNOTES

LECTURE I. — EARLY FORMS OF LIABILITY.

[1] The object of this book is to present a general view of the Common
Law. To accomplish the task, other tools are needed besides logic. It is
something to show that the consistency of a system requires a particular
result, but it is not all. The life of the law has not been logic: it has
been experience. The felt necessities of the time, the prevalent moral and
political theories, intuitions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellow-men, have had a
good deal more to do than the syllogism in determining the rules by which
men should be governed. The law embodies the story of a nation’s
development through many centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a book of mathematics. In
order to know what it is, we must know what it has been, and what it tends
to become. We must alternately consult history and existing theories of
legislation. But the most difficult labor will be to understand the
combination of the two into new products at every stage. The substance of
the law at any given time pretty nearly [2] corresponds, so far as it
goes, with what is then understood to be convenient; but its form and
machinery, and the degree to which it is able to work out desired results,
depend very much upon its past.

In Massachusetts today, while, on the one hand, there are a great many
rules which are quite sufficiently accounted for by their manifest good
sense, on the other, there are some which can only be understood by
reference to the infancy of procedure among the German tribes, or to the
social condition of Rome under the Decemvirs.

I shall use the history of our law so far as it is necessary to explain a
conception or to interpret a rule, but no further. In doing so there are
two errors equally to be avoided both by writer and reader. One is that of
supposing, because an idea seems very familiar and natural to us, that it
has always been so. Many things which we take for granted have had to be
laboriously fought out or thought out in past times. The other mistake is
the opposite one of asking too much of history. We start with man full
grown. It may be assumed that the earliest barbarian whose practices are
to be considered, had a good many of the same feelings and passions as
ourselves.

The first subject to be discussed is the general theory of liability civil
and criminal. The Common Law has changed a good deal since the beginning
of our series of reports, and the search after a theory which may now be
said to prevail is very much a study of tendencies. I believe that it will
be instructive to go back to the early forms of liability, and to start
from them.

It is commonly known that the early forms of legal procedure were grounded
in vengeance. Modern writers [3] have thought that the Roman law started from
the blood feud, and all the authorities agree that the German law begun in
that way. The feud led to the composition, at first optional, then
compulsory, by which the feud was bought off. The gradual encroachment of
the composition may be traced in the Anglo-Saxon laws, /1/ and the feud
was pretty well broken up, though not extinguished, by the time of William
the Conqueror. The killings and house-burnings of an earlier day became
the appeals of mayhem and arson. The appeals de pace et plagis and of
mayhem became, or rather were in substance, the action of trespass which
is still familiar to lawyers. /2/ But as the compensation recovered in the
appeal was the alternative of vengeance, we might expect to find its scope
limited to the scope of vengeance. Vengeance imports a feeling of blame,
and an opinion, however distorted by passion, that a wrong has been done.
It can hardly go very far beyond the case of a harm intentionally
inflicted: even a dog distinguishes between being stumbled over and being
kicked.

Whether for this cause or another, the early English appeals for personal
violence seem to have been confined to intentional wrongs. Glanvill /3/
mentions melees, blows, and wounds,—all forms of intentional
violence. In the fuller description of such appeals given by Bracton /4/
it is made quite clear that they were based on intentional assaults. The
appeal de pace et plagis laid an intentional assault, described the nature
of the arms used, and the length and depth of the wound. The appellor also
had [4]
to show that he immediately raised the hue and cry. So when Bracton speaks
of the lesser offences, which were not sued by way of appeal, he instances
only intentional wrongs, such as blows with the fist, flogging, wounding,
insults, and so forth. /1/ The cause of action in the cases of trespass
reported in the earlier Year Books and in the Abbreviatio Plaeitorum is
always an intentional wrong. It was only at a later day, and after
argument, that trespass was extended so as to embrace harms which were
foreseen, but which were not the intended consequence of the defendant’s
act. /2/ Thence again it extended to unforeseen injuries. /3/

It will be seen that this order of development is not quite consistent
with an opinion which has been held, that it was a characteristic of early
law not to penetrate beyond the external visible fact, the damnum corpore
corpori datum. It has been thought that an inquiry into the internal
condition of the defendant, his culpability or innocence, implies a
refinement of juridical conception equally foreign to Rome before the Lex
Aquilia, and to England when trespass took its shape. I do not know any
very satisfactory evidence that a man was generally held liable either in
Rome /4/ or England for the accidental consequences even of his own act.
But whatever may have been the early law, the foregoing account shows the
starting-point of the system with which we have to deal. Our system of
private liability for the consequences of a man’s own acts, that is, for
his trespasses, started from the notion of actual intent and actual
personal culpability.

The original principles of liability for harm inflicted by [5] another
person or thing have been less carefully considered hitherto than those
which governed trespass, and I shall therefore devote the rest of this
Lecture to discussing them. I shall try to show that this liability also
had its root in the passion of revenge, and to point out the changes by
which it reached its present form. But I shall not confine myself strictly
to what is needful for that purpose, because it is not only most
interesting to trace the transformation throughout its whole extent, but
the story will also afford an instructive example of the mode in which the
law has grown, without a break, from barbarism to civilization.
Furthermore, it will throw much light upon some important and peculiar
doctrines which cannot be returned to later.

A very common phenomenon, and one very familiar to the student of history,
is this. The customs, beliefs, or needs of a primitive time establish a
rule or a formula. In the course of centuries the custom, belief, or
necessity disappears, but the rule remains. The reason which gave rise to
the rule has been forgotten, and ingenious minds set themselves to inquire
how it is to be accounted for. Some ground of policy is thought of, which
seems to explain it and to reconcile it with the present state of things;
and then the rule adapts itself to the new reasons which have been found
for it, and enters on a new career. The old form receives a new content,
and in time even the form modifies itself to fit the meaning which it has
received. The subject under consideration illustrates this course of
events very clearly.

I will begin by taking a medley of examples embodying as many distinct
rules, each with its plausible and seemingly sufficient ground of policy
to explain it.

[6] A man has an animal of known ferocious habits, which escapes and does
his neighbor damage. He can prove that the animal escaped through no
negligence of his, but still he is held liable. Why? It is, says the
analytical jurist, because, although he was not negligent at the moment of
escape, he was guilty of remote heedlessness, or negligence, or fault, in
having such a creature at all. And one by whose fault damage is done ought
to pay for it.

A baker’s man, while driving his master’s cart to deliver hot rolls of a
morning, runs another man down. The master has to pay for it. And when he
has asked why he should have to pay for the wrongful act of an independent
and responsible being, he has been answered from the time of Ulpian to
that of Austin, that it is because he was to blame for employing an
improper person. If he answers, that he used the greatest possible care in
choosing his driver, he is told that that is no excuse; and then perhaps
the reason is shifted, and it is said that there ought to be a remedy
against some one who can pay the damages, or that such wrongful acts as by
ordinary human laws are likely to happen in the course of the service are
imputable to the service.

Next, take a case where a limit has been set to liability which had
previously been unlimited. In 1851, Congress passed a law, which is still
in force, and by which the owners of ships in all the more common cases of
maritime loss can surrender the vessel and her freight then pending to the
losers; and it is provided that, thereupon, further proceedings against
the owners shall cease. The legislators to whom we owe this act argued
that, if a merchant embark a portion of his property upon a hazardous
venture, it is reasonable that his stake should be confined to what [7] he puts
at risk,—a principle similar to that on which corporations have been
so largely created in America during the last fifty years.

It has been a rule of criminal pleading in England down into the present
century, that an indictment for homicide must set forth the value of the
instrument causing the death, in order that the king or his grantee might
claim forfeiture of the deodand, “as an accursed thing,” in the language
of Blackstone.

I might go on multiplying examples; but these are enough to show the
remoteness of the points to be brought together.—As a first step
towards a generalization, it will be necessary to consider what is to be
found in ancient and independent systems of law.

There is a well-known passage in Exodus, /1/ which we shall have to
remember later: “If an ox gore a man or a woman, that they die: then the
ox shall be surely stoned, and his flesh shall not be eaten; but the owner
of the ox shall be quit.” When we turn from the Jews to the Greeks, we
find the principle of the passage just quoted erected into a system.
Plutarch, in his Solon, tells us that a dog that had bitten a man was to
be delivered up bound to a log four cubits long. Plato made elaborate
provisions in his Laws for many such cases. If a slave killed a man, he
was to be given up to the relatives of the deceased. /2/ If he wounded a
man, he was to be given up to the injured party to use him as he pleased.
/3/ So if he did damage to which the injured party did not contribute as a
joint cause. In either case, if the owner [8] failed to surrender the
slave, he was bound to make good the loss. /1/ If a beast killed a man, it
was to be slain and cast beyond the borders. If an inanimate thing caused
death, it was to be cast beyond the borders in like manner, and expiation
was to be made. /2/ Nor was all this an ideal creation of merely imagined
law, for it was said in one of the speeches of Aeschines, that “we banish
beyond our borders stocks and stones and steel, voiceless and mindless
things, if they chance to kill a man; and if a man commits suicide, bury
the hand that struck the blow afar from its body.” This is mentioned quite
as an every-day matter, evidently without thinking it at all
extraordinary, only to point an antithesis to the honors heaped upon
Demosthenes. /3/ As late as the second century after Christ the traveller
Pausanias observed with some surprise that they still sat in judgment on
inanimate things in the Prytaneum. /4/ Plutarch attributes the institution
to Draco. /5/

In the Roman law we find the similar principles of the noxoe deditio
gradually leading to further results. The Twelve Tables (451 B.C.)
provided that, if an animal had done damage, either the animal was to be
surrendered or the damage paid for. /6/ We learn from Gains that the same
rule was applied to the torts of children or slaves, /7/ and there is some
trace of it with regard to inanimate things.

The Roman lawyers, not looking beyond their own [9] system or their own time,
drew on their wits for an explanation which would show that the law as
they found it was reasonable. Gaius said that it was unjust that the fault
of children or slaves should be a source of loss to their parents or
owners beyond their own bodies, and Ulpian reasoned that a fortiori this
was true of things devoid of life, and therefore incapable of fault. /1/
This way of approaching the question seems to deal with the right of
surrender as if it were a limitation of a liability incurred by a parent
or owner, which would naturally and in the first instance be unlimited.
But if that is what was meant, it puts the cart before the horse. The
right of surrender was not introduced as a limitation of liability, but,
in Rome and Greece alike, payment was introduced as the alternative of a
failure to surrender.

The action was not based, as it would be nowadays, on the fault of the
parent or owner. If it had been, it would always have been brought against
the person who had control of the slave or animal at the time it did the
harm complained of, and who, if any one, was to blame for not preventing
the injury. So far from this being the course, the person to be sued was
the owner at the time of suing. The action followed the guilty thing into
whosesoever hands it came. /2/ And in curious contrast with the principle
as inverted to meet still more modern views of public policy, if the
animal was of a wild nature, that is, in the very case of the most
ferocious animals, the owner ceased to be liable the moment it escaped,
because at that moment he ceased to be owner. /3/ There [10]
seems to have been no other or more extensive liability by the old law,
even where a slave was guilty with his master’s knowledge, unless perhaps
he was a mere tool in his master’s hands. /1/ Gains and Ulpian showed an
inclination to cut the noxoe deditio down to a privilege of the owner in
case of misdeeds committed without his knowledge; but Ulpian is obliged to
admit, that by the ancient law, according to Celsus, the action was noxal
where a slave was guilty even with the privity of his master. /2/

All this shows very clearly that the liability of the owner was merely a
way of getting at the slave or animal which was the immediate cause of
offence. In other words, vengeance on the immediate offender was the
object of the Greek and early Roman process, not indemnity from the master
or owner. The liability of the owner was simply a liability of the
offending thing. In the primitive customs of Greece it was enforced by a
judicial process expressly directed against the object, animate or
inanimate. The Roman Twelve Tables made the owner, instead of the thing
itself, the defendant, but did not in any way change the ground of
liability, or affect its limit. The change was simply a device to allow
the owner to protect his interest. /3/

But it may be asked how inanimate objects came to be [11] pursued in this way, if
the object of the procedure was to gratify the passion of revenge. Learned
men have been ready to find a reason in the personification of inanimate
nature common to savages and children, and there is much to confirm this
view. Without such a personification, anger towards lifeless things would
have been transitory, at most. It is noticeable that the commonest example
in the most primitive customs and laws is that of a tree which falls upon
a man, or from which he falls and is killed. We can conceive with
comparative ease how a tree might have been put on the same footing with
animals. It certainly was treated like them, and was delivered to the
relatives, or chopped to pieces for the gratification of a real or
simulated passion. /1/

In the Athenian process there is also, no doubt, to be traced a different
thought. Expiation is one of the ends most insisted on by Plato, and
appears to have been the purpose of the procedure mentioned by Aeschines.
Some passages in the Roman historians which will be mentioned again seem
to point in the same direction. /2/

Another peculiarity to be noticed is, that the liability seems to have
been regarded as attached to the body doing the damage, in an almost
physical sense. An untrained intelligence only imperfectly performs the
analysis by which jurists carry responsibility back to the beginning of a
chain of causation. The hatred for anything giving us pain, which wreaks
itself on the manifest cause, and which leads even civilized man to kick a
door when it pinches his finger, is embodied in the noxoe deditio and [12]
other kindred doctrines of early Roman law. There is a defective passage
in Gaius, which seems to say that liability may sometimes be escaped by
giving up even the dead body of the offender. /1/ So Livy relates that,
Brutulus Papins having caused a breach of truce with the Romans, the
Samnites determined to surrender him, and that, upon his avoiding disgrace
and punishment by suicide, they sent his lifeless body. It is noticeable
that the surrender seems to be regarded as the natural expiation for the
breach of treaty, /2/ and that it is equally a matter of course to send
the body when the wrong-doer has perished. /3/

The most curious examples of this sort occur in the region of what we
should now call contract. Livy again furnishes an example, if, indeed, the
last is not one. The Roman Consul Postumius concluded the disgraceful
peace of the Caudine Forks (per sponsionem, as Livy says, denying the
common story that it was per feedus), and he was sent to Rome to obtain
the sanction of the people. When there however, he proposed that the
persons who had made the [13] contract, including himself, should be given
up in satisfaction of it. For, he said, the Roman people not having
sanctioned the agreement, who is so ignorant of the jus fetialium as not
to know that they are released from obligation by surrendering us? The
formula of surrender seems to bring the case within the noxoe deditio. /1/
Cicero narrates a similar surrender of Mancinus by the pater-patratus to
the Numantines, who, however, like the Samnites in the former case,
refused to receive him. /2/

It might be asked what analogy could have been found between a breach of
contract and those wrongs which excite the desire for vengeance. But it
must be remembered that the distinction between tort and breaches of
contract, and especially between the remedies for the two, is not found
ready made. It is conceivable that a procedure adapted to redress for
violence was extended to other cases as they arose. Slaves were
surrendered for theft as well as [14] for assault; /1/ and it
is said that a debtor who did not pay his debts, or a seller who failed to
deliver an article for which he had been paid, was dealt with on the same
footing as a thief. /2/ This line of thought, together with the quasi
material conception of legal obligations as binding the offending body,
which has been noticed, would perhaps explain the well-known law of the
Twelve Tables as to insolvent debtors. According to that law, if a man was
indebted to several creditors and insolvent, after certain formalities
they might cut up his body and divide it among them. If there was a single
creditor, he might put his debtor to death or sell him as a slave. /3/

If no other right were given but to reduce a debtor to slavery, the law
might be taken to look only to compensation, and to be modelled on the
natural working of self-redress. /4/ The principle of our own law, that
taking a man’s body on execution satisfies the debt, although he is not
detained an hour, seems to be explained in that way. But the right to put
to death looks like vengeance, and the division of the body shows that the
debt was conceived very literally to inhere in or bind the body with a
vinculum juris.

Whatever may be the true explanation of surrender in connection with
contracts, for the present purpose we need not go further than the common
case of noxoe deditio for wrongs. Neither is the seeming adhesion of
liability to the very body which did the harm of the first importance. [15] The
Roman law dealt mainly with living creatures,—with animals and
slaves. If a man was run over, it did not surrender the wagon which
crushed him, but the ox which drew the wagon. /1/ At this stage the notion
is easy to understand. The desire for vengeance may be felt as strongly
against a slave as against a freeman, and it is not without example
nowadays that a like passion should be felt against an animal. The
surrender of the slave or beast empowered the injured party to do his will
upon them. Payment by the owner was merely a privilege in case he wanted
to buy the vengeance off.

It will readily be imagined that such a system as has been described could
not last when civilization had advanced to any considerable height. What
had been the privilege of buying off vengeance by agreement, of paying the
damage instead of surrendering the body of the offender, no doubt became a
general custom. The Aquilian law, passed about a couple of centuries later
than the date of the Twelve Tables, enlarged the sphere of compensation
for bodily injuries. Interpretation enlarged the Aquilian law. Masters
became personally liable for certain wrongs committed by their slaves with
their knowledge, where previously they were only bound to surrender the
slave. /2/ If a pack-mule threw off his burden upon a passer-by because he
had been improperly overloaded, or a dog which might have been restrained
escaped from his master and bit any one, the old noxal action, as it was
called, gave way to an action under the new law to enforce a general
personal liability. /3/ Still later, ship-owners and innkeepers were made
liable [16]
as if they were wrong-doers for wrongs committed by those in their employ
on board ship or in the tavern, although of course committed without their
knowledge. The true reason for this exceptional responsibility was the
exceptional confidence which was necessarily reposed in carriers and
innkeepers. /1/ But some of the jurists, who regarded the surrender of
children and slaves as a privilege intended to limit liability, explained
this new liability on the ground that the innkeeper or ship-owner was to a
certain degree guilty of negligence in having employed the services of bad
men? This was the first instance of a master being made unconditionally
liable for the wrongs of his servant. The reason given for it was of
general application, and the principle expanded to the scope of the
reason.

The law as to ship-owners and innkeepers introduced another and more
startling innovation. It made them responsible when those whom they
employed were free, as well as when they were slaves. /3/ For the first
time one man was made answerable for the wrongs of another who was also
answerable himself, and who had a standing before the law. This was a
great change from the bare permission to ransom one’s slave as a
privilege. But here we have the history of the whole modern doctrine of
master and servant, and principal and agent. All servants are now as free
and as liable to a suit as their masters. Yet the principle introduced on
special grounds in a special case, when servants were slaves, is now the
general law of this country and England, and under it men daily have to
pay large sums for other people’s acts, in which they had no part and [17] for
which they are in no sense to blame. And to this day the reason offered by
the Roman jurists for an exceptional rule is made to justify this
universal and unlimited responsibility. /1/

So much for one of the parents of our common law. Now let us turn for a
moment to the Teutonic side. The Salic Law embodies usages which in all
probability are of too early a date to have been influenced either by Rome
or the Old Testament. The thirty-sixth chapter of the ancient text
provides that, if a man is killed by a domestic animal, the owner of the
animal shall pay half the composition (which he would have had to pay to
buy off the blood feud had he killed the man himself), and for the other
half give up the beast to the complainant. /2/ So, by chapter thirty-five,
if a slave killed a freeman, he was to be surrendered for one half of the
composition to the relatives of the slain man, and the master was to pay
the other half. But according to the gloss, if the slave or his master had
been maltreated by the slain man or his relatives, the master had only to
surrender the slave. /3/ It is interesting to notice that those Northern
sources which Wilda takes to represent a more primitive stage of German
law confine liability for animals to surrender alone. /4/ There is also a
trace of the master’s having been able to free himself in some cases, at a
later date, by showing that the slave was no longer in [18] his
possession. /1/ There are later provisions making a master liable for the
wrongs committed by his slave by his command. /2/ In the laws adapted by
the Thuringians from the earlier sources, it is provided in terms that the
master is to pay for all damage done by his slaves. /4/

In short, so far as I am able to trace the order of development in the
customs of the German tribes, it seems to have been entirely similar to
that which we have already followed in the growth of Roman law. The
earlier liability for slaves and animals was mainly confined to surrender;
the later became personal, as at Rome.

The reader may begin to ask for the proof that all this has any bearing on
our law of today. So far as concerns the influence of the Roman law upon
our own, especially the Roman law of master and servant, the evidence of
it is to be found in every book which has been written for the last five
hundred years. It has been stated already that we still repeat the
reasoning of the Roman lawyers, empty as it is, to the present day. It
will be seen directly whether the German folk-laws can also be followed
into England.

In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) [19] it
is said, “If any one’s slave slay a freeman, whoever it be, let the owner
pay with a hundred shillings, give up the slayer,” &c. /1/ There are
several other similar provisions. In the nearly contemporaneous laws of
Ine, the surrender and payment are simple alternatives. “If a Wessex slave
slay an Englishman, then shall he who owns him deliver him up to the lord
and the kindred, or give sixty shillings for his life.” /2/ Alfred’s laws
(A.D. 871-901) have a like provision as to cattle. “If a neat wound a man,
let the neat be delivered up or compounded for.” /3/ And Alfred, although
two hundred years later than the first English lawgivers who have been
quoted, seems to have gone back to more primitive notions than we find
before his time. For the same principle is extended to the case of a tree
by which a man is killed. “If, at their common work, one man slay another
unwilfully, let the tree be given to the kindred, and let them have it off
the land within thirty nights. Or let him take possession of it who owns
the wood.” /4/

It is not inapposite to compare what Mr. Tylor has mentioned concerning
the rude Kukis of Southern Asia. “If a tiger killed a Kuki, his family
were in disgrace till they had retaliated by killing and eating this
tiger, or another; but further, if a man was killed by a fall from a tree,
his relatives would take their revenge by cutting the tree down, and
scattering it in chips.” /5/

To return to the English, the later laws, from about a hundred years after
Alfred down to the collection known as the laws of Henry I, compiled long
after the Conquest, [20] increase the lord’s liability for his
household, and make him surety for his men’s good conduct. If they incur a
fine to the king and run away, the lord has to pay it unless he can clear
himself of complicity. But I cannot say that I find until a later period
the unlimited liability of master for servant which was worked out on the
Continent, both by the German tribes and at Rome. Whether the principle
when established was an indigenous growth, or whether the last step was
taken under the influence of the Roman law, of which Bracton made great
use, I cannot say. It is enough that the soil was ready for it, and that
it took root at an early day. /1/ This is all that need be said here with
regard to the liability of a master for the misdeeds of his servants.

It is next to be shown what became of the principle as applied to animals.
Nowadays a man is bound at his peril to keep his cattle from trespassing,
and he is liable for damage done by his dog or by any fierce animal, if he
has notice of a tendency in the brute to do the harm complained of. The
question is whether any connection can be established between these very
sensible and intelligible rules of modern law and the surrender directed
by King Alfred.

Let us turn to one of the old books of the Scotch law, where the old
principle still appears in full force and is stated with its reasons as
then understood, /2/

“Gif ane wylde or head-strang horse, carries ane man [21] against his will over
an craig, or heuch, or to the water, and the man happin to drowne, the
horse sall perteine to the king as escheit.

“Bot it is otherwise of ane tame and dantoned horse; gif any man fulishlie
rides, and be sharp spurres compelles his horse to take the water, and the
man drownes, the horse sould not be escheit, for that comes be the mans
fault or trespasse, and not of the horse, and the man has receaved his
punishment, in sa farre as he is perished and dead; and the horse quha did
na fault, sould not be escheit.

“The like reason is of all other beastes, quhilk slayes anie man, [it is
added in a later work, “of the quhilk slaughter they haue gilt,”] for all
these beasts sould be escheit.” /1/

“The Forme and Maner of Baron Courts” continues as follows:—

“It is to witt, that this question is asked in the law, Gif ane lord hes
ane milne, and any man fall in the damne, and be borne down with the water
quhill he comes to the quheill, and there be slaine to death with the
quheill; quhither aught the milne to be eseheir or not? The law sayes
thereto nay, and be this reason, For it is ane dead thing, and ane dead
thing may do na fellony, nor be made escheit throw their gilt. Swa the
milne in this case is not culpable, and in the law it is lawfull to the
lord of the land to haue ane mylne on his awin water quhere best likes
him.” /2/

The reader will see in this passage, as has been remarked already of the
Roman law, that a distinction is taken between things which are capable of
guilt and those which [22] are not,—between living and dead
things; but he will also see that no difficulty was felt in treating
animals as guilty.

Take next an early passage of the English law, a report of what was laid
down by one of the English judges. In 1333 it was stated for law, that,
“if my dog kills your sheep, and I, freshly after the fact, tender you the
dog, you are without recovery against me.” /1/ More than three centuries
later, in 1676, it was said by Twisden, J. that, “if one hath kept a tame
fox, which gets loose and grows wild, he that hath kept him before shall
not answer for the damage the fox doth after he hath lost him, and he hath
resumed his wild nature.” /2/ It is at least doubtful whether that
sentence ever would have been written but for the lingering influence of
the notion that the ground of the owner’s liability was his ownership of
the offending: thing and his failure to surrender it. When the fox
escaped, by another principle of law the ownership was at an end. In fact,
that very consideration was seriously pressed in England as late as 1846,
with regard to a monkey which escaped and bit the plaintiff, /3/ So it
seems to be a reasonable conjecture, that it was this way of thinking
which led Lord Holt, near the beginning of the last century, to intimate
that one ground on which a man is bound at his peril to restrain cattle
from trespassing is that he has valuable property in such animals, whereas
he has not dogs, for which his responsibility is less. /4/ To this day, in
fact, cautious judges state the law as to cattle to be, that, “if I am the
owner of an animal in which by law the [23] right of property can
exist, I am bound to take care that it does not stray into the land of my
neighbor.” /1/

I do not mean that our modern law on this subject is only a survival, and
that the only change from primitive notions was to substitute the owner
for the offending animal. For although it is probable that the early law
was one of the causes which led to the modern doctrine, there has been too
much good sense in every stage of our law to adopt any such sweeping
consequences as would follow from the wholesale transfer of liability
supposed. An owner is not bound at his peril to keep his cattle from
harming his neighbor’s person. /2/ And in some of the earliest instances
of personal liability, even for trespass on a neighbor’s land, the ground
seems to have been the owner’s negligence. /3/

It is the nature of those animals which the common law recognizes as the
subject of ownership to stray, and when straying to do damage by trampling
down and eating crops. At the same time it is usual and easy to restrain
them. On the other hand, a dog, which is not the subject of property, does
no harm by simply crossing the land of others than its owner. Hence to
this extent the new law might have followed the old. The right of property
in the [24]
offending animal, which was the ancient ground of responsibility, might
have been adopted safely enough as the test of a liability based on the
fault of the owner. But the responsibility for damage of a kind not to be
expected from such animals is determined on grounds of policy
comparatively little disturbed by tradition. The development of personal
liability for fierce wild animals at Rome has been explained. Our law
seems to have followed the Roman.

We will now follow the history of that branch of the primitive notion
which was least likely to survive,—the liability of inanimate
things.

It will be remembered that King Alfred ordained the surrender of a tree,
but that the later Scotch law refused it because a dead thing could not
have guilt. It will be remembered, also, that the animals which the Scotch
law forfeited were escheat to the king. The same thing has remained true
in England until well into this century, with regard even to inanimate
objects. As long ago as Bracton, /1/ in case a man was slain, the coroner
was to value the object causing the death, and that was to be forfeited sa
deodand “pro rege.” It was to be given to God, that is to say to the
Church, for the king, to be expended for the good of his soul. A man’s
death had ceased to be the private affair of his friends as in the time of
the barbarian folk-laws. The king, who furnished the court, now sued for
the penalty. He supplanted the family in the claim on the guilty thing,
and the Church supplanted him.

In Edward the First’s time some of the cases remind of the barbarian laws
at their rudest stage. If a man fell from a tree, the tree was deodand.
/2/ If he drowned in a [25] well, the well was to be filled up. /1/ It
did not matter that the forfeited instrument belonged to an innocent
person. “Where a man killeth another with the sword of John at Stile, the
sword shall be forfeit as deodand, and yet no default is in the owner.”
/2/ That is from a book written in the reign of Henry VIII., about 1530.
And it has been repeated from Queen Elizabeth’s time /3/ to within one
hundred years, /4/ that if my horse strikes a man, and afterwards I sell
my horse, and after that the man dies, the horse shall be forfeited. Hence
it is, that, in all indictments for homicide, until very lately it has
been necessary to state the instrument causing the death and its value, as
that the stroke was given by a certain penknife, value sixpence, so as to
secure the forfeiture. It is said that a steam-engine has been forfeited
in this way.

I now come to what I regard as the most remarkable transformation of this
principle, and one which is a most important factor in our law as it is
today. I must for the moment leave the common law and take up the
doctrines of the Admiralty. In the early books which have just been
referred to, and long afterwards, the fact of motion is adverted to as of
much importance. A maxim of Henry Spigurnel, a judge in the time of Edward
I., is reported, that “where a man is killed by a cart, or by the fall of
a house, or in other like manner, and the thing in motion is the cause of
the death, it shall be deodand.” /5/ So it was [26] said in the next reign
that “oinne illud quod mover cum eo quod occidit homines deodandum domino
Regi erit, vel feodo clerici.” /1/ The reader sees how motion gives life
to the object forfeited.

The most striking example of this sort is a ship. And accordingly the old
books say that, if a man falls from a ship and is drowned, the motion of
the ship must be taken to cause the death, and the ship is forfeited,—provided,
however, that this happens in fresh water. /2/ For if the death took place
on the high seas, that was outside the ordinary jurisdiction. This proviso
has been supposed to mean that ships at sea were not forfeited; /3/ but
there is a long series of petitions to the king in Parliament that such
forfeitures may be done away with, which tell a different story. /4/ The
truth seems to be that the forfeiture took place, but in a different
court. A manuscript of the reign of Henry VI., only recently printed,
discloses the fact that, if a man was killed or drowned at sea by the
motion of the ship, the vessel was forfeited to the admiral upon a
proceeding in the admiral’s court, and subject to release by favor of the
admiral or the king. /5/

A ship is the most living of inanimate things. Servants sometimes say
“she” of a clock, but every one gives a gender to vessels. And we need not
be surprised, therefore, to find a mode of dealing which has shown such
extraordinary vitality in the criminal law applied with even more striking
thoroughness in the Admiralty. It is only by supposing [27] the
ship to have been treated as if endowed with personality, that the
arbitrary seeming peculiarities of the maritime law can be made
intelligible, and on that supposition they at once become consistent and
logical.

By way of seeing what those peculiarities are, take first a case of
collision at sea. A collision takes place between two vessels, the
Ticonderoga and the Melampus, through the fault of the Ticonderoga alone.
That ship is under a lease at the time, the lessee has his own master in
charge, and the owner of the vessel has no manner of control over it. The
owner, therefore, is not to blame, and he cannot even be charged on the
ground that the damage was done by his servants. He is free from personal
liability on elementary principles. Yet it is perfectly settled that there
is a lien on his vessel for the amount of the damage done, /1/ and this
means that that vessel may be arrested and sold to pay the loss in any
admiralty court whose process will reach her. If a livery-stable keeper
lets a horse and wagon to a customer, who runs a man down by careless
driving, no one would think of claiming a right to seize the horse and
wagon. It would be seen that the only property which could be sold to pay
for a wrong was the property of the wrong-doer.

But, again, suppose that the vessel, instead of being under lease, is in
charge of a pilot whose employment is made compulsory by the laws of the
port which she is just entering. The Supreme Court of the United States
holds the ship liable in this instance also. /2/ The English courts would
probably have decided otherwise, and the matter is settled in England by
legislation. But there the court of appeal, the Privy Council, has been
largely composed of common-law [28]lawyers, and it has shown a marked tendency to
assimilate common-law doctrine. At common law one who could not impose a
personal liability on the owner could not bind a particular chattel to
answer for a wrong of which it had been the instrument. But our Supreme
Court has long recognized that a person may bind a ship, when he could not
bind the owners personally, because he was not the agent.

It may be admitted that, if this doctrine were not supported by an
appearance of good sense, it would not have survived. The ship is the only
security available in dealing with foreigners, and rather than send one’s
own citizens to search for a remedy abroad in strange courts, it is easy
to seize the vessel and satisfy the claim at home, leaving the foreign
owners to get their indemnity as they may be able. I dare say some such
thought has helped to keep the practice alive, but I believe the true
historic foundation is elsewhere. The ship no doubt, like a sword would
have been forfeited for causing death, in whosesoever hands it might have
been. So, if the master and mariners of a ship, furnished with letters of
reprisal, committed piracy against a friend of the king, the owner lost
his ship by the admiralty law, although the crime was committed without
his knowledge or assent. /2/ It seems most likely that the principle by
which the ship was forfeited to the king for causing death, or for piracy,
was the same as that by which it was bound to private sufferers for other
damage, in whose hands soever it might have been when it did the harm.

If we should say to an uneducated man today, “She did it and she ought to
pay for it,” it may be doubted [29] whether he would see the fallacy, or be ready
to explain that the ship was only property, and that to say, “The ship has
to pay for it,” /1/ was simply a dramatic way of saying that somebody’s
property was to be sold, and the proceeds applied to pay for a wrong
committed by somebody else.

It would seem that a similar form of words has been enough to satisfy the
minds of great lawyers. The following is a passage from a judgment by
Chief Justice Marshall, which is quoted with approval by Judge Story in
giving the opinion of the Supreme Court of the United States: “This is not
a proceeding against the owner; it is a proceeding against the vessel for
an offence committed by the vessel; which is not the less an offence, and
does not the less subject her to forfeiture, because it was committed
without the authority and against the will of the owner. It is true that
inanimate matter can commit no offence. But this body is animated and put
in action by the crew, who are guided by the master. The vessel acts and
speaks by the master. She reports herself by the master. It is, therefore,
not unreasonable that the vessel should be affected by this report.” And
again Judge Story quotes from another case: “The thing is here primarily
considered as the offender, or rather the offence is primarily attached to
the thing.” /2/

In other words, those great judges, although of course aware that a ship
is no more alive than a mill-wheel, thought that not only the law did in
fact deal with it as if it were alive, but that it was reasonable that the
law should do so. The reader will observe that they do not say simply that
it is reasonable on grounds of policy to [30] sacrifice justice to
the owner to security for somebody else but that it is reasonable to deal
with the vessel as an offending thing. Whatever the hidden ground of
policy may be, their thought still clothes itself in personifying
language.

Let us now go on to follow the peculiarities of the maritime law in other
directions. For the cases which have been stated are only parts of a
larger whole.

By the maritime law of the Middle Ages the ship was not only the source,
but the limit, of liability. The rule already prevailed, which has been
borrowed and adopted by the English statutes and by our own act of
Congress of 1851, according to which the owner is discharged from
responsibility for wrongful acts of a master appointed by himself upon
surrendering his interest in the vessel and the freight which she had
earned. By the doctrines of agency he would be personally liable for the
whole damage. If the origin of the system of limited liability which is
believed to be so essential to modern commerce is to be attributed to
those considerations of public policy on which it would now be sustained,
that system has nothing to do with the law of collision. But if the limit
of liability here stands on the same ground as the noxoe deditio, confirms
the explanation already given of the liability of the ship for wrongs done
by it while out of the owner’s hands, and conversely existence of that
liability confirms the argument here.

Let us now take another rule, for which, as usual, there is a plausible
explanation of policy. Freight, it is said, the mother of wages; for, we
are told, “if the ship perished, [31] if the mariners were to
have their wages in such cases, they would not use their endeavors, nor
hazard their lives, for the safety of the ship.” /1/ The best commentary
on this reasoning is, that the law has recently been changed by statute.
But even by the old law there was an exception inconsistent with the
supposed reason. In case of shipwreck, which was the usual case of a
failure to earn freight, so long as any portion of the ship was saved, the
lien of the mariners remained. I suppose it would have been said, because
it was sound policy to encourage them to save all they could. If we
consider that the sailors were regarded as employed by the ship, we shall
understand very readily both the rule and the exception. “The ship is the
debtor,” as was said in arguing a case decided in the time of William III.
/2/ If the debtor perished, there was an end of the matter. If a part came
ashore, that might be proceeded against.

Even the rule in its modern form, that freight is the mother of wages, is
shown by the explanation commonly given to have reference to the question
whether the ship is lost or arrive safe. In the most ancient source of the
maritime law now extant, which has anything about the matter, so far as I
have been able to discover, the statement is that the mariners will lose
their wages when the ship is lost. /3/ In like manner, in what is said by
its English [32] editor, Sir Travers Twiss, to be the oldest
part of the Consulate of the Sea, /1/ we read that “whoever the freighter
may be who runs away or dies, the ship is bound to pay: the mariners.” /2/
I think we may assume that the vessel was bound by the contract with the
sailors, much in the same way as it was by the wrongs for which it was
answerable, just as the debtor’s body was answerable for his debts, as
well as for his crimes, under the ancient law of Rome.

The same thing is true of other maritime dealings with the vessel, whether
by way of contract or otherwise. If salvage service is rendered to a
vessel, the admiralty court will hold the vessel, although it has been
doubted whether an action of contract would lie, if the owners were sued
at law. So the ship is bound by the master’s contract to carry cargo, just
as in case of collision, although she was under lease at the time. In such
cases, also, according to our Supreme Court, the master may bind the
vessel when he cannot bind the general owners. /4/ “By custom the ship is
bound to the merchandise, and the merchandise to the ship.” /5/ “By the
maritime law every contract of the master implies an hypothecation.” /6/
It might be urged, no doubt, with force, that, so far as the usual
maritime contracts are concerned, the dealing must be on the security of
the ship or merchandise in many cases, and therefore [33] that it is policy to
give this security in all cases; that the risk to which it subjects
ship-owners is calculable, and that they must take it into account when
they let their vessels. Again, in many cases, when a party asserts a
maritime lien by way of contract, he has improved the condition of the
thing upon which the lien is claimed, and this has been recognized as a
ground for such a lien in some systems. But this is not true universally,
nor in the most important cases. It must be left to the reader to decide
whether ground has not been shown for believing that the same metaphysical
confusion which naturally arose as to the ship’s wrongful acts, affected
the way of thinking as to her contracts. The whole manner of dealing with
vessels obviously took the form which prevailed in the eases first
mentioned. Pardessus, a high authority, says that the lien for freight
prevails even against the owner of stolen goods, “as the master deals less
with the person than the thing.” /2/ So it was said in the argument of a
famous English case, that “the ship is instead of the owner, and therefore
is answerable.” /3/ In many cases of contract, as well as tort, the vessel
was not only the security for the debt, but the limit of the owner’s
liability.

The principles of the admiralty are embodied in its form of procedure. A
suit may be brought there against a vessel by name, any person interested
in it being at liberty to come in and defend, but the suit, if successful,
ending in a sale of the vessel and a payment of the plaintiff’s claim out
of the proceeds. As long ago as the time of James I. it was said that “the
libel ought to be only [34] against the ship and goods, and not against
the party.” /1/ And authority for the statement was cited from the reign
of Henry VI., the same reign when, as we have seen, the Admiral claimed a
forfeiture of ships for causing death. I am bound to say, however, that I
cannot find such an authority of that date.

We have now followed the development of the chief forms of liability in
modern law for anything other than the immediate and manifest consequences
of a man’s own acts. We have seen the parallel course of events in the two
parents,—the Roman law and the German customs, and in the offspring
of those two on English soil with regard to servants, animals, and
inanimate things. We have seen a single germ multiplying and branching
into products as different from each other as the flower from the root. It
hardly remains to ask what that germ was. We have seen that it was the
desire of retaliation against the offending thing itself. Undoubtedly, it
might be argued that many of the rules stated were derived from a seizure
of the offending thing as security for reparation, at first, perhaps,
outside the law. That explanation, as well as the one offered here; would
show that modern views of responsibility had not yet been attained, as the
owner of the thing might very well not have been the person in fault. But
such has not been the view of those most competent to judge. A
consideration of the earliest instances will show, as might have been
expected, that vengeance, not compensation, and vengeance on the offending
thing, was the original object. The ox in Exodus was to be stoned. The axe
in the Athenian law was to be banished. The tree, in Mr. Tylor’s instance,
was to be chopped to pieces. The [35] slave under all the
systems was to be surrendered to the relatives of the slain man, that they
might do with him what they liked. /1/ The deodand was an accursed thing.
The original limitation of liability to surrender, when the owner was
before the court, could not be accounted for if it was his liability, and
not that of his property, which was in question. Even where, as in some of
the cases, expiation seems to be intended rather than vengeance, the
object is equally remote from an extrajudicial distress.

The foregoing history, apart from the purposes for which it has been
given, well illustrates the paradox of form and substance in the
development of law. In form its growth is logical. The official theory is
that each new decision follows syllogistically from existing precedents.
But just as the clavicle in the cat only tells of the existence of some
earlier creature to which a collar-bone was useful, precedents survive in
the law long after the use they once served is at an end and the reason
for them has been forgotten. The result of following them must often be
failure and confusion from the merely logical point of view.

On the other hand, in substance the growth of the law is legislative. And
this in a deeper sense than that what the courts declare to have always
been the law is in fact new. It is legislative in its grounds. The very
considerations which judges most rarely mention, and always with an
apology, are the secret root from which the law draws all the juices of
life. I mean, of course, considerations of what is expedient for the
community concerned. Every important principle which is developed by
litigation is in fact and at bottom the result of more or less definitely
understood views of public policy; most generally, to be sure, [36]
under our practice and traditions, the unconscious result of instinctive
preferences and inarticulate convictions, but none the less traceable to
views of public policy in the last analysis. And as the law is
administered by able and experienced men, who know too much to sacrifice
good sense to a syllogism, it will be found that, when ancient rules
maintain themselves in the way that has been and will be shown in this
book, new reasons more fitted to the time have been found for them, and
that they gradually receive a new content, and at last a new form, from
the grounds to which they have been transplanted.

But hitherto this process has been largely unconscious. It is important,
on that account, to bring to mind what the actual course of events has
been. If it were only to insist on a more conscious recognition of the
legislative function of the courts, as just explained, it would be useful,
as we shall see more clearly further on. /1/

What has been said will explain the failure of all theories which consider
the law only from its formal side; whether they attempt to deduce the
corpus from a priori postulates, or fall into the humbler error of
supposing the science of the law to reside in the elegantia juris, or
logical cohesion of part with part. The truth is, that the law always
approaching, and never reaching, consistency. It is forever adopting new
principles from life at one end, and it always retains old ones from
history at the other, which have not yet been absorbed or sloughed off. It
will become entirely consistent only when it ceases to grow.

The study upon which we have been engaged is necessary both for the
knowledge and for the revision of the law. [37] However much we may codify
the law into a series of seemingly self-sufficient propositions, those
propositions will be but a phase in a continuous growth. To understand
their scope fully, to know how they will be dealt with by judges trained
in the past which the law embodies, we must ourselves know something of
that past. The history of what the law has been is necessary to the
knowledge of what the law is.

Again, the process which I have described has involved the attempt to
follow precedents, as well as to give a good reason for them. When we find
that in large and important branches of the law the various grounds of
policy on which the various rules have been justified are later inventions
to account for what are in fact survivals from more primitive times, we
have a right to reconsider the popular reasons, and, taking a broader view
of the field, to decide anew whether those reasons are satisfactory. They
may be, notwithstanding the manner of their appearance. If truth were not
often suggested by error, if old implements could not be adjusted to new
uses, human progress would be slow. But scrutiny and revision are
justified.

But none of the foregoing considerations, nor the purpose of showing the
materials for anthropology contained in the history of the law, are the
immediate object here. My aim and purpose have been to show that the
various forms of liability known to modern law spring from the common
ground of revenge. In the sphere of contract the fact will hardly be
material outside the cases which have been stated in this Lecture. But in
the criminal law and the law of torts it is of the first importance. It
shows that they have started from a moral basis, from the thought that
some one was to blame.

[38] It remains to be proved that, while the terminology of morals is
still retained, and while the law does still and always, in a certain
sense, measure legal liability by moral standards, it nevertheless, by the
very necessity of its nature, is continually transmuting those moral
standards into external or objective ones, from which the actual guilt of
the party concerned is wholly eliminated.

[39]

LECTURE II. — THE CRIMINAL LAW.

In the beginning of the first Lecture it was shown that the appeals of the
early law were directed only to intentional wrongs. The appeal was a far
older form of procedure than the indictment, and may be said to have had a
criminal as well as a civil aspect. It had the double object of satisfying
the private party for his loss, and the king for the breach of his peace.
On its civil side it was rooted in vengeance. It was a proceeding to
recover those compositions, at first optional, afterwards compulsory, by
which a wrong-doer bought the spear from his side. Whether, so far as
concerned the king, it had the same object of vengeance, or was more
particularly directed to revenue, does not matter, since the claim of the
king did not enlarge the scope of the action.

It would seem to be a fair inference that indictable offences were
originally limited in the same way as those which gave rise to an appeal.
For whether the indictment arose by a splitting up of the appeal, or in
some other way, the two were closely connected.

An acquittal of the appellee on the merits was a bar to an indictment;
and, on the other hand, when an appeal was fairly started, although the
appellor might fail to prosecute, or might be defeated by plea, the cause
might still be proceeded with on behalf of the king. /1/

[40]
The presentment, which is the other parent of our criminal procedure, had
an origin distinct from the appeal. If, as has been thought, it was merely
the successor of fresh suit and lynch law, /1/ this also is the child of
vengeance, even more clearly than the other.

The desire for vengeance imports an opinion that its object is actually
and personally to blame. It takes an internal standard, not an objective
or external one, and condemns its victim by that. The question is whether
such a standard is still accepted either in this primitive form, or in
some more refined development, as is commonly supposed, and as seems not
impossible, considering the relative slowness with which the criminal law
has improved.

It certainly may be argued, with some force, that it has never ceased to
be one object of punishment to satisfy the desire for vengeance. The
argument will be made plain by considering those instances in which, for
one reason or another, compensation for a wrong is out of the question.

Thus an act may be of such a kind as to make indemnity impossible by
putting an end to the principal sufferer, as in the case of murder or
manslaughter.

Again, these and other crimes, like forgery, although directed against an
individual, tend to make others feel unsafe, and this general insecurity
does not admit of being paid for.

Again, there are cases where there are no means of enforcing indemnity. In
Macaulay’s draft of the Indian Penal Code, breaches of contract for the
carriage of passengers, were made criminal. The palanquin-bearers of India
were too poor to pay damages, and yet had to be [41] trusted to carry
unprotected women and children through wild and desolate tracts, where
their desertion would have placed those under their charge in great
danger.

In all these cases punishment remains as an alternative. A pain can be
inflicted upon the wrong-doer, of a sort which does not restore the
injured party to his former situation, or to another equally good, but
which is inflicted for the very purpose of causing pain. And so far as
this punishment takes the place of compensation, whether on account of the
death of the person to whom the wrong was done, the indefinite number of
persons affected, the impossibility of estimating the worth of the
suffering in money, or the poverty of the criminal, it may be said that
one of its objects is to gratify the desire for vengeance. The prisoner
pays with his body.

The statement may be made stronger still, and it may be said, not only
that the law does, but that it ought to, make the gratification of revenge
an object. This is the opinion, at any rate, of two authorities so great,
and so opposed in other views, as Bishop Butler and Jeremy Bentham. /1/
Sir James Stephen says, “The criminal law stands to the passion of revenge
in much the same relation as marriage to the sexual appetite.” /2/

The first requirement of a sound body of law is, that it should correspond
with the actual feelings and demands of the community, whether right or
wrong. If people would gratify the passion of revenge outside of the law,
if the law did not help them, the law has no choice but to satisfy the
craving itself, and thus avoid the greater evil of private [42
retribution. At the same time, this passion is not one which we encourage,
either as private individuals or as lawmakers. Moreover, it does not cover
the whole ground. There are crimes which do not excite it, and we should
naturally expect that the most important purposes of punishment would be
coextensive with the whole field of its application. It remains to be
discovered whether such a general purpose exists, and if so what it is.
Different theories still divide opinion upon the subject.

It has been thought that the purpose of punishment is to reform the
criminal; that it is to deter the criminal and others from committing
similar crimes; and that it is retribution. Few would now maintain that
the first of these purposes was the only one. If it were, every prisoner
should be released as soon as it appears clear that he will never repeat
his offence, and if he is incurable he should not be punished at all. Of
course it would be hard to reconcile the punishment of death with this
doctrine.

The main struggle lies between the other two. On the one side is the
notion that there is a mystic bond between wrong and punishment; on the
other, that the infliction of pain is only a means to an end. Hegel, one
of the great expounders of the former view, puts it, in his quasi
mathematical form, that, wrong being the negation of right, punishment is
the negation of that negation, or retribution. Thus the punishment must be
equal, in the sense of proportionate to the crime, because its only
function is to destroy it. Others, without this logical apparatus, are
content to rely upon a felt necessity that suffering should follow
wrong-doing.

It is objected that the preventive theory is immoral, because it overlooks
the ill-desert of wrong-doing, and furnishes [43] no measure of the
amount of punishment, except the lawgiver’s subjective opinion in regard
to the sufficiency of the amount of preventive suffering. /1/ In the
language of Kant, it treats man as a thing, not as a person; as a means,
not as an end in himself. It is said to conflict with the sense of
justice, and to violate the fundamental principle of all free communities,
that the members of such communities have equal rights to life, liberty,
and personal security. /2/

In spite of all this, probably most English-speaking lawyers would accept
the preventive theory without hesitation. As to the violation of equal
rights which is charged, it may be replied that the dogma of equality
makes an equation between individuals only, not between an individual and
the community. No society has ever admitted that it could not sacrifice
individual welfare to its own existence. If conscripts are necessary for
its army, it seizes them, and marches them, with bayonets in their rear,
to death. It runs highways and railroads through old family places in
spite of the owner’s protest, paying in this instance the market value, to
be sure, because no civilized government sacrifices the citizen more than
it can help, but still sacrificing his will and his welfare to that of the
rest. /3/

If it were necessary to trench further upon the field of morals, it might
be suggested that the dogma of equality applied even to individuals only
within the limits of ordinary dealings in the common run of affairs. You
cannot argue with your neighbor, except on the admission for the [44]
moment that he is as wise as you, although you may by no means believe it.
In the same way, you cannot deal with him, where both are free to choose,
except on the footing of equal treatment, and the same rules for both. The
ever-growing value set upon peace and the social relations tends to give
the law of social being the appearance of the law of all being. But it
seems to me clear that the ultima ratio, not only regum, but of private
persons, is force, and that at the bottom of all private relations,
however tempered by sympathy and all the social feelings, is a justifiable
self-preference. If a man is on a plank in the deep sea which will only
float one, and a stranger lays hold of it, he will thrust him off if he
can. When the state finds itself in a similar position, it does the same
thing.

The considerations which answer the argument of equal rights also answer
the objections to treating man as a thing, and the like. If a man lives in
society, he is liable to find himself so treated. The degree of
civilization which a people has reached, no doubt, is marked by their
anxiety to do as they would be done by. It may be the destiny of man that
the social instincts shall grow to control his actions absolutely, even in
anti-social situations. But they have not yet done so, and as the rules of
law are or should be based upon a morality which is generally accepted, no
rule founded on a theory of absolute unselfishness can be laid down
without a breach between law and working beliefs.

If it be true, as I shall presently try to show, that the general
principles of criminal and civil liability are the same, it will follow
from that alone that theory and fact agree in frequently punishing those
who have been guilty [45] of no moral wrong, and who could not be
condemned by any standard that did not avowedly disregard the personal
peculiarities of the individuals concerned. If punishment stood on the
moral grounds which are proposed for it, the first thing to be considered
would be those limitations in the capacity for choosing rightly which
arise from abnormal instincts, want of education, lack of intelligence,
and all the other defects which are most marked in the criminal classes. I
do not say that they should not be, or at least I do not need to for my
argument. I do not say that the criminal law does more good than harm. I
only say that it is not enacted or administered on that theory.

There remains to be mentioned the affirmative argument in favor of the
theory of retribution, to the effect that the fitness of punishment
following wrong-doing is axiomatic, and is instinctively recognized by
unperverted minds. I think that it will be seen, on self-inspection, that
this feeling of fitness is absolute and unconditional only in the case of
our neighbors. It does not seem to me that any one who has satisfied
himself that an act of his was wrong, and that he will never do it again,
would feel the least need or propriety, as between himself and an earthly
punishing power alone, of his being made to suffer for what he had done,
although, when third persons were introduced, he might, as a philosopher,
admit the necessity of hurting him to frighten others. But when our
neighbors do wrong, we sometimes feel the fitness of making them smart for
it, whether they have repented or not. The feeling of fitness seems to me
to be only vengeance in disguise, and I have already admitted that
vengeance was an element, though not the chief element, of punishment.

[46] But, again, the supposed intuition of fitness does not seem to me to
be coextensive with the thing to be accounted for. The lesser punishments
are just as fit for the lesser crimes as the greater for the greater. The
demand that crime should be followed by its punishment should therefore be
equal and absolute in both. Again, a malum prohibitum is just as much a
crime as a malum in se. If there is any general ground for punishment, it
must apply to one case as much as to the other. But it will hardly be said
that, if the wrong in the case just supposed consisted of a breach of the
revenue laws, and the government had been indemnified for the loss, we
should feel any internal necessity that a man who had thoroughly repented
of his wrong should be punished for it, except on the ground that his act
was known to others. If it was known, the law would have to verify its
threats in order that others might believe and tremble. But if the fact
was a secret between the sovereign and the subject, the sovereign, if
wholly free from passion, would undoubtedly see that punishment in such a
case was wholly without justification.

On the other hand, there can be no case in which the law-maker makes
certain conduct criminal without his thereby showing a wish and purpose to
prevent that conduct. Prevention would accordingly seem to be the chief
and only universal purpose of punishment. The law threatens certain pains
if you do certain things, intending thereby to give you a new motive for
not doing them. If you persist in doing them, it has to inflict the pains
in order that its threats may continue to be believed.

If this is a true account of the law as it stands, the law does
undoubtedly treat the individual as a means to an [47] end, and uses him as a
tool to increase the general welfare at his own expense. It has been
suggested above, that this course is perfectly proper; but even if it is
wrong, our criminal law follows it, and the theory of our criminal law
must be shaped accordingly.

Further evidence that our law exceeds the limits of retribution, and
subordinates consideration of the individual to that of the public
well-being, will be found in some doctrines which cannot be satisfactorily
explained on any other ground.

The first of these is, that even the deliberate taking of life will not be
punished when it is the only way of saving one’s own. This principle is
not so clearly established as that next to be mentioned; but it has the
support of very great authority. /1/ If that is the law, it must go on one
of two grounds, either that self-preference is proper in the case
supposed, or that, even if it is improper, the law cannot prevent it by
punishment, because a threat of death at some future time can never be a
sufficiently powerful motive to make a man choose death now in order to
avoid the threat. If the former ground is adopted, it admits that a single
person may sacrifice another to himself, and a fortiori that a people may.
If the latter view is taken, by abandoning punishment when it can no
longer be expected to prevent an act, the law abandons the retributive and
adopts the preventive theory.

The next doctrine leads to still clearer conclusions. Ignorance of the law
is no excuse for breaking it. This substantive principle is sometimes put
in the form of a rule of evidence, that every one is presumed to know the
[48] law. It has accordingly been defended by Austin and others, on the
ground of difficulty of proof. If justice requires the fact to be
ascertained, the difficulty of doing so is no ground for refusing to try.
But every one must feel that ignorance of the law could never be admitted
as an excuse, even if the fact could be proved by sight and hearing in
every case. Furthermore, now that parties can testify, it may be doubted
whether a man’s knowledge of the law is any harder to investigate than
many questions which are gone into. The difficulty, such as it is, would
be met by throwing the burden of proving ignorance on the lawbreaker.

The principle cannot be explained by saying that we are not only commanded
to abstain from certain acts, but also to find out that we are commanded.
For if there were such a second command, it is very clear that the guilt
of failing to obey it would bear no proportion to that of disobeying the
principal command if known, yet the failure to know would receive the same
punishment as the failure to obey the principal law.

The true explanation of the rule is the same as that which accounts for
the law’s indifference to a man’s particular temperament, faculties, and
so forth. Public policy sacrifices the individual to the general good. It
is desirable that the burden of all should be equal, but it is still more
desirable to put an end to robbery and murder. It is no doubt true that
there are many cases in which the criminal could not have known that he
was breaking the law, but to admit the excuse at all would be to encourage
ignorance where the law-maker has determined to make men know and obey,
and justice to the individual is rightly outweighed by the larger
interests on the other side of the scales.

[49] If the foregoing arguments are sound, it is already manifest that
liability to punishment cannot be finally and absolutely determined by
considering the actual personal unworthiness of the criminal alone. That
consideration will govern only so far as the public welfare permits or
demands. And if we take into account the general result which the criminal
law is intended to bring about, we shall see that the actual state of mind
accompanying a criminal act plays a different part from what is commonly
supposed.

For the most part, the purpose of the criminal law is only to induce
external conformity to rule. All law is directed to conditions of things
manifest to the senses. And whether it brings those conditions to pass
immediately by the use of force, as when it protects a house from a mob by
soldiers, or appropriates private property to public use, or hangs a man
in pursuance of a judicial sentence, or whether it brings them about
mediately through men’s fears, its object is equally an external result.
In directing itself against robbery or murder, for instance, its purpose
is to put a stop to the actual physical taking and keeping of other men’s
goods, or the actual poisoning, shooting, stabbing, and otherwise putting
to death of other men. If those things are not done, the law forbidding
them is equally satisfied, whatever the motive.

Considering this purely external purpose of the law together with the fact
that it is ready to sacrifice the individual so far as necessary in order
to accomplish that purpose, we can see more readily than before that the
actual degree of personal guilt involved in any particular transgression
cannot be the only element, if it is an element at all, in the liability
incurred. So far from its [50] being true, as is often assumed, that the
condition of a man’s heart or conscience ought to be more considered in
determining criminal than civil liability, it might almost be said that it
is the very opposite of truth. For civil liability, in its immediate
working, is simply a redistribution of an existing loss between two
individuals; and it will be argued in the next Lecture that sound policy
lets losses lie where they fall, except where a special reason can be
shown for interference. The most frequent of such reasons is, that the
party who is charged has been to blame.

It is not intended to deny that criminal liability, as well as civil, is
founded on blameworthiness. Such a denial would shock the moral sense of
any civilized community; or, to put it another way, a law which punished
conduct which would not be blameworthy in the average member of the
community would be too severe for that community to bear. It is only
intended to point out that, when we are dealing with that part of the law
which aims more directly than any other at establishing standards of
conduct, we should expect there more than elsewhere to find that the tests
of liability are external, and independent of the degree of evil in the
particular person’s motives or intentions. The conclusion follows directly
from the nature of the standards to which conformity is required. These
are not only external, as was shown above, but they are of general
application. They do not merely require that every man should get as near
as he can to the best conduct possible for him. They require him at his
own peril to come up to a certain height. They take no account of
incapacities, unless the weakness is so marked as to fall into well-known
exceptions, such as infancy or madness. [51] They assume that every
man is as able as every other to behave as they command. If they fall on
any one class harder than on another, it is on the weakest. For it is
precisely to those who are most likely to err by temperament, ignorance,
or folly, that the threats of the law are the most dangerous.

The reconciliation of the doctrine that liability is founded on
blameworthiness with the existence of liability where the party is not to
blame, will be worked out more fully in the next Lecture. It is found in
the conception of the average man, the man of ordinary intelligence and
reasonable prudence. Liability is said to arise out of such conduct as
would be blameworthy in him. But he is an ideal being, represented by the
jury when they are appealed to, and his conduct is an external or
objective standard when applied to any given individual. That individual
may be morally without stain, because he has less than ordinary
intelligence or prudence. But he is required to have those qualities at
his peril. If he has them, he will not, as a general rule, incur liability
without blameworthiness.

The next step is to take up some crimes in detail, and to discover what
analysis will teach with regard to them.

I will begin with murder. Murder is defined by Sir James Stephen, in his
Digest of Criminal Law, /1/ as unlawful homicide with malice aforethought.
In his earlier work, /2/ he explained that malice meant wickedness, and
that the law had determined what states of mind were wicked in the
necessary degree. Without the same preliminary he continues in his Digest
as follows:—

[52] “Malice aforethought means any one or more of the following states of
mind….. “(a.) An intention to cause the death of, or grievous bodily
harm to, any person, whether such person is the person actually killed or
not; “(b.) Knowledge that the act which causes death will probably cause
the death of, or grievous bodily harm to, some person, whether such person
is the person actually killed or not, although such knowledge is
accompanied by indifference whether death or grievous bodily harm is
caused or not, or by a wish that it may not be caused; “(c.) An intent to
commit any felony whatever; “(d.) An intent to oppose by force any officer
of justice on his way to, in, or returning from the execution of the duty
of arresting, keeping in custody, or imprisoning any person whom he is
lawfully entitled to arrest, keep in custody, or imprison, or the duty of
keeping the peace or dispersing an unlawful assembly, provided that the
offender has notice that the person killed is such an officer so
employed.”

Malice, as used in common speech, includes intent, and something more.
When an act is said to be done with an intent to do harm, it is meant that
a wish for the harm is the motive of the act. Intent, however, is
perfectly consistent with the harm being regretted as such, and being
wished only as a means to something else. But when an act is said to be
done maliciously, it is meant, not only that a wish for the harmful effect
is the motive, but also that the harm is wished for its own sake, or, as
Austin would say with more accuracy, for the sake of the pleasurable
feeling which knowledge of the suffering caused by the act would excite.
Now it is apparent from Sir James [53] Stephen’s enumeration,
that of these two elements of malice the intent alone is material to
murder. It is just as much murder to shoot a sentry for the purpose of
releasing a friend, as to shoot him because you hate him. Malice, in the
definition of murder, has not the same meaning as in common speech, and,
in view of the considerations just mentioned, it has been thought to mean
criminal intention. /1/

But intent again will be found to resolve itself into two things;
foresight that certain consequences will follow from an act, and the wish
for those consequences working as a motive which induces the act. The
question then is, whether intent, in its turn, cannot be reduced to a
lower term. Sir James Stephen’s statement shows that it can be, and that
knowledge that the act will probably cause death, that is, foresight of
the consequences of the act, is enough in murder as in tort.

For instance, a newly born child is laid naked out of doors, where it must
perish as a matter of course. This is none the less murder, that the
guilty party would have been very glad to have a stranger find the child
and save it. /2/

But again, What is foresight of consequences? It is a picture of a future
state of things called up by knowledge of the present state of things, the
future being viewed as standing to the present in the relation of effect
to cause. Again, we must seek a reduction to lower terms. If the known
present state of things is such that the act done will very certainly
cause death, and the probability is a matter of common knowledge, one who
does the act, [54] knowing the present state of things, is guilty of
murder, and the law will not inquire whether he did actually foresee the
consequences or not. The test of foresight is not what this very criminal
foresaw, but what a man of reasonable prudence would have foreseen.

On the other hand, there must be actual present knowledge of the present
facts which make an act dangerous. The act is not enough by itself. An
act, it is true, imports intention in a certain sense. It is a muscular
contraction, and something more. A spasm is not an act. The contraction of
the muscles must be willed. And as an adult who is master of himself
foresees with mysterious accuracy the outward adjustment which will follow
his inward effort, that adjustment may be said to be intended. But the
intent necessarily accompanying the act ends there. Nothing would follow
from the act except for the environment. All acts, taken apart from their
surrounding circumstances, are indifferent to the law. For instance, to
crook the forefinger with a certain force is the same act whether the
trigger of a pistol is next to it or not. It is only the surrounding
circumstances of a pistol loaded and cocked, and of a human being in such
relation to it, as to be manifestly likely to be hit, that make the act a
wrong. Hence, it is no sufficient foundation for liability, on any sound
principle, that the proximate cause of loss was an act.

The reason for requiring an act is, that an act implies a choice, and that
it is felt to be impolitic and unjust to make a man answerable for harm,
unless he might have chosen otherwise. But the choice must be made with a
chance of contemplating the consequence complained of, or else it has no
bearing on responsibility for that consequence. [55] If this were not
true, a man might be held answerable for everything which would not have
happened but for his choice at some past time. For instance, for having in
a fit fallen on a man, which he would not have done had he not chosen to
come to the city where he was taken ill.

All foresight of the future, all choice with regard to any possible
consequence of action, depends on what is known at the moment of choosing.
An act cannot be wrong, even when done under circumstances in which it
will be hurtful, unless those circumstances are or ought to be known. A
fear of punishment for causing harm cannot work as a motive, unless the
possibility of harm may be foreseen. So far, then, as criminal liability
is founded upon wrong-doing in any sense, and so far as the threats and
punishments of the law are intended to deter men from bringing about
various harmful results, they must be confined to cases where
circumstances making the conduct dangerous were known.

Still, in a more limited way, the same principle applies to knowledge that
applies to foresight. It is enough that such circumstances were actually
known as would have led a man of common understanding to infer from them
the rest of the group making up the present state of things. For instance,
if a workman on a house-top at mid-day knows that the space below him is a
street in a great city, he knows facts from which a man of common
understanding would infer that there were people passing below. He is
therefore bound to draw that inference, or, in other words, is chargeable
with knowledge of that fact also, whether he draws the inference or not.
If then, he throws down a heavy beam into the street, he does an act [56]
which a person of ordinary prudence would foresee is likely to cause
death, or grievous bodily harm, and he is dealt with as if he foresaw it,
whether he does so in fact or not. If a death is caused by the act, he is
guilty of murder. /1/ But if the workman has reasonable cause to believe
that the space below is a private yard from which every one is excluded,
and which is used as a rubbish heap, his act is not blameworthy, and the
homicide is a mere misadventure.

To make an act which causes death murder, then, the actor ought, on
principle, to know, or have notice of the facts which make the act
dangerous. There are certain exceptions to this principle which will be
stated presently, but they have less application to murder than to some
smaller statutory crimes. The general rule prevails for the most part in
murder.

But furthermore, on the same principle, the danger which in fact exists
under the known circumstances ought to be of a class which a man of
reasonable prudence could foresee. Ignorance of a fact and inability to
foresee a consequence have the same effect on blameworthiness. If a
consequence cannot be foreseen, it cannot be avoided. But there is this
practical difference, that whereas, in most cases, the question of
knowledge is a question of the actual condition of the defendant’s
consciousness, the question of what he might have foreseen is determined
by the standard of the prudent man, that is, by general experience. For it
is to be remembered that the object of the law is to prevent human life
being endangered or taken; and that, although it so far considers
blameworthiness in punishing as not to hold a man responsible for
consequences which [57] no one, or only some exceptional specialist,
could have foreseen, still the reason for this limitation is simply to
make a rule which is not too hard for the average member of the community.
As the purpose is to compel men to abstain from dangerous conduct, and not
merely to restrain them from evil inclinations, the law requires them at
their peril to know the teachings of common experience, just as it
requires them to know the law. Subject to these explanations, it may be
said that the test of murder is the degree of danger to life attending the
act under the known circumstances of the case. /1/

It needs no further explanation to show that, when the particular
defendant does for any reason foresee what an ordinary man of reasonable
prudence would not have foreseen, the ground of exemption no longer
applies. A harmful act is only excused on the ground that the party
neither did foresee, nor could with proper care have foreseen harm.

It would seem, at first sight, that the above analysis ought to exhaust
the whole subject of murder. But it does not without some further
explanation. If a man forcibly resists an officer lawfully making an
arrest, and kills him, knowing him to be an officer, it may be murder,
although no act is done which, but for his official function, would be
criminal at all. So, if a man does an act with intent to commit a felony,
and thereby accidentally kills another; for instance, if he fires at
chickens, intending to steal them, and accidentally kills the owner, whom
he does not see. Such a case as this last seems hardly to be reconcilable
with the general principles which have been laid down. It has been argued
somewhat as [58] follows:—The only blameworthy act is
firing at the chickens, knowing them to belong to another. It is neither
more nor less so because an accident happens afterwards; and hitting a
man, whose presence could not have been suspected, is an accident. The
fact that the shooting is felonious does not make it any more likely to
kill people. If the object of the rule is to prevent such accidents, it
should make accidental killing with firearms murder, not accidental
killing in the effort to steal; while, if its object is to prevent
stealing, it would do better to hang one thief in every thousand by lot.

Still, the law is intelligible as it stands. The general test of murder is
the degree of danger attending the acts under the known state of facts. If
certain acts are regarded as peculiarly dangerous under certain
circumstances, a legislator may make them punishable if done under these
circumstances, although the danger was not generally known. The law often
takes this step, although it does not nowadays often inflict death in such
cases. It sometimes goes even further, and requires a man to find out
present facts, as well as to foresee future harm, at his peril, although
they are not such as would necessarily be inferred from the facts known.

Thus it is a statutory offence in England to abduct a girl under sixteen
from the possession of the person having lawful charge of her. If a man
does acts which induce a girl under sixteen to leave her parents, he is
not chargeable, if he had no reason to know that she was under the lawful
charge of her parents, /1/ and it may be presumed that he would not be, if
he had reasonable cause to believe that she was a boy. But if he knowingly
abducts a girl from [59] her parents, he must find out her age at his
peril. It is no defence that he had every reason to think her over
sixteen. /1/ So, under a prohibitory liquor law, it has been held that, if
a man sells “Plantation Bitters,” it is no defence that he does not know
them to be intoxicating. /2/ And there are other examples of the same
kind.

Now, if experience shows, or is deemed by the law-maker to show, that
somehow or other deaths which the evidence makes accidental happen
disproportionately often in connection with other felonies, or with
resistance to officers, or if on any other ground of policy it is deemed
desirable to make special efforts for the prevention of such deaths, the
lawmaker may consistently treat acts which, under the known circumstances,
are felonious, or constitute resistance to officers, as having a
sufficiently dangerous tendency to be put under a special ban. The law
may, therefore, throw on the actor the peril, not only of the consequences
foreseen by him, but also of consequences which, although not predicted by
common experience, the legislator apprehends. I do not, however, mean to
argue that the rules under discussion arose on the above reasoning, any
more than that they are right, or would be generally applied in this
country.

Returning to the main line of thought it will be instructive to consider
the relation of manslaughter to murder. One great difference between the
two will be found to lie in the degree of danger attaching to the act in
the given state of facts. If a man strikes another with a small stick
which is not likely to kill, and which he has no reason to suppose will do
more than slight bodily harm, but which [60] does kill the other, he
commits manslaughter, not murder. /1/ But if the blow is struck as hard as
possible with an iron bar an inch thick, it is murder. /2/ So if, at the
time of striking with a switch, the party knows an additional fact, by
reason of which he foresees that death will be the consequence of a slight
blow, as, for instance, that the other has heart disease, the offence is
equally murder. /3/ To explode a barrel of gunpowder in a crowded street,
and kill people, is murder, although the actor hopes that no such harm
will be done. /4/ But to kill a man by careless riding in the same street
would commonly be manslaughter. /5/ Perhaps, however, a case could be put
where the riding was so manifestly dangerous that it would be murder.

To recur to an example which has been used already for another purpose:
“When a workman flings down a stone or piece of timber into the street,
and kills a man; this may be either misadventure, manslaughter, or murder,
according to the circumstances under which the original act was done: if
it were in a country village, where few passengers are, and he calls out
to all people to have a care, it is misadventure only; but if it were in
London, or other populous town, where people are continually passing, it
is manslaughter, though he gives loud warning; and murder, if he knows of
their passing, and gives no warning at all.” /6/

The law of manslaughter contains another doctrine [61] which should be
referred to in order to complete the understanding of the general
principles of the criminal law. This doctrine is, that provocation may
reduce an offence which would otherwise have been murder to manslaughter.
According to current morality, a man is not so much to blame for an act
done under the disturbance of great excitement, caused by a wrong done to
himself, as when he is calm. The law is made to govern men through their
motives, and it must, therefore, take their mental constitution into
account.

It might be urged, on the other side, that, if the object of punishment is
prevention, the heaviest punishment should be threatened where the
strongest motive is needed to restrain; and primitive legislation seems
sometimes to have gone on that principle. But if any threat will restrain
a man in a passion, a threat of less than death will be sufficient, and
therefore the extreme penalty has been thought excessive.

At the same time the objective nature of legal standards is shown even
here. The mitigation does not come from the fact that the defendant was
beside himself with rage. It is not enough that he had grounds which would
have had the same effect on every man of his standing and education. The
most insulting words are not provocation, although to this day, and still
more when the law was established, many people would rather die than
suffer them without action. There must be provocation sufficient to
justify the passion, and the law decides on general considerations what
provocations are sufficient.

It is said that even what the law admits to be “provocation does not
extenuate the guilt of homicide, unless the person provoked is at the time
when he does the deed [62] deprived of the power of self-control by the
provocation which he has received.” /1/ There are obvious reasons for
taking the actual state of the defendant’s consciousness into account to
this extent. The only ground for not applying the general rule is, that
the defendant was in such a state that he could not be expected to
remember or be influenced by the fear of punishment; if he could be, the
ground of exception disappears. Yet even here, rightly or wrongly, the law
has gone far in the direction of adopting external tests. The courts seem
to have decided between murder and manslaughter on such grounds as the
nature of the weapon used, /2/ or the length of time between the
provocation and the act. /3/ But in other cases the question whether the
prisoner was deprived of self-control by passion has been left to the
jury. /4/

As the object of this Lecture is not to give an outline of the criminal
law, but to explain its general theory, I shall only consider such
offences as throw some special light upon the subject, and shall treat of
those in such order as seems best fitted for that purpose. It will now be
useful to take up malicious mischief, and to compare the malice required
to constitute that offence with the malice aforethought of murder.

The charge of malice aforethought in an indictment for murder has been
shown not to mean a state of the defendant’s mind, as is often thought,
except in the sense that he knew circumstances which did in fact make his
conduct dangerous. It is, in truth, an allegation like that of negligence,
which asserts that the party accused did not [63] come up to the legal
standard of action under the circumstances in which he found himself, and
also that there was no exceptional fact or excuse present which took the
case out of the general rule. It is an averment of a conclusion of law
which is permitted to abridge the facts (positive and negative) on which
it is founded.

When a statute punishes the “wilfully and maliciously” injuring another’s
property, it is arguable, if not clear, that something more is meant. The
presumption that the second word was not added without some meaning is
seconded by the unreasonableness of making every wilful trespass criminal.
/1/ If this reasoning prevails, maliciously is here used in its popular
sense, and imports that the motive for the defendant’s act was a wish to
harm the owner of the property, or the thing itself, if living, as an end,
and for the sake of the harm. Malice in this sense has nothing in common
with the malice of murder.

Statutory law need not profess to be consistent with itself, or with the
theory adopted by judicial decisions. Hence there is strictly no need to
reconcile such a statute with the principles which have been explained.
But there is no inconsistency. Although punishment must be confined to
compelling external conformity to a rule of conduct, so far that it can
always be avoided by avoiding or doing certain acts as required, with
whatever intent or for whatever motive, still the prohibited conduct may
not be hurtful unless it is accompanied by a particular state of feeling.

Common disputes about property are satisfactorily settled by compensation.
But every one knows that sometimes secret harm is done by neighbor to
neighbor out of [64] pure malice and spite. The damage can be paid
for, but the malignity calls for revenge, and the difficulty of detecting
the authors of such wrongs, which are always done secretly, affords a
ground for punishment, even if revenge is thought insufficient.

How far the law will go in this direction it is hard to say. The crime of
arson is defined to be the malicious and wilful burning of the house of
another man, and is generally discussed in close connection with malicious
mischief. It has been thought that the burning was not malicious where a
prisoner set fire to his prison, not from a desire to consume the
building, but solely to effect his escape. But it seems to be the better
opinion that this is arson, /1/ in which case an intentional burning is
malicious within the meaning of the rule. When we remember that arson was
the subject of one of the old appeals which take us far back into the
early law, /2/ we may readily understand that only intentional burnings
were redressed in that way. /3/ The appeal of arson was brother to the
appeal de pace et plagis. As the latter was founded on a warlike assault,
the former supposed a house-firing for robbery or revenge, /4/ such as
that by which Njal perished in the Icelandic Saga. But this crime seems to
have had the same history as others. As soon as intent is admitted to be
sufficient, the law is on the high-road to an external standard. A man who
intentionally sets fire to his own house, which is so near to other houses
that the fire will manifestly endanger them, is guilty of arson if one of
the other houses is burned in consequence. /5/ In this case, an act which
would not [65] have been arson, taking only its immediate consequences
into account, becomes arson by reason of more remote consequences which
were manifestly likely to follow, whether they were actually intended or
not. If that may be the effect of setting fire to things which a man has a
right to burn, so far as they alone are concerned, why, on principle,
should it not be the effect of any other act which is equally likely under
the surrounding circumstances to cause the same harm. /1/ Cases may easily
be imagined where firing a gun, or making a chemical mixture, or piling up
oiled rags, or twenty other things, might be manifestly dangerous in the
highest degree and actually lead to a conflagration. If, in such cases,
the crime is held to have been committed, an external standard is reached,
and the analysis which has been made of murder applies here.

There is another class of cases in which intent plays an important part,
for quite different reasons from those which have been offered to account
for the law of malicious mischief. The most obvious examples of this class
are criminal attempts. Attempt and intent, of course, are two distinct
things. Intent to commit a crime is not itself criminal. There is no law
against a man’s intending to commit a murder the day after tomorrow. The
law only deals with conduct. An attempt is an overt act. It differs from
the attempted crime in this, that the act has failed to bring about the
result which would have given it the character of the principal crime. If
an attempt to murder results in death within a year and a day, it is
murder. If an attempt to steal results in carrying off the owner’s goods,
it is larceny.

If an act is done of which the natural and probable [66] effect under the
circumstances is the accomplishment of a substantive crime, the criminal
law, while it may properly enough moderate the severity of punishment if
the act has not that effect in the particular case, can hardly abstain
altogether from punishing it, on any theory. It has been argued that an
actual intent is all that can give the act a criminal character in such
instances. /1/ But if the views which I have advanced as to murder and
manslaughter are sound, the same principles ought logically to determine
the criminality of acts in general. Acts should be judged by their
tendency under the known circumstances, not by the actual intent which
accompanies them.

It may be true that in the region of attempts, as elsewhere, the law began
with cases of actual intent, as those cases are the most obvious ones. But
it cannot stop with them, unless it attaches more importance to the
etymological meaning of the word attempt than to the general principles of
punishment. Accordingly there is at least color of authority for the
proposition that an act is punishable as an attempt, if, supposing it to
have produced its natural and probable effect, it would have amounted to a
substantive crime. /2/

But such acts are not the only punishable attempts. There is another class
in which actual intent is clearly necessary, and the existence of this
class as well as the name (attempt) no doubt tends to affect the whole
doctrine. Some acts may be attempts or misdemeanors which [67]
could not have effected the crime unless followed by other acts on the
part of the wrong-doer. For instance, lighting a match with intent to set
fire to a haystack has been held to amount to a criminal attempt to burn
it, although the defendant blew out the match on seeing that he was
watched. /1/ So the purchase of dies for making counterfeit coin is a
misdemeanor, although of course the coin would not be counterfeited unless
the dies were used. /2/

In such cases the law goes on a new principle, different from that
governing most substantive crimes. The reason for punishing any act must
generally be to prevent some harm which is foreseen as likely to follow
that act under the circumstances in which it is done. In most substantive
crimes the ground on which that likelihood stands is the common working of
natural causes as shown by experience. But when an act is punished the
natural effect of which is not harmful under the circumstances, that
ground alone will not suffice. The probability does not exist unless there
are grounds for expecting that the act done will be followed by other acts
in connection with which its effect will be harmful, although not so
otherwise. But as in fact no such acts have followed, it cannot, in
general, be assumed, from the mere doing of what has been done, that they
would have followed if the actor had not been interrupted. They would not
have followed it unless the actor had chosen, and the only way generally
available to show that he would have chosen to do them is by showing that
he intended to do them when he did what he did. The accompanying intent in
that case renders the otherwise [68] innocent act harmful,
because it raises a probability that it will be followed by such other
acts and events as will all together result in harm. The importance of the
intent is not to show that the act was wicked, but to show that it was
likely to be followed by hurtful consequences.

It will be readily seen that there are limits to this kind of liability.
The law does not punish every act which is done with the intent to bring
about a crime. If a man starts from Boston to Cambridge for the purpose of
committing a murder when he gets there, but is stopped by the draw and
goes home, he is no more punishable than if he had sat in his chair and
resolved to shoot somebody, but on second thoughts had given up the
notion. On the other hand, a slave who ran after a white woman, but
desisted before he caught her, has been convicted of an attempt to commit
rape. /1/ We have seen what amounts to an attempt to burn a haystack; but
it was said in the same case, that, if the defendant had gone no further
than to buy a box of matches for the purpose, he would not have been
liable.

Eminent judges have been puzzled where to draw the line, or even to state
the principle on which it should be drawn, between the two sets of cases.
But the principle is believed to be similar to that on which all other
lines are drawn by the law. Public policy, that is to say, legislative
considerations, are at the bottom of the matter; the considerations being,
in this case, the nearness of the danger, the greatness of the harm, and
the degree of apprehension felt. When a man buys matches to fire a
haystack, or starts on a journey meaning to murder at the end of it, there
is still a considerable chance that he will [69] change his mind before
he comes to the point. But when he has struck the match, or cocked and
aimed the pistol, there is very little chance that he will not persist to
the end, and the danger becomes so great that the law steps in. With an
object which could not be used innocently, the point of intervention might
be put further back, as in the case of the purchase of a die for coining.

The degree of apprehension may affect the decision, as well as the degree
of probability that the crime will be accomplished. No doubt the fears
peculiar to a slaveowning community had their share in the conviction
which has just been mentioned.

There is one doubtful point which should not be passed over. It has been
thought that to shoot at a block of wood thinking it to be a man is not an
attempt to murder, /1/ and that to put a hand into an empty pocket,
intending to pick it, is not an attempt to commit larceny, although on the
latter question there is a difference of opinion. /2/ The reason given is,
that an act which could not have effected the crime if the actor had been
allowed to follow it up to all results to which in the nature of things it
could have led, cannot be an attempt to commit that crime when
interrupted. At some point or other, of course, the law must adopt this
conclusion, unless it goes on the theory of retribution for guilt, and not
of prevention of harm.

But even to prevent harm effectually it will not do to be too exact. I do
not suppose that firing a pistol at a man with intent to kill him is any
the less an attempt to murder because the bullet misses its aim. Yet there
the act has produced the whole effect possible to it in the [70] course of
nature. It is just as impossible that that bullet under those
circumstances should hit that man, as to pick an empty pocket. But there
is no difficulty in saying that such an act under such circumstances is so
dangerous, so far as the possibility of human foresight is concerned, that
it should be punished. No one can absolutely know, though many would be
pretty sure, exactly where the bullet will strike; and if the harm is
done, it is a very great harm. If a man fires at a block, no harm can
possibly ensue, and no theft can be committed in an empty pocket, besides
that the harm of successful theft is less than that of murder. Yet it
might be said that even such things as these should be punished, in order
to make discouragement broad enough and easy to understand.

There remain to be considered certain substantive crimes, which differ in
very important ways from murder and the like, and for the explanation of
which the foregoing analysis of intent in criminal attempts and analogous
misdemeanors will be found of service.

The type of these is larceny. Under this name acts are punished which of
themselves would not be sufficient to accomplish the evil which the law
seeks to prevent, and which are treated as equally criminal, whether the
evil has been accomplished or not. Murder, manslaughter, and arson, on the
other hand, are not committed unless the evil is accomplished, and they
all consist of acts the tendency of which under the surrounding
circumstances is to hurt or destroy person or property by the mere working
of natural laws.

In larceny the consequences immediately flowing from the act are generally
exhausted with little or no harm to the owner. Goods are removed from his
possession by [71] trespass, and that is all, when the crime is
complete. But they must be permanently kept from him before the harm is
done which the law seeks to prevent. A momentary loss of possession is not
what has been guarded against with such severe penalties. What the law
means to prevent is the loss of it wholly and forever, as is shown by the
fact that it is not larceny to take for a temporary use without intending
to deprive the owner of his property. If then the law punishes the mere
act of taking, it punishes an act which will not of itself produce the
evil effect sought to be prevented, and punishes it before that effect has
in any way come to pass.

The reason is plain enough. The law cannot wait until the property has
been used up or destroyed in other hands than the owner’s, or until the
owner has died, in order to make sure that the harm which it seeks to
prevent has been done. And for the same reason it cannot confine itself to
acts likely to do that harm. For the harm of permanent loss of property
will not follow from the act of taking, but only from the series of acts
which constitute removing and keeping the property after it has been
taken. After these preliminaries, the bearing of intent upon the crime is
easily seen.

According to Mr. Bishop, larceny is “the taking and removing, by trespass,
of personal property which the trespasser knows to belong either generally
or specially to another, with the intent to deprive such owner of his
ownership therein; and perhaps it should be added, for the sake of some
advantage to the trespasser, a proposition on which the decisions are not
harmonious.” /1/

There must be an intent to deprive such owner of his [72] ownership
therein, it is said. But why? Is it because the law is more anxious not to
put a man in prison for stealing unless he is actually wicked, than it is
not to hang him for killing another? That can hardly be. The true answer
is, that the intent is an index to the external event which probably would
have happened, and that, if the law is to punish at all, it must, in this
case, go on probabilities, not on accomplished facts. The analogy to the
manner of dealing with attempts is plain. Theft may be called an attempt
to permanently deprive a man of his property, which is punished with the
same severity whether successful or not. If theft can rightly be
considered in this way, intent must play the same part as in other
attempts. An act which does not fully accomplish the prohibited result may
be made wrongful by evidence that but for some interference it would have
been followed by other acts co-ordinated with it to produce that result.
This can only be shown by showing intent. In theft the intent to deprive
the owner of his property establishes that the thief would have retained,
or would not have taken steps to restore, the stolen goods. Nor would it
matter that the thief afterwards changed his mind and returned the goods.
From the point of view of attempt, the crime was already complete when the
property was carried off.

It may be objected to this view, that, if intent is only a makeshift which
from a practical necessity takes the place of actual deprivation, it ought
not to be required where the actual deprivation is wholly accomplished,
provided the same criminal act produces the whole effect. Suppose, for
instance, that by one and the same motion a man seizes and backs another’s
horse over a precipice. The whole evil which the law seeks to prevent is
the natural and manifestly [73] certain consequence of the act under the
known circumstances. In such a case, if the law of larceny is consistent
with the theories here maintained, the act should be passed upon according
to its tendency, and the actual intent of the wrong-doer not in any way
considered. Yet it is possible, to say the least, that even in such a case
the intent would make all the difference. I assume that the act was
without excuse and wrongful, and that it would have amounted to larceny,
if done for the purpose of depriving the owner of his horse. Nevertheless,
if it was done for the sake of an experiment, and without actual foresight
of the destruction, or evil design against the owner, the trespasser might
not be held a thief.

The inconsistency, if there is one, seems to be explained by the way in
which the law has grown. The distinctions of the common law as to theft
are not those of a broad theory of legislation; they are highly technical,
and very largely dependent upon history for explanation. /1/

The type of theft is taking to one’s own user It used to be, and sometimes
still is, thought that the taking must be lucri catesa, for the sake of
some advantage to the thief. In such cases the owner is deprived of his
property by the thief’s keeping it, not by its destruction, and the
permanence of his loss can only be judged of beforehand by the intent to
keep. The intent is therefore always necessary, and it is naturally stated
in the form of a self-regarding intent. It was an advance on the old
precedents when it was decided that the intent to deprive the owner of his
property was sufficient. As late as 1815 the English judges stood only six
to five in favor of the proposition [74] that it was larceny to
take a horse intending to kill it for no other purpose than to destroy
evidence against a friend. /1/ Even that case, however, did not do away
with the universality of intent as a test, for the destruction followed
the taking, and it is an ancient rule that the criminality of the act must
be determined by the state of things at the time of the taking, and not
afterwards. Whether the law of larceny would follow what seems to be the
general principle of criminal law, or would be held back by tradition,
could only be decided by a case like that supposed above, where the same
act accomplishes both taking and destruction. As has been suggested
already, tradition might very possibly prevail.

Another crime in which the peculiarities noticed in larceny are still more
clearly marked, and at the same time more easily explained, is burglary.
It is defined as breaking and entering any dwelling-house by night with
intent to commit a felony therein. /2/ The object of punishing such a
breaking and entering is not to prevent trespasses, even when committed by
night, but only such trespasses as are the first step to wrongs of a
greater magnitude, like robbery or murder. /3/ In this case the function
of intent when proved appears more clearly than in theft, but it is
precisely similar. It is an index to the probability of certain future
acts which the law seeks to prevent. And here the law gives evidence that
this is the true explanation. For if the apprehended act did follow, then
it is no longer necessary to allege that the breaking and entering was
with that intent. An indictment for burglary which charges that [75] the
defendant broke into a dwelling-house and stole certain property, is just
as good as one which alleges that he broke in with intent to steal. /1/

It is believed that enough has now been said to explain the general theory
of criminal liability, as it stands at common law. The result may be
summed up as follows. All acts are indifferent per se.

In the characteristic type of substantive crime acts are rendered criminal
because they are done finder circumstances in which they will probably
cause some harm which the law seeks to prevent.

The test of criminality in such cases is the degree of danger shown by
experience to attend that act under those circumstances.

In such cases the mens rea, or actual wickedness of the party, is wholly
unnecessary, and all reference to the state of his consciousness is
misleading if it means anything more than that the circumstances in
connection with which the tendency of his act is judged are the
circumstances known to him. Even the requirement of knowledge is subject
to certain limitations. A man must find out at his peril things which a
reasonable and prudent man would have inferred from the things actually
known. In some cases, especially of statutory crimes, he must go even
further, and, when he knows certain facts, must find out at his peril
whether the other facts are present which would make the act criminal. A
man who abducts a girl from her parents in England must find out at his
peril whether she is under sixteen.

[76] In some cases it may be that the consequence of the act, under the
circumstances, must be actually foreseen, if it is a consequence which a
prudent man would not have foreseen. The reference to the prudent man, as
a standard, is the only form in which blameworthiness as such is an
element of crime, and what would be blameworthy in such a man is an
element;—first, as a survival of true moral standards; second,
because to punish what would not be blameworthy in an average member of
the community would be to enforce a standard which was indefensible
theoretically, and which practically was too high for that community.

In some cases, actual malice or intent, in the common meaning of those
words, is an element in crime. But it will be found that, when it is so,
it is because the act when done maliciously is followed by harm which
would not have followed the act alone, or because the intent raises a
strong probability that an act, innocent in itself, will be followed by
other acts or events in connection with which it will accomplish the
result sought to be prevented by the law.

[77]

LECTURE III. — TORTS.—TRESPASS AND NEGLIGENCE.

The object of the next two Lectures is to discover whether there is any
common ground at the bottom of all liability in tort, and if so, what that
ground is. Supposing the attempt to succeed, it will reveal the general
principle of civil liability at common law. The liabilities incurred by
way of contract are more or less expressly fixed by the agreement of the
parties concerned, but those arising from a tort are independent of any
previous consent of the wrong-doer to bear the loss occasioned by his act.
If A fails to pay a certain sum on a certain day, or to deliver a lecture
on a certain night, after having made a binding promise to do so, the
damages which he has to pay are recovered in accordance with his consent
that some or all of the harms which may be caused by his failure shall
fall upon him. But when A assaults or slanders his neighbor, or converts
his neighbor’s property, he does a harm which he has never consented to
bear, and if the law makes him pay for it, the reason for doing so must be
found in some general view of the conduct which every one may fairly
expect and demand from every other, whether that other has agreed to it or
not.

Such a general view is very hard to find. The law did not begin with a
theory. It has never worked one out. The point from which it started and
that at which I shall [78] try to show that it has arrived, are on
different planes. In the progress from one to the other, it is to be
expected that its course should not be straight and its direction not
always visible. All that can be done is to point out a tendency, and to
justify it. The tendency, which is our main concern, is a matter of fact
to be gathered from the cases. But the difficulty of showing it is much
enhanced by the circumstance that, until lately, the substantive law has
been approached only through the categories of the forms of action.
Discussions of legislative principle have been darkened by arguments on
the limits between trespass and case, or on the scope of a general issue.
In place of a theory of tort, we have a theory of trespass. And even
within that narrower limit, precedents of the time of the assize and
jurata have been applied without a thought of their connection with a long
forgotten procedure.

Since the ancient forms of action have disappeared, a broader treatment of
the subject ought to be possible. Ignorance is the best of law reformers.
People are glad to discuss a question on general principles, when they
have forgotten the special knowledge necessary for technical reasoning.
But the present willingness to generalize is founded on more than merely
negative grounds. The philosophical habit of the day, the frequency of
legislation, and the ease with which the law may be changed to meet the
opinions and wishes of the public, all make it natural and unavoidable
that judges as well as others should openly discuss the legislative
principles upon which their decisions must always rest in the end, and
should base their judgments upon broad considerations of policy to which
the traditions of the bench would hardly have tolerated a reference fifty
years ago.

[79] The business of the law of torts is to fix the dividing lines between
those cases in which a man is liable for harm which he has done, and those
in which he is not. But it cannot enable him to predict with certainty
whether a given act under given circumstances will make him liable,
because an act will rarely have that effect unless followed by damage, and
for the most part, if not always, the consequences of an act are not
known, but only guessed at as more or less probable. All the rules that
the law can lay down beforehand are rules for determining the conduct
which will be followed by liability if it is followed by harm—that
is, the conduct which a man pursues at his peril. The only guide for the
future to be drawn from a decision against a defendant in an action of
tort is that similar acts, under circumstances which cannot be
distinguished except by the result from those of the defendant, are done
at the peril of the actor; that if he escapes liability, it is simply
because by good fortune no harm comes of his conduct in the particular
event.

If, therefore, there is any common ground for all liability in tort, we
shall best find it by eliminating the event as it actually turns out, and
by considering only the principles on which the peril of his conduct is
thrown upon the actor. We are to ask what are the elements, on the
defendant’s side, which must all be present before liability is possible,
and the presence of which will commonly make him liable if damage follows.

The law of torts abounds in moral phraseology. It has much to say of
wrongs, of malice, fraud, intent, and negligence. Hence it may naturally
be supposed that the risk of a man’s conduct is thrown upon him as the
result of some moral short-coming. But while this notion has been [80]
entertained, the extreme opposite will be found to have been a far more
popular opinion;—I mean the notion that a man is answerable for all
the consequences of his acts, or, in other words, that he acts at his
peril always, and wholly irrespective of the state of his consciousness
upon the matter.

To test the former opinion it would be natural to take up successively the
several words, such as negligence and intent, which in the language of
morals designate various well-understood states of mind, and to show their
significance in the law. To test the latter, it would perhaps be more
convenient to consider it under the head of the several forms of action.
So many of our authorities are decisions under one or another of these
forms, that it will not be safe to neglect them, at least in the first
instance; and a compromise between the two modes of approaching the
subject may be reached by beginning with the action of trespass and the
notion of negligence together, leaving wrongs which are defined as
intentional for the next Lecture.

Trespass lies for unintentional, as well as for intended wrongs. Any
wrongful and direct application of force is redressed by that action. It
therefore affords a fair field for a discussion of the general principles
of liability for unintentional wrongs at common law. For it can hardly be
supposed that a man’s responsibility for the consequences of his acts
varies as the remedy happens to fall on one side or the other of the
penumbra which separates trespass from the action on the case. And the
greater part of the law of torts will be found under one or the other of
those two heads.

It might be hastily assumed that the action on the case [81] is
founded on the defendant’s negligence. But if that be so, the same
doctrine must prevail in trespass. It might be assumed that trespass is
founded on the defendant’s having caused damage by his act, without regard
to negligence. But if that be true, the law must apply the same criterion
to other wrongs differing from trespass only in some technical point; as,
for instance, that the property damaged was in the defendant’s possession.
Neither of the above assumptions, however, can be hastily permitted. It
might very well be argued that the action on the case adopts the severe
rule just suggested for trespass, except when the action is founded on a
contract. Negligence, it might be said, had nothing to do with the
common-law liability for a nuisance, and it might be added that, where
negligence was a ground of liability, a special duty had to be founded in
the defendant’s super se assumpsit, or public calling. /1/ On the other
hand, we shall see what can be said for the proposition, that even in
trespass there must at least be negligence. But whichever argument
prevails for the one form of action must prevail for the other. The
discussion may therefore be shortened on its technical side, by confining
it to trespass so far as may be practicable without excluding light to be
got from other parts of the law.

As has just been hinted, there are two theories of the common-law
liability for unintentional harm. Both of them seem to receive the implied
assent of popular textbooks, and neither of them is wanting in
plausibility and the semblance of authority.

The first is that of Austin, which is essentially the theory of a
criminalist. According to him, the characteristic [82] feature of law,
properly so called, is a sanction or detriment threatened and imposed by
the sovereign for disobedience to the sovereign’s commands. As the greater
part of the law only makes a man civilly answerable for breaking it,
Austin is compelled to regard the liability to an action as a sanction,
or, in other words, as a penalty for disobedience. It follows from this,
according to the prevailing views of penal law, that such liability ought
only to be based upon personal fault; and Austin accepts that conclusion,
with its corollaries, one of which is that negligence means a state of the
party’s mind. /1/ These doctrines will be referred to later, so far as
necessary.

The other theory is directly opposed to the foregoing. It seems to be
adopted by some of the greatest common law authorities, and requires
serious discussion before it can be set aside in favor of any third
opinion which may be maintained. According to this view, broadly stated,
under the common law a man acts at his peril. It may be held as a sort of
set-off, that he is never liable for omissions except in consequence of
some duty voluntarily undertaken. But the whole and sufficient ground for
such liabilities as he does incur outside the last class is supposed to be
that he has voluntarily acted, and that damage has ensued. If the act was
voluntary, it is totally immaterial that the detriment which followed from
it was neither intended nor due to the negligence of the actor.

In order to do justice to this way of looking at the subject, we must
remember that the abolition of the common-law forms of pleading has not
changed the rules of substantive law. Hence, although pleaders now
generally [83] allege intent or negligence, anything which would formerly
have been sufficient to charge a defendant in trespass is still
sufficient, notwithstanding the fact that the ancient form of action and
declaration has disappeared.

In the first place, it is said, consider generally the protection given by
the law to property, both within and outside the limits of the last-named
action. If a man crosses his neighbor’s boundary by however innocent a
mistake, or if his cattle escape into his neighbor’s field, he is said to
be liable in trespass quare clausum fregit. If an auctioneer in the most
perfect good faith, and in the regular course of his business, sells goods
sent to his rooms for the purpose of being sold, he may be compelled to
pay their full value if a third person turns out to be the owner, although
he has paid over the proceeds, and has no means of obtaining indemnity.

Now suppose that, instead of a dealing with the plaintiff’s property, the
case is that force has proceeded directly from the defendant’s body to the
plaintiff’s body, it is urged that, as the law cannot be less careful of
the persons than of the property of its subjects, the only defences
possible are similar to those which would have been open to an alleged
trespass on land. You may show that there was no trespass by showing that
the defendant did no act; as where he was thrown from his horse upon the
plaintiff, or where a third person took his hand and struck the plaintiff
with it. In such cases the defendant’s body is file passive instrument of
an external force, and the bodily motion relied on by the plaintiff is not
his act at all. So you may show a justification or excuse in the conduct
of the plaintiff himself. But if no such excuse is shown, and the
defendant has voluntarily acted, he must answer [84] for the consequences,
however little intended and however unforeseen. If, for instance, being
assaulted by a third person, the defendant lifted his stick and
accidentally hit the plaintiff, who was standing behind him, according to
this view he is liable, irrespective of any negligence toward the party
injured.

The arguments for the doctrine under consideration are, for the most part,
drawn from precedent, but it is sometimes supposed to be defensible as
theoretically sound. Every man, it is said, has an absolute right to his
person, and so forth, free from detriment at the hands of his neighbors.
In the cases put, the plaintiff has done nothing; the defendant, on the
other hand, has chosen to act. As between the two, the party whose
voluntary conduct has caused the damage should suffer, rather than one who
has had no share in producing it.

We have more difficult matter to deal with when we turn to the pleadings
and precedents in trespass. The declaration says nothing of negligence,
and it is clear that the damage need not have been intended. The words vi
et armis and contra pacere, which might seem to imply intent, are supposed
to have been inserted merely to give jurisdiction to the king’s court.
Glanvill says it belongs to the sheriff, in case of neglect on the part of
lords of franchise, to take cognizance of melees, blows, and even wounds,
unless the accuser add a charge of breach of the king’s peace (nisi
accusator adjiciat de pace Domini Regis infracta). /1/ Reeves observes,
“In this distinction between the sheriff’s jurisdiction and that of the
king, we see the reason of the allegation in modern indictments and writs,
vi et amis, of ‘the king’s crown and dignity,’ ‘the king’s [85]
peace,’ and ‘the peace,’—this last expression being sufficient,
after the peace of the sheriff had ceased to be distinguished as a
separate jurisdiction.” /1/

Again, it might be said that, if the defendant’s intent or neglect was
essential to his liability, the absence of both would deprive his act of
the character of a trespass, and ought therefore to be admissible under
the general issue. But it is perfectly well settled at common law that
“Not guilty” only denies the act. /2/

Next comes the argument from authority. I will begin with an early and
important case. /3/ It was trespass quare clausum. The defendant pleaded
that he owned adjoining land, upon which was a thorn hedge; that he cut
the thorns, and that they, against his will (ipso invito), fell on the
plaintiff’s land, and the defendant went quickly upon the same, and took
them, which was the trespass complained of. And on demurrer judgment was
given for the plaintiff. The plaintiff’s counsel put cases which have been
often repeated. One of them, Fairfax, said: “There is a diversity between
an act resulting in a felony, and one resulting in a trespass…. If one
is cutting trees, and the boughs fall on a man and wound him, in this case
he shall have an action of trespass, &c., and also, sir, if one is
shooting at butts, and his bow shakes in his hands, and kills a man, ipso
invito, it is no felony, as has been said, [86] &c.; but if he wounds
one by shooting, he shall have a good action of trespass against him, and
yet the shooting was lawful, &c., and the wrong which the other
receives was against his will, &c.; and so here, &c.” Brian,
another counsel, states the whole doctrine, and uses equally familiar
illustrations. “When one does a thing, he is bound to do it in such a way
that by his act no prejudice or damage shall be done to &c. As if I am
building a house, and when the timber is being put up a piece of timber
falls on my neighbor’s house and breaks his house, he shall have a good
action, &c.; and yet the raising of the house was lawful, and the
timber fell, me invito, &c. And so if one assaults me and I cannot
escape, and I in self-defence lift my stick to strike him, and in lifting
it hit a man who is behind me, in this case he shall have an action
against me, yet my raising my stick was lawful in self-defence, and I hit
him, me invito, &c.; and so here, &C.”

“Littleton, J. to the same intent, and if a man is damaged he ought to be
recompensed…. If your cattle come on my land and eat my grass,
notwithstanding you come freshly and drive them out, you ought to make
amends for what your cattle have done, be it more or less…. And, sir, if
this should be law that he might enter and take the thorns, for the same
reason, if he cut a large tree, he might come with his wagons and horses
to carry the trees off, which is not reason, for perhaps he has corn or
other crops growing, &c., and no more here, for the law is all one in
great things and small…. Choke, C. J. to the same intent, for when the
principal thing was not lawful, that which depends upon it was not lawful;
for when he cut the thorns and they fell on my land, [87] this falling was not
lawful, and therefore his coming to take them out was not lawful. As to
what was said about their falling in ipso invito, that is no plea, but he
ought to show that he could not do it in any other way, or that he did all
that was in his power to keep them out.”

Forty years later, /1/ the Year Books report Rede, J. as adopting the
argument of Fairfax in the last case. In trespass, he says, “the intent
cannot be construed; but in felony it shall be. As when a man shoots at
butts and kills a man, it is not felony et il ser come n’avoit l’entent de
luy tuer; and so of a tiler on a house who with a stone kills a man
unwittingly, it is not felony. /2/ But when a man shoots at the butts and
wounds a man, though it is against his will, he shall be called a
trespasser against his intent.”

There is a series of later shooting cases, Weaver v. Ward, /3/ Dickenson
v. Watson, /4/ and Underwood v. Hewson, /5/ followed by the Court of
Appeals of New York in Castle v. Duryee, /6/ in which defences to the
effect that the damage was done accidentally and by misfortune, and
against the will of the defendant, were held insufficient.

In the reign of Queen Elizabeth it was held that where a man with a gun at
the door of his house shot at a fowl, and thereby set fire to his own
house and to the house of his neighbor, he was liable in an action on the
case generally, the declaration not being on the custom of the realm, [88]
“viz. for negligently keeping his fire.” “For the injury is the same,
although this mischance was not by a common negligence, but by
misadventure.” /1/

The above-mentioned instances of the stick and shooting at butts became
standard illustrations; they are repeated by Sir Thomas Raymond, in Bessey
v. Olliot, /2/ by Sir William Blackstone, in the famous squib case, /3/
and by other judges, and have become familiar through the textbooks. Sir
T. Raymond, in the above case, also repeats the thought and almost the
words of Littleton, J., which have been quoted, and says further: “In all
civil acts the law doth not so much regard the intent of the actor, as the
loss and damage of the party suffering.” Sir William Blackstone also
adopts a phrase from Dickenson v. Watson, just cited: “Nothing but
inevitable necessity” is a justification. So Lord Ellenborough, in Leame
v. Bray: /4/ “If the injury were received from the personal act of
another, it was deemed sufficient to make it trespass”; or, according to
the more frequently quoted language of Grose, J., in the same case:
“Looking into all the cases from the Year Book in the 21 H. VII. down to
the latest decision on the subject, I find the principle to be, that if
the injury be done by the act of the party himself at the time, or he be
the immediate cause of it, though it happen accidentally or by misfortune,
yet he is answerable in trespass.” Further citations are deemed
unnecessary.

In spite, however, of all the arguments which may be [89] urged for the
rule that a man acts at his peril, it has been rejected by very eminent
courts, even under the old forms of action. In view of this fact, and of
the further circumstance that, since the old forms have been abolished,
the allegation of negligence has spread from the action on the case to all
ordinary declarations in tort which do not allege intent, probably many
lawyers would be surprised that any one should think it worth while to go
into the present discussion. Such is the natural impression to be derived
from daily practice. But even if the doctrine under consideration had no
longer any followers, which is not the case, it would be well to have
something more than daily practice to sustain our views upon so
fundamental a question; as it seems to me at least, the true principle is
far from being articulately grasped by all who are interested in it, and
can only be arrived at after a careful analysis of what has been thought
hitherto. It might be thought enough to cite the decisions opposed to the
rule of absolute responsibility, and to show that such a rule is
inconsistent with admitted doctrines and sound policy. But we may go
further with profit, and inquire whether there are not strong grounds for
thinking that the common law has never known such a rule, unless in that
period of dry precedent which is so often to be found midway between a
creative epoch and a period of solvent philosophical reaction.
Conciliating the attention of those who, contrary to most modern
practitioners, still adhere to the strict doctrine, by reminding them once
more that there are weighty decisions to be cited adverse to it, and that,
if they have involved an innovation, the fact that it has been made by
such magistrates as Chief Justice Shaw goes far to prove that the change
was politic, I [90] think I may assert that a little reflection
will show that it was required not only by policy, but by consistency. I
will begin with the latter.

The same reasoning which would make a man answerable in trespass for all
damage to another by force directly resulting from his own act,
irrespective of negligence or intent, would make him answerable in case
for the like damage similarly resulting from the act of his servant, in
the course of the latter’s employment. The discussions of the company’s
negligence in many railway cases would therefore be wholly out of place,
for although, to be sure, there is a contract which would make the company
liable for negligence, that contract cannot be taken to diminish any
liability which would otherwise exist for a trespass on the part of its
employees.

More than this, the same reasoning would make a defendant responsible for
all damage, however remote, of which his act could be called the cause. So
long, at least, as only physical or irresponsible agencies, however
unforeseen, co-operated with the act complained of to produce the result,
the argument which would resolve the case of accidentally striking the
plaintiff, when lifting a stick in necessary self-defence, adversely to
the defendant, would require a decision against him in every case where
his act was a factor in the result complained of. The distinction between
a direct application of force, and causing damage indirectly, or as a more
remote consequence of one’s act, although it may determine whether the
form of action should be trespass or case, does not touch the theory of
responsibility, if that theory be that a man acts at his peril.

[91]
As was said at the outset, if the strict liability is to be maintained at
all, it must be maintained throughout. A principle cannot be stated which
would retain the strict liability in trespass while abandoning it in case.
It cannot be said that trespass is for acts alone, and case for
consequences of those acts. All actions of trespass are for consequences
of acts, not for the acts themselves. And some actions of trespass are for
consequences more remote from the defendant’s act than in other instances
where the remedy would be case.

An act is always a voluntary muscular contraction, and nothing else. The
chain of physical sequences which it sets in motion or directs to the
plaintiff’s harm is no part of it, and very generally a long train of such
sequences intervenes. An example or two will make this extremely clear.

When a man commits an assault and battery with a pistol, his only act is
to contract the muscles of his arm and forefinger in a certain way, but it
is the delight of elementary writers to point out what a vast series of
physical changes must take place before the harm is done. Suppose that,
instead of firing a pistol, he takes up a hose which is discharging water
on the sidewalk, and directs it at the plaintiff, he does not even set in
motion the physical causes which must co-operate with his act to make a
battery. Not only natural causes, but a living being, may intervene
between the act and its effect. Gibbons v. Pepper, /1/ which decided that
there was no battery when a man’s horse was frightened by accident or a
third person and ran away with him, and ran over the plaintiff, takes the
distinction that, if the rider by spurring is the cause of [92] the
accident, then he is guilty. In Scott v. Shepherd, /1/ already mentioned,
trespass was maintained against one who had thrown a squib into a crowd,
where it was tossed from hand to hand in self-defence until it burst and
injured the plaintiff. Here even human agencies were a part of the chain
between the defendant’s act and the result, although they were treated as
more or less nearly automatic, in order to arrive at the decision.

Now I repeat, that, if principle requires us to charge a man in trespass
when his act has brought force to bear on another through a comparatively
short train of intervening causes, in spite of his having used all
possible care, it requires the same liability, however numerous and
unexpected the events between the act and the result. If running a man
down is a trespass when the accident can be referred to the rider’s act of
spurring, why is it not a tort in every case, as was argued in Vincent v.
Stinehour, /2/ seeing that it can always be referred more remotely to his
act of mounting and taking the horse out?

Why is a man not responsible for the consequences of an act innocent in
its direct and obvious effects, when those consequences would not have
followed but for the intervention of a series of extraordinary, although
natural, events? The reason is, that, if the intervening events are of
such a kind that no foresight could have been expected to look out for
them, the defendant is not to blame for having failed to do so. It seems
to be admitted by the English judges that, even on the question whether
the acts of leaving dry trimmings in hot weather by the side of a
railroad, and then sending an engine over the track, are [93]
negligent,—that is, are a ground of liability,—the
consequences which might reasonably be anticipated are material. /1/ Yet
these are acts which, under the circumstances, can hardly be called
innocent in their natural and obvious effects. The same doctrine has been
applied to acts in violation of statute which could not reasonably have
been expected to lead to the result complained of. /2/

But there is no difference in principle between the case where a natural
cause or physical factor intervenes after the act in some way not to be
foreseen, and turns what seemed innocent to harm, and the case where such
a cause or factor intervenes, unknown, at the time; as, for the matter of
that, it did in the English cases cited. If a man is excused in the one
case because he is not to blame, he must be in the other. The difference
taken in Gibbons v. Pepper, cited above, is not between results which are
and those which are not the consequences of the defendant’s acts: it is
between consequences which he was bound as a reasonable man to
contemplate, and those which he was not. Hard spurring is just so much
more likely to lead to harm than merely riding a horse in the street, that
the court thought that the defendant would be bound to look out for the
consequences of the one, while it would not hold him liable for those
resulting merely from the other; [94] because the possibility
of being run away with when riding quietly, though familiar, is
comparatively slight. If, however, the horse had been unruly, and had been
taken into a frequented place for the purpose of being broken, the owner
might have been liable, because “it was his fault to bring a wild horse
into a place where mischief might probably be done.”

To return to the example of the accidental blow with a stick lifted in
self-defence, there is no difference between hitting a person standing in
one’s rear and hitting one who was pushed by a horse within range of the
stick just as it was lifted, provided that it was not possible, under the
circumstances, in the one case to have known, in the other to have
anticipated, the proximity. In either case there is wanting the only
element which distinguishes voluntary acts from spasmodic muscular
contractions as a ground of liability. In neither of them, that is to say,
has there been an opportunity of choice with reference to the consequence
complained of,—a chance to guard against the result which has come
to pass. A choice which entails a concealed consequence is as to that
consequence no choice.

The general principle of our law is that loss from accident must lie where
it falls, and this principle is not affected by the fact that a human
being is the instrument of misfortune. But relatively to a given human
being anything is accident which he could not fairly have been expected to
contemplate as possible, and therefore to avoid. In the language of the
late Chief Justice Nelson of New York: “No case or principle can be found,
or if found can be maintained, subjecting an individual to liability for
[95]
an act done without fault on his part…. All the cases concede that an
injury arising from inevitable accident, or, which in law or reason is the
same thing, from an act that ordinary human care and foresight are unable
to guard against, is but the misfortune of the sufferer, and lays no
foundation for legal responsibility.” /1/ If this were not so, any act
would be sufficient, however remote, which set in motion or opened the
door for a series of physical sequences ending in damage; such as riding
the horse, in the case of the runaway, or even coming to a place where one
is seized with a fit and strikes the plaintiff in an unconscious spasm.
Nay, why need the defendant have acted at all, and why is it not enough
that his existence has been at the expense of the plaintiff? The
requirement of an act is the requirement that the defendant should have
made a choice. But the only possible purpose of introducing this moral
element is to make the power of avoiding the evil complained of a
condition of liability. There is no such power where the evil cannot be
foreseen. /2/ Here we reach the argument from policy, and I shall
accordingly postpone for a moment the discussion of trespasses upon land,
and of conversions, and will take up the liability for cattle separately
at a later stage.

A man need not, it is true, do this or that act, the term act implies a
choice,—but he must act somehow. Furthermore, the public generally
profits by individual activity. As action cannot be avoided, and tends to
the public good, there is obviously no policy in throwing the hazard of
what is at once desirable and inevitable upon the actor. [96] The state
might conceivably make itself a mutual insurance company against
accidents, and distribute the burden of its citizens’ mishaps among all
its members. There might be a pension for paralytics, and state aid for
those who suffered in person or estate from tempest or wild beasts. As
between individuals it might adopt the mutual insurance principle pro
tanto, and divide damages when both were in fault, as in the rusticum
judicium of the admiralty, or it might throw all loss upon the actor
irrespective of fault. The state does none of these things, however, and
the prevailing view is that its cumbrous and expensive machinery ought not
to be set in motion unless some clear benefit is to be derived from
disturbing the status quo. State interference is an evil, where it cannot
be shown to be a good. Universal insurance, if desired, can be better and
more cheaply accomplished by private enterprise. The undertaking to
redistribute losses simply on the ground that they resulted from the
defendant’s act would not only be open to these objections, but, as it is
hoped the preceding discussion has shown, to the still graver one of
offending the sense of justice. Unless my act is of a nature to threaten
others, unless under the circumstances a prudent man would have foreseen
the possibility of harm, it is no more justifiable to make me indemnify my
neighbor against the consequences, than to make me do the same thing if I
had fallen upon him in a fit, or to compel me to insure him against
lightning.

I must now recur to the conclusions drawn from innocent trespasses upon
land, and conversions, and the supposed analogy of those cases to
trespasses against the person, lest the law concerning the latter should
be supposed to lie between two antinomies, each necessitating with equal
cogency an opposite conclusion to the other.

[97]
Take first the case of trespass upon land attended by actual damage. When
a man goes upon his neighbor’s land, thinking it is his own, he intends
the very act or consequence complained of. He means to intermeddle with a
certain thing in a certain way, and it is just that intended intermeddling
for which he is sued. /1/ Whereas, if he accidentally hits a stranger as
he lifts his staff in self defence, the fact, which is the gist of the
action,—namely, the contact between the staff and his neighbor’s
head,—was not intended, and could not have been foreseen. It might
be answered, to be sure, that it is not for intermeddling with property,
but for intermeddling with the plaintiff’s property, that a man is sued;
and that in the supposed cases, just as much as in that of the accidental
blow, the defendant is ignorant of one of the facts making up the total
environment, and which must be present to make his action wrong. He is
ignorant, that is to say, that the true owner either has or claims any
interest in the property in question, and therefore he does not intend a
wrongful act, because he does not mean to deal with his neighbor’s
property. But the answer to this is, that he does intend to do the damage
complained of. One who diminishes the value of property by intentional
damage knows it belongs to somebody. If he thinks it belongs to himself,
he expects whatever harm he may do to come out of his own pocket. It would
be odd if he were to get rid of the burden by discovering that it belonged
to his neighbor. It is a very different thing to say that he who
intentionally does harm must bear the loss, from saying that one from
whose acts harm follows accidentally, as [98] a consequence which
could not have been foreseen, must bear it.

Next, suppose the act complained of is an exercise of dominion over the
plaintiff’s property, such as a merely technical trespass or a conversion.
If the defendant thought that the property belonged to himself, there
seems to be no abstract injustice in requiring him to know the limits of
his own titles, or, if he thought that it belonged to another, in holding
him bound to get proof of title before acting. Consider, too, what the
defendant’s liability amounts to, if the act, whether an entry upon land
or a conversion of chattels, has been unattended by damage to the
property, and the thing has come back to the hands of the true owner. The
sum recovered is merely nominal, and the payment is nothing more than a
formal acknowledgment of the owner’s title; which, considering the effect
of prescription and statutes of limitation upon repeated acts of dominion,
is no more than right. /1/ All semblance of injustice disappears when the
defendant is allowed to avoid the costs of an action by tender or
otherwise.

But suppose the property has not come back to the hands of the true owner.
If the thing remains in the hands of the defendant, it is clearly right
that he should surrender it. And if instead of the thing itself he holds
the proceeds of a sale, it is as reasonable to make him pay over its value
in trover or assumpsit as it would have been to compel a surrender of the
thing. But the question whether the defendant has subsequently paid over
the proceeds of the sale of a chattel to a third person, cannot affect the
rights of the true owner of the [99] chattel. In the
supposed case of an auctioneer, for instance, if he had paid the true
owner, it would have been an answer to his bailor’s claim. If he has paid
his bailor instead, he has paid one whom he was not bound to pay, and no
general principle requires that this should be held to divest the
plaintiff’s right.

Another consideration affecting the argument that the law as to trespasses
upon property establishes a general principle, is that the defendant’s
knowledge or ignorance of the plaintiff’s title is likely to lie wholly in
his own breast, and therefore hardly admits of satisfactory proof. Indeed,
in many cases it cannot have been open to evidence at all at the time when
the law was settled, before parties were permitted to testify.
Accordingly, in Basely v. Clarkson, /1/ where the defence set up to an
action of trespass quare clausum was that the defendant in mowing his own
land involuntarily and by mistake mowed down some of the plaintiff’s
grass, the plaintiff had judgment on demurrer. “For it appears the fact
was voluntary, and his intention and knowledge are not traversable; they
can’t be known.”

This language suggests that it would be sufficient to explain the law of
trespass upon property historically, without attempting to justify it. For
it seems to be admitted that if the defendant’s mistake could be proved it
might be material. /2/ It will be noticed, further, that any general
argument from the law of trespass upon laud to that governing trespass
against the person is shown to be misleading by the law as to cattle. The
owner is bound at his peril [100] to keep them off his neighbor’s premises,
but he is not bound at his peril in all cases to keep them from his
neighbor’s person.

The objections to such a decision as supposed in the case of an auctioneer
do not rest on the general theory of liability, but spring altogether from
the special exigencies of commerce. It does not become unjust to hold a
person liable for unauthorized intermeddling with another’s property,
until there arises the practical necessity for rapid dealing. But where
this practical necessity exists, it is not surprising to find, and we do
find, a different tendency in the law. The absolute protection of
property, however natural to a primitive community more occupied in
production than in exchange, is hardly consistent with the requirements of
modern business. Even when the rules which we have been considering were
established, the traffic of the public markets was governed by more
liberal principles. On the continent of Europe it was long ago decided
that the policy of protecting titles must yield to the policy of
protecting trade. Casaregis held that the general principle nemo plus
juris in alium transferre potest quam ipse habet must give way in
mercantile transactions to possession vaut titre. /1/ In later times, as
markets overt have lost their importance, the Factors’ Acts and their
successive amendments have tended more and more in the direction of
adopting the Continental doctrine.

I must preface the argument from precedent with a reference to what has
been said already in the first Lecture about early forms of liability, and
especially about [101] the appeals. It was there shown that the
appeals de pace et plagis and of mayhem became the action of trespass, and
that those appeals and the early actions of trespass were always, so far
as appears, for intentional wrongs. /1/

The contra pacem in the writ of trespass was no doubt inserted to lay a
foundation for the king’s writ; but there seems to be no reason to
attribute a similar purpose to vi et armis, or cum vi sua, as it was often
put. Glanvill says that wounds are within the sheriff’s jurisdiction,
unless the appellor adds a charge of breach of the king’s peace. /2/ Yet
the wounds are given vi et armis as much in the one case as in the other.
Bracton says that the lesser wrongs described by him belong to the king’s
jurisdiction, “because they are sometimes against the peace of our lord
the king,” /3/ while, as has been observed, they were supposed to be
always committed intentionally. It might even perhaps be inferred that the
allegation contra pacem was originally material, and it will be remembered
that trespasses formerly involved the liability to pay a fine to the king.
/4/

If it be true that trespass was originally confined to intentional wrongs,
it is hardly necessary to consider the argument drawn from the scope of
the general issue. In form it was a mitigation of the strict denial de
verbo in verbum of the ancient procedure, to which the inquest given by
the king’s writ was unknown. /5/ The strict form seems to have lasted in
England some time after the trial of the issue by recognition was
introduced. /6/ When [102] a recognition was granted, the inquest was,
of course, only competent to speak to the facts, as has been said above.
/1/ When the general issue was introduced, trespass was still confined to
intentional wrongs.

We may now take up the authorities. It will be remembered that the earlier
precedents are of a date when the assize and jurata had not given place to
the modern jury. These bodies spoke from their own knowledge to an issue
defined by the writ, or to certain familiar questions of fact arising in
the trial of a cause, but did not hear the whole case upon evidence
adduced. Their function was more limited than that which has been gained
by the jury, and it naturally happened that, when they had declared what
the defendant had done, the judges laid down the standard by which those
acts were to be measured without their assistance. Hence the question in
the Year Books is not a loose or general inquiry of the jury whether they
think the alleged trespasser was negligent on such facts as they may find,
but a well-defined issue of law, to be determined by the court, whether
certain acts set forth upon the record are a ground of liability. It is
possible that the judges may have dealt pretty strictly with defendants,
and it is quite easy to pass from the premise that defendants have been
held trespassers for a variety of acts, without mention of neglect, to the
conclusion that any act by which another was damaged will make the actor
chargeable. But a more exact scrutiny of the early books will show that
liability in general, then as later, was [103] founded on the
opinion of the tribunal that the defendant ought to have acted otherwise,
or, in other words, that he was to blame.

Returning first to the case of the thorns in the Year Book, /1/ it will be
seen that the falling of the thorns into the plaintiff’s close, although a
result not wished by the defendant, was in no other sense against his
will. When he cut the thorns, he did an act which obviously and
necessarily would have that consequence, and he must be taken to have
foreseen and not to have prevented it. Choke, C. J. says, “As to what was
said about their falling in, ipso invito, that is no plea, but he ought to
show that he could not do it in any other way, or that he did all in his
power to keep them out”; and both the judges put the unlawfulness of the
entry upon the plaintiff’s land as a consequence of the unlawfulness of
dropping the thorns there. Choke admits that, if the thorns or a tree had
been blown over upon the plaintiff’s land, the defendant might have
entered to get them. Chief Justice Crew says of this case, in Millen v.
Fawdry, /2/ that the opinion was that “trespass lies, because he did not
plead that he did his best endeavor to hinder their falling there; yet
this was a hard case.” The statements of law by counsel in argument may be
left on one side, although Brian is quoted and mistaken for one of the
judges by Sir William Blackstone, in Scott v. Shepherd.

The principal authorities are the shooting cases, and, as shooting is an
extra-hazardous act, it would not be surprising if it should be held that
men do it at their peril in public places. The liability has been put on
the general ground of fault, however, wherever the line of necessary [104]
precaution may be drawn. In Weaver v. Ward, /1/ the defendant set up that
the plaintiff and he were skirmishing in a trainband, and that when
discharging his piece he wounded the plaintiff by accident and misfortune,
and against his own will. On demurrer, the court says that “no man shall
be excused of a trespass,… except it may be judged utterly without his
fault. As if a man by force take my hand and strike you, or if here the
defendant had said, that the plaintiff ran cross his piece when it was
discharging, or had set forth the case with the circumstances so as it had
appeared to the court that it had been inevitable, and that the defendant
had committed no negligence to give occasion to the hurt.” The later cases
simply follow Weaver v. Ward.

The quotations which were made above in favor of the strict doctrine from
Sir T. Raymond, in Bessey v. Olliot, and from Sir William Blackstone, in
Scott v. Shepherd, are both taken from dissenting opinions. In the latter
case it is pretty clear that the majority of the court considered that to
repel personal danger by instantaneously tossing away a squib thrown by
another upon one’s stall was not a trespass, although a new motion was
thereby imparted to the squib, and the plaintiff’s eye was put out in
consequence. The last case cited above, in stating the arguments for
absolute responsibility, was Leame v. Bray. /2/ The question under
discussion was whether the action (for running down the plaintiff) should
not have been case rather than trespass, the defendant founding his
objection to trespass on the ground that the injury happened through his
neglect, but was not done wilfully. There was therefore no question of
absolute responsibility for one’s acts [105] before the court, as
negligence was admitted; and the language used is all directed simply to
the proposition that the damage need not have been done intentionally.

In Wakeman v. Robinson, /1/another runaway case, there was evidence that
the defendant pulled the wrong rein, and that he ought to have kept a
straight course. The jury were instructed that, if the injury was
occasioned by an immediate act of the defendant, it was immaterial whether
the act was wilful or accidental. On motion for a new trial, Dallas, C. J.
said, “If the accident happened entirely without default on the part of
the defendant, or blame imputable to him, the action does not lie ….The
accident was clearly occasioned by the default of the defendant. The
weight of evidence was all that way. I am now called upon to grant a new
trial, contrary to the justice of the case, upon the ground, that the jury
were not called on to consider whether the accident was unavoidable, or
occasioned by the fault of the defendant. There can be no doubt that the
learned judge who presided would have taken the opinion of the jury on
that ground, if he had been requested so to do.” This language may have
been inapposite under the defendant’s plea (the general issue), but the
pleadings were not adverted to, and the doctrine is believed to be sound.

In America there have been several decisions to the point. In Brown v.
Kendall, /2/ Chief Justice Shaw settled the question for Massachusetts.
That was trespass for assault and battery, and it appeared that the
defendant, while trying to separate two fighting dogs, had raised his
stick over his shoulder in the act of striking, and had accidentally hit
the plaintiff in the eye, inflicting upon him a [106] severe injury. The
case was stronger for the plaintiff than if the defendant had been acting
in self-defence; but the court held that, although the defendant was bound
by no duty to separate the dogs, yet, if he was doing a lawful act, he was
not liable unless he was wanting in the care which men of ordinary
prudence would use under the circumstances, and that the burden was on the
plaintiff to prove the want of such care.

In such a matter no authority is more deserving of respect than that of
Chief Justice Shaw, for the strength of that great judge lay in an
accurate appreciation of the requirements of the community whose officer
he was. Some, indeed many, English judges could be named who have
surpassed him in accurate technical knowledge, but few have lived who were
his equals in their understanding of the grounds of public policy to which
all laws must ultimately be referred. It was this which made him, in the
language of the late Judge Curtis, the greatest magistrate which this
country has produced.

Brown v. Kendall has been followed in Connecticut, /1/ in a case where a
man fired a pistol, in lawful self-defence as he alleged, and hit a
bystander. The court was strongly of opinion that the defendant was not
answerable on the general principles of trespass, unless there was a
failure to use such care as was practicable under the circumstances. The
foundation of liability in trespass as well as case was said to be
negligence. The Supreme Court of the United States has given the sanction
of its approval to the same doctrine. /2/ The language of Harvey v. Dunlop
/3/ has been [107] quoted, and there is a case in Vermont
which tends in the same direction. /1/

Supposing it now to be conceded that the general notion upon which
liability to an action is founded is fault or blameworthiness in some
sense, the question arises, whether it is so in the sense of personal
moral shortcoming, as would practically result from Austin’s teaching. The
language of Rede, J., which has been quoted from the Year Book, gives a
sufficient answer. “In trespass the intent” (we may say more broadly, the
defendant’s state of mind) “cannot be construed.” Suppose that a defendant
were allowed to testify that, before acting, he considered carefully what
would be the conduct of a prudent man under the circumstances, and, having
formed the best judgment he could, acted accordingly. If the story was
believed, it would be conclusive against the defendant’s negligence judged
by a moral standard which would take his personal characteristics into
account. But supposing any such evidence to have got before the jury, it
is very clear that the court would say, Gentlemen, the question is not
whether the defendant thought his conduct was that of a prudent man, but
whether you think it was. /2/

Some middle point must be found between the horns of this dilemma.

[108 The standards of the law are standards of general application. The
law takes no account of the infinite varieties of temperament, intellect,
and education which make the internal character of a given act so
different in different men. It does not attempt to see men as God sees
them, for more than one sufficient reason. In the first place, the
impossibility of nicely measuring a man’s powers and limitations is far
clearer than that of ascertaining his knowledge of law, which has been
thought to account for what is called the presumption that every man knows
the law. But a more satisfactory explanation is, that, when men live in
society, a certain average of conduct, a sacrifice of individual
peculiarities going beyond a certain point, is necessary to the general
welfare. If, for instance, a man is born hasty and awkward, is always
having accidents and hurting himself or his neighbors, no doubt his
congenital defects will be allowed for in the courts of Heaven, but his
slips are no less troublesome to his neighbors than if they sprang from
guilty neglect. His neighbors accordingly require him, at his proper
peril, to come up to their standard, and the courts which they establish
decline to take his personal equation into account.

The rule that the law does, in general, determine liability by
blameworthiness, is subject to the limitation that minute differences of
character are not allowed for. The law considers, in other words, what
would be blameworthy in the average man, the man of ordinary intelligence
and prudence, and determines liability by that. If we fall below the level
in those gifts, it is our misfortune; so much as that we must have at our
peril, for the reasons just given. But he who is intelligent and prudent
does not act at his peril, in theory of law. On the contrary, it is [109]
only when he fails to exercise the foresight of which he is capable, or
exercises it with evil intent, that he is answerable for the consequences.

There are exceptions to the principle that every man is presumed to
possess ordinary capacity to avoid harm to his neighbors, which illustrate
the rule, and also the moral basis of liability in general. When a man has
a distinct defect of such a nature that all can recognize it as making
certain precautions impossible, he will not be held answerable for not
taking them. A blind man is not required to see at his peril; and although
he is, no doubt, bound to consider his infirmity in regulating his
actions, yet if he properly finds himself in a certain situation, the
neglect of precautions requiring eyesight would not prevent his recovering
for an injury to himself, and, it may be presumed, would not make him
liable for injuring another. So it is held that, in cases where he is the
plaintiff, an infant of very tender years is only bound to take the
precautions of which an infant is capable; the same principle may be
cautiously applied where he is defendant. /1/ Insanity is a more difficult
matter to deal with, and no general rule can be laid down about it. There
is no doubt that in many cases a man may be insane, and yet perfectly
capable of taking the precautions, and of being influenced by the motives,
which the circumstances demand. But if insanity of a pronounced type
exists, manifestly incapacitating the sufferer from complying with the
rule which he has broken, good sense would require it to be admitted as an
excuse.

Taking the qualification last established in connection with the general
proposition previously laid down, it will [110] now be assumed that, on
the one hand, the law presumes or requires a man to possess ordinary
capacity to avoid harming his neighbors, unless a clear and manifest
incapacity be shown; but that, on the other, it does not in general hold
him liable for unintentional injury, unless, possessing such capacity, he
might and ought to have foreseen the danger, or, in other words, unless a
man of ordinary intelligence and forethought would have been to blame for
acting as he did. The next question is, whether this vague test is all
that the law has to say upon the matter, and the same question in another
form, by whom this test is to be applied.

Notwithstanding the fact that the grounds of legal liability are moral to
the extent above explained, it must be borne in mind that law only works
within the sphere of the senses. If the external phenomena, the manifest
acts and omissions, are such as it requires, it is wholly indifferent to
the internal phenomena of conscience. A man may have as bad a heart as he
chooses, if his conduct is within the rules. In other words, the standards
of the law are external standards, and, however much it may take moral
considerations into account, it does so only for the purpose of drawing a
line between such bodily motions and rests as it permits, and such as it
does not. What the law really forbids, and the only thing it forbids, is
the act on the wrong side of the line, be that act blameworthy or
otherwise.

Again, any legal standard must, in theory, be one which would apply to all
men, not specially excepted, under the same circumstances. It is not
intended that the public force should fall upon an individual
accidentally, or at the whim of any body of men. The standard, that is,
[111] must be fixed. In practice, no doubt, one man may have to pay and
another may escape, according to the different feelings of different
juries. But this merely shows that the law does not perfectly accomplish
its ends. The theory or intention of the law is not that the feeling of
approbation or blame which a particular twelve may entertain should be the
criterion. They are supposed to leave their idiosyncrasies on one side,
and to represent the feeling of the community. The ideal average prudent
man, whose equivalent the jury is taken to be in many cases, and whose
culpability or innocence is the supposed test, is a constant, and his
conduct under given circumstances is theoretically always the same.

Finally, any legal standard must, in theory, be capable of being known.
When a man has to pay damages, he is supposed to have broken the law, and
he is further supposed to have known what the law was.

If, now, the ordinary liabilities in tort arise from failure to comply
with fixed and uniform standards of external conduct, which every man is
presumed and required to know, it is obvious that it ought to be possible,
sooner or later, to formulate these standards at least to some extent, and
that to do so must at last be the business of the court. It is equally
clear that the featureless generality, that the defendant was bound to use
such care as a prudent man would do under the circumstances, ought to be
continually giving place to the specific one, that he was bound to use
this or that precaution under these or those circumstances. The standard
which the defendant was bound to come up to was a standard of specific
acts or omissions, with reference to the specific circumstances in which
he found himself. If in the whole department of [112] unintentional wrongs
the courts arrived at no further utterance than the question of
negligence, and left every case, without rudder or compass, to the jury,
they would simply confess their inability to state a very large part of
the law which they required the defendant to know, and would assert, by
implication, that nothing could be learned by experience. But neither
courts nor legislatures have ever stopped at that point.

From the time of Alfred to the present day, statutes and decisions have
busied themselves with defining the precautions to be taken in certain
familiar cases; that is, with substituting for the vague test of the care
exercised by a prudent man, a precise one of specific acts or omissions.
The fundamental thought is still the same, that the way prescribed is that
in which prudent men are in the habit of acting, or else is one laid down
for cases where prudent men might otherwise be in doubt.

It will be observed that the existence of the external tests of liability
which will be mentioned, while it illustrates the tendency of the law of
tort to become more and more concrete by judicial decision and by statute,
does not interfere with the general doctrine maintained as to the grounds
of liability. The argument of this Lecture, although opposed to the
doctrine that a man acts or exerts force at his peril, is by no means
opposed to the doctrine that he does certain particular acts at his peril.
It is the coarseness, not the nature, of the standard which is objected
to. If, when the question of the defendant’s negligence is left to a jury,
negligence does not mean the actual state of the defendant’s mind, but a
failure to act as a prudent man of average intelligence would have done,
he is required to conform to an objective standard at his [113]
peril, even in that case. When a more exact and specific rule has been
arrived at, he must obey that rule at his peril to the same extent. But,
further, if the law is wholly a standard of external conduct, a man must
always comply with that standard at his peril.

Some examples of the process of specification will be useful. In LL.
Alfred, 36, /1/ providing for the case of a man’s staking himself on a
spear carried by another, we read, “Let this (liability) be if the point
be three fingers higher than the hindmost part of the shaft; if they be
both on a level,… be that without danger.”

The rule of the road and the sailing rules adopted by Congress from
England are modern examples of such statutes. By the former rule, the
question has been narrowed from the vague one, Was the party negligent? to
the precise one, Was he on the right or left of the road? To avoid a
possible misconception, it may be observed that, of course, this question
does not necessarily and under all circumstances decide that of liability;
a plaintiff may have been on the wrong side of the road, as he may have
been negligent, and yet the conduct of the defendant may have been
unjustifiable, and a ground of liability. /2/ So, no doubt, a defendant
could justify or excuse being on the wrong side, under some circumstances.
The difference between alleging that a defendant was on the wrong side of
the road, and that he was negligent, is the difference between an
allegation of facts requiring to be excused by a counter allegation of
further facts to prevent their being a ground of liability, and an
allegation which involves a conclusion of law, and denies in advance the
existence of an [114] excuse. Whether the former allegation ought
not to be enough, and whether the establishment of the fact ought not to
shift the burden of proof, are questions which belong to the theory of
pleading and evidence, and could be answered either way consistently with
analogy. I should have no difficulty in saying that the allegation of
facts which are ordinarily a ground of liability, and which would be so
unless excused, ought to be sufficient. But the forms of the law,
especially the forms of pleading, do not change with every change of its
substance, and a prudent lawyer would use the broader and safer phrase.

The same course of specification which has been illustrated from the
statute-book ought also to be taking place in the growth of judicial
decisions. That this should happen is in accordance with the past history
of the law. It has been suggested already that in the days of the assize
and jurata the court decided whether the facts constituted a ground of
liability in all ordinary cases. A question of negligence might, no doubt,
have gone to the jury. Common sense and common knowledge are as often
sufficient to determine whether proper care has been taken of an animal,
as they are to say whether A or B owns it. The cases which first arose
were not of a kind to suggest analysis, and negligence was used as a
proximately simple element for a long time before the need or possibility
of analysis was felt. Still, when an issue of this sort is found, the
dispute is rather what the acts or omissions of the defendant were than on
the standard of conduct. /1/ The [115] distinction between
the functions of court and jury does not come in question until the
parties differ as to the standard of conduct. Negligence, like ownership,
is a complex conception. Just as the latter imports the existence of
certain facts, and also the consequence (protection against all the world)
which the law attaches to those facts; the former imports the existence of
certain facts (conduct) and also the consequence (liability) which the law
attaches to those facts. In most cases the question is upon the facts, and
it is only occasionally that one arises on the consequence.

It will have been noticed how the judges pass on the defendant’s acts (on
grounds of fault and public policy) in the case of the thorns, and that in
Weaver v. Ward /1/it is said that the facts constituting an excuse, and
showing that the defendant was free from negligence, should have been
spread upon the record, in order that the court might judge. A similar
requirement was laid down with regard to the defence of probable cause in
an action for malicious prosecution. /2/ And to this day the question of
probable cause is always passed on by the court. Later evidence will be
found in what follows.

There is, however, an important consideration, which has not yet been
adverted to. It is undoubtedly possible that those who have the making of
the law should deem it wise to put the mark higher in some cases than the
point established by common practice at which blameworthiness begins. For
instance, in Morris v. Platt, /2/ the court, while declaring in the
strongest terms that, in general, [116] negligence is the
foundation of liability for accidental trespasses, nevertheless hints
that, if a decision of the point were necessary, it might hold a defendant
to a stricter rule where the damage was caused by a pistol, in view of the
danger to the public of the growing habit of carrying deadly weapons.
Again, it might well seem that to enter a man’s house for the purpose of
carrying a present, or inquiring after his health when he was ill, was a
harmless and rather praiseworthy act, although crossing the owner’s
boundary was intentional. It is not supposed that an action would lie at
the present day for such a cause, unless the defendant had been forbidden
the house. Yet in the time of Henry VIII. it was said to be actionable if
without license, “for then under that color my enemy might be in my house
and kill me.” /1/ There is a clear case where public policy establishes a
standard of overt acts without regard to fault in any sense. In like
manner, policy established exceptions to the general prohibition against
entering another’s premises, as in the instance put by Chief Justice Choke
in the Year Book, of a tree being blown over upon them, or when the
highway became impassable, or for the purpose of keeping the peace. /2/

Another example may perhaps be found in the shape which has been given in
modern times to the liability for animals, and in the derivative principle
of Rylands v. Fletcher, /3/ that when a person brings on his lands, and
collects and keeps there, anything likely to do mischief if it escapes, he
must keep it in at his peril; and, if he does not do so, is prima facie
answerable for all the [117] damage which is the natural consequence of
its escape. Cases of this sort do not stand on the notion that it is wrong
to keep cattle, or to have a reservoir of water, as might have been
thought with more plausibility when fierce and useless animals only were
in question. /1/ It may even be very much for the public good that the
dangerous accumulation should be made (a consideration which might
influence the decision in some instances, and differently in different
jurisdictions); but as there is a limit to the nicety of inquiry which is
possible in a trial, it may be considered that the safest way to secure
care is to throw the risk upon the person who decides what precautions
shall be taken. The liability for trespasses of cattle seems to lie on the
boundary line between rules based on policy irrespective of fault, and
requirements intended to formulate the conduct of a prudent man.

It has been shown in the first Lecture how this liability for cattle arose
in the early law, and how far the influence of early notions might be
traced in the law of today, Subject to what is there said, it is evident
that the early discussions turn on the general consideration whether the
owner is or is not to blame. /2/ But they do not stop there: they go on to
take practical distinctions, based on common experience. Thus, when the
defendant chased sheep out of his land with a dog, and as soon as the
sheep were out called in his dog, but the dog pursued them into adjoining
land, the chasing of the sheep beyond the defendant’s line was held no
trespass, because “the nature of a dog is such that he cannot be ruled
suddenly.” /3/

[118]
It was lawful in ploughing to turn the horses on adjoining land, and if
while so turning the beasts took a mouthful of grass, or subverted the
soil with the plough, against the will of the driver, he had a good
justification, because the law will recognize that a man cannot at every
instant govern his cattle as he will. /1/ So it was said that, if a man be
driving cattle through a town, and one of them goes into another man’s
house, and he follows him, trespass does not lie for this. /2/ So it was
said by Doderidge, J., in the same case, that if deer come into my land
out of the forest, and I chase them with dogs, it is excuse enough for me
to wind my horn to recall the dogs, because by this the warden of the
forest has notice that a deer is being chased. /3/

The very case of Mason v. Keeling, /4/ which is referred to in the first
Lecture for its echo of primitive notions, shows that the working rules of
the law had long been founded on good sense. With regard to animals not
then treated as property, which in the main were the wilder animals, the
law was settled that, “if they are of a tame nature, there must be notice
of the ill quality; and the law takes notice, that a dog is not of a
fierce nature, but rather the contrary.” /5/ If the animals “are such as
are naturally [119] mischievous in their kind, he shall answer
for hurt done by them, without any notice.” /1/ The latter principle has
been applied to the case of a bear, /2/ and amply accounts for the
liability of the owner of such animals as horses and oxen in respect of
trespasses upon land, although, as has been seen, it was at one time
thought to stand upon his ownership. It is said to be the universal nature
of cattle to stray, and, when straying in cultivated land, to do damage by
trampling down and eating the crops, whereas a dog does no harm. It is
also said to be usual and easy to restrain them. /3/ If, as has been
suggested, the historical origin of the rule was different, it does not
matter.

Following the same line of thought, the owner of cattle is not held
absolutely answerable for all damage which they may do the person.
According to Lord Holt in the alcove opinion, these animals, “which are
not so familiar to mankind” as dogs, “the owner ought to confine, and take
all reasonable caution that they do no mischief…. But… if the owner
puts a horse or an ox to grass in his field, which is adjoining to the
highway, and the horse or the ox breaks the hedge and runs into the
highway, and kicks or gores some passenger, an action will not lie against
the owner; otherwise, if he had notice that they had done such a thing
before.”

[120]
Perhaps the most striking authority for the position that the judge’s
duties are not at an end when the question of negligence is reached, is
shown by the discussions concerning the law of bailment. Consider the
judgment in Coggs v. Bernard, /1/ the treatises of Sir William Jones and
Story, and the chapter of Kent upon the subject. They are so many attempts
to state the duty of the bailee specifically, according to the nature of
the bailment and of the object bailed. Those attempts, to be sure, were
not successful, partly because they were attempts to engraft upon the
native stock a branch of the Roman law which was too large to survive the
process, but more especially because the distinctions attempted were
purely qualitative, and were therefore useless when dealing with a jury.
/2/ To instruct a jury that they must find the defendant guilty of gross
negligence before he can be charged, is open to the reproach that for such
a body the word “gross” is only a vituperative epithet. But it would not
be so with a judge sitting in admiralty without a jury. The Roman law and
the Supreme Court of the United States agree that the word means
something. /3/ Successful or not, it is enough for the present argument
that the attempt has been made.

The principles of substantive law which have been established by the
courts are believed to have been somewhat obscured by having presented
themselves oftenest in the form of rulings upon the sufficiency of
evidence. When a judge rules that there is no evidence of negligence, he
does something more than is embraced in an ordinary ruling that there is
no evidence of a fact. He rules that [121] acts or omissions
proved or in question do not constitute a ground of legal liability, and
in this way the law is gradually enriching itself from daily life, as it
should. Thus, in Crafton v. Metropolitan Railway Co., /1/ the plaintiff
slipped on the defendant’s stairs and was severely hurt. The cause of his
slipping was that the brass nosing of the stairs had been worn smooth by
travel over it, and a builder testified that in his opinion the staircase
was unsafe by reason of this circumstance and the absence of a hand-rail.
There was nothing to contradict this except that great numbers of persons
had passed over the stairs and that no accident had happened there, and
the plaintiff had a verdict. The court set the verdict aside, and ordered
a nonsuit. The ruling was in form that there was no evidence of negligence
to go to the jury; but this was obviously equivalent to saying, and did in
fact mean, that the railroad company had done all that it was bound to do
in maintaining such a staircase as was proved by the plaintiff. A hundred
other equally concrete instances will be found in the text-books.

On the other hand, if the court should rule that certain acts or omissions
coupled with damage were conclusive evidence of negligence unless
explained, it would, in substance and in truth, rule that such acts or
omissions were a ground of liability, /2/ or prevented a recovery, as the
case might be. Thus it is said to be actionable negligence to let a house
for a dwelling knowing it to be so infected with small-pox as to be
dangerous to health, and concealing the knowledge. /3/ To explain the acts
or omissions in such a [122] case would be to prove different conduct
from that ruled upon, or to show that they were not, juridically speaking,
the cause of the damage complained of. The ruling assumes, for the
purposes of the ruling, that the facts in evidence are all the facts.

The cases which have raised difficulties needing explanation are those in
which the court has ruled that there was prima facie evidence of
negligence, or some evidence of negligence to go to the jury.

Many have noticed the confusion of thought implied in speaking of such
cases as presenting mixed questions of law and fact. No doubt, as has been
said above, the averment that the defendant has been guilty of negligence
is a complex one: first, that he has done or omitted certain things;
second, that his alleged conduct does not come up to the legal standard.
And so long as the controversy is simply on the first half, the whole
complex averment is plain matter for the jury without special
instructions, just as a question of ownership would be where the only
dispute was as to the fact upon which the legal conclusion was founded.
/1/ But when a controversy arises on the second half, the question whether
the court or the jury ought to judge of the defendant’s conduct is wholly
unaffected by the accident, whether there is or is not also a dispute as
to what that conduct was. If there is such a dispute, it is entirely
possible to give a series of hypothetical instructions adapted to every
state of facts which it is open to the jury to find. If there is no such
dispute, the court may still take their opinion as to the standard. The
problem is [123] to explain the relative functions of court
and jury with regard to the latter.

When a case arises in which the standard of conduct, pure and simple, is
submitted to the jury, the explanation is plain. It is that the court, not
entertaining any clear views of public policy applicable to the matter,
derives the rule to be applied from daily experience, as it has been
agreed that the great body of the law of tort has been derived. But the
court further feels that it is not itself possessed of sufficient
practical experience to lay down the rule intelligently. It conceives that
twelve men taken from the practical part of the community can aid its
judgment. /1/ Therefore it aids its conscience by taking the opinion of
the jury.

But supposing a state of facts often repeated in practice, is it to be
imagined that the court is to go on leaving the standard to the jury
forever? Is it not manifest, on the contrary, that if the jury is, on the
whole, as fair a tribunal as it is represented to be, the lesson which can
be got from that source will be learned? Either the court will find that
the fair teaching of experience is that the conduct complained of usually
is or is not blameworthy, and therefore, unless explained, is or is not a
ground of liability; or it will find the jury oscillating to and fro, and
will see the necessity of making up its mind for itself. There is no
reason why any other such question should not be settled, as well as that
of liability for stairs with smooth strips of brass upon their edges. The
exceptions would mainly be found where the standard was rapidly changing,
as, for instance, in some questions of medical treatment. /2/

[124]
If this be the proper conclusion in plain cases, further consequences
ensue. Facts do not often exactly repeat themselves in practice; but cases
with comparatively small variations from each other do. A judge who has
long sat at nisi prius ought gradually to acquire a fund of experience
which enables him to represent the common sense of the community in
ordinary instances far better than an average jury. He should be able to
lead and to instruct them in detail, even where he thinks it desirable, on
the whole, to take their opinion. Furthermore, the sphere in which he is
able to rule without taking their opinion at all should be continually
growing.

It has often been said, that negligence is pure matter of fact, or that,
after the court has declared the evidence to be such that negligence may
be inferred from it, the jury are always to decide whether the inference
shall be drawn. /1/ But it is believed that the courts, when they lay down
this broad proposition, are thinking of cases where the conduct to be
passed upon is not proved directly, and the main or only question is what
that conduct was, not what standard shall be applied to it after it is
established.

Most cases which go to the jury on a ruling that there is evidence from
which they may find negligence, do not go to them principally on account
of a doubt as to the standard, but of a doubt as to the conduct. Take the
case where the fact in proof is an event such as the dropping of a brick
from a railway bridge over a highway upon the plaintiff, the fact must be
inferred that the dropping was [125] due, not to a sudden
operation of weather, but to a gradual falling out of repair which it was
physically possible for the defendant to have prevented, before there can
be any question as to the standard of conduct. /1/

So, in the case of a barrel falling from a warehouse window, it must be
found that the defendant or his servants were in charge of it, before any
question of standard can arise. /2/ It will be seen that in each of these
well-known cases the court assumed a rule which would make the defendant
liable if his conduct was such as the evidence tended to prove. When there
is no question as to the conduct established by the evidence, as in the
case of a collision between two trains belonging to the same company, the
jury have, sometimes at least, been told in effect that, if they believed
the evidence, the defendant was liable. /3/

The principal argument that is urged in favor of the view that a more
extended function belongs to the jury as matter of right, is the necessity
of continually conforming our standards to experience. No doubt the
general foundation of legal liability in blameworthiness, as determined by
the existing average standards of the community, should always be kept in
mind, for the purpose of keeping such concrete rules as from time to time
may be laid down conformable to daily life. No doubt this conformity is
the practical justification for requiring a man to know the civil law, as
the fact that crimes are also generally sins is one of the practical
justifications for requiring a man to know the criminal law. But these
considerations only lead to [126] the conclusion that precedents should be
overruled when they become inconsistent with present conditions; and this
has generally happened, except with regard to the construction of deeds
and wills. On the other hand, it is very desirable to know as nearly as we
can the standard by which we shall be judged at a given moment, and,
moreover, the standards for a very large part of human conduct do not vary
from century to century.

The considerations urged in this Lecture are of peculiar importance in
this country, or at least in States where the law is as it stands in
Massachusetts. In England, the judges at nisi prius express their opinions
freely on the value and weight of the evidence, and the judges in banc, by
consent of parties, constantly draw inferences of fact. Hence nice
distinctions as to the province of court and jury are not of the first
necessity. But when judges are forbidden by statute to charge the jury
with respect to matters of fact, and when the court in banc will never
hear a case calling for inferences of fact, it becomes of vital importance
to understand that, when standards of conduct are left to the jury, it is
a temporary surrender of a judicial function which may be resumed at any
moment in any case when the court feels competent to do so. Were this not
so, the almost universal acceptance of the first proposition in this
Lecture, that the general foundation of liability for unintentional wrongs
is conduct different from that of a prudent man under the circumstances,
would leave all our rights and duties throughout a great part of the law
to the necessarily more or less accidental feelings of a jury.

It is perfectly consistent with the views maintained in this Lecture that
the courts have been very slow to withdraw questions of negligence from
the jury, without distinguishing [127] nicely whether the
doubt concerned the facts or the standard to be applied. Legal, like
natural divisions, however clear in their general outline, will be found
on exact scrutiny to end in a penumbra or debatable land. This is the
region of the jury, and only cases falling on this doubtful border are
likely to be carried far in court. Still, the tendency of the law must
always be to narrow the field of uncertainty. That is what analogy, as
well as the decisions on this very subject, would lead us to expect.

The growth of the law is very apt to take place in this way. Two widely
different cases suggest a general distinction, which is a clear one when
stated broadly. But as new eases cluster around the opposite poles, and
begin to approach each other, the distinction becomes more difficult to
trace; the determinations are made one way or the other on a very slight
preponderance of feeling, rather than of articulate reason; and at last a
mathematical line is arrived at by the contact of contrary decisions,
which is so far arbitrary that it might equally well have been drawn a
little farther to the one side or to the other, but which must have been
drawn somewhere in the neighborhood of where it falls. /1/

In this way exact distinctions have been worked out upon questions in
which the elements to be considered are few. For instance, what is a
reasonable time for presenting negotiable paper, or what is a difference
in kind and what a difference only in quality, or the rule against
perpetuities.

An example of the approach of decisions towards each other from the
opposite poles, and of the function of the jury midway, is to be found in
the Massachusetts adjudications, [128] that, if a child of
two years and four months is unnecessarily sent unattended across and down
a street in a large city, he cannot recover for a negligent injury; /1/
that to allow a boy of eight to be abroad alone is not necessarily
negligent; /2/ and that the effect of permitting a boy of ten to be abroad
after dark is for the jury; /3/ a coupled with the statement, which may be
ventured on without authority, that such a permission to a young man of
twenty possessed of common intelligence has no effect whatever.

Take again the law of ancient lights in England. An obstruction to be
actionable must be substantial. Under ordinary circumstances the erection
of a structure a hundred yards off, and one foot above the ground, would
not be actionable. One within a foot of the window, and covering it, would
be, without any finding of a jury beyond these facts. In doubtful cases
midway, the question whether the interference was substantial has been
left to the jury. /4/ But as the elements are few and permanent, an
inclination has been shown to lay down a definite rule, that, in ordinary
cases, the building complained of must not be higher than the distance of
its base from the dominant windows. And although this attempt to work out
an exact line requires much caution, it is entirely philosophical in
spirit. /5/

The same principle applies to negligence. If the whole evidence in the
case was that a party, in full command of [129] senses and intellect,
stood on a railway track, looking at an approaching engine until it ran
him down, no judge would leave it to the jury to say whether the conduct
was prudent. If the whole evidence was that he attempted to cross a level
track, which was visible for half a mile each way, and on which no engine
was in sight, no court would allow a jury to find negligence. Between
these extremes are cases which would go to the jury. But it is obvious
that the limit of safety in such cases, supposing no further elements
present, could be determined to a foot by mathematical calculation.

The trouble with many cases of negligence is, that they are of a kind not
frequently recurring, so as to enable any given judge to profit by long
experience with juries to lay down rules, and that the elements are so
complex that courts are glad to leave the whole matter in a lump for the
jury’s determination.

I reserve the relation between negligent and other torts for the next
Lecture.

LECTURE IV. — FRAUD, MALICE, AND INTENT.—THE THEORY OF TORTS.

[130] The next subjects to be considered are fraud, malice, and intent. In
the discussion of unintentional wrongs, the greatest difficulty to be
overcome was found to be the doctrine that a man acts always at his peril.
In what follows, on the other hand, the difficulty will be to prove that
actual wickedness of the kind described by the several words just
mentioned is not an element in the civil wrongs to which those words are
applied.

It has been shown, in dealing with the criminal law, that, when we call an
act malicious in common speech, we mean that harm to another person was
intended to come of it, and that such harm was desired for its own sake as
an end in itself. For the purposes of the criminal law, however, intent
alone was found to be important, and to have the same consequences as
intent with malevolence superadded. Pursuing the analysis, intent was
found to be made up of foresight of the harm as a consequence, coupled
with a desire to bring it about, the latter being conceived as the motive
for the act in question. Of these, again, foresight only seemed material.
As a last step, foresight was reduced to its lowest term, and it was
concluded that, subject to exceptions which were explained, the general
basis of criminal liability was knowledge, at the time of action, [131] of
facts from which common experience showed that certain harmful results
were likely to follow.

It remains to be seen whether a similar reduction is possible on the civil
side of the law, and whether thus fraudulent, malicious, intentional, and
negligent wrongs can be brought into a philosophically continuous series.

A word of preliminary explanation will be useful. It has been shown in the
Lecture just referred to that an act, although always importing intent, is
per se indifferent to the law. It is a willed, and therefore an intended
coordination of muscular contractions. But the intent necessarily imported
by the act ends there. And all muscular motions or co-ordinations of them
are harmless apart from concomitant circumstances, the presence of which
is not necessarily implied by the act itself. To strike out with the fist
is the same act, whether done in a desert or in a crowd.

The same considerations which have been urged to show that an act alone,
by itself, does not and ought not to impose either civil or criminal
liability, apply, at least frequently, to a series of acts, or to conduct,
although the series shows a further co-ordination and a further intent.
For instance, it is the same series of acts to utter a sentence falsely
stating that a certain barrel contains No. 1 Mackerel, whether the
sentence is uttered in the secrecy of the closet, or to another man in the
course of a bargain. There is, to be sure, in either case, the further
intent, beyond the co-ordination of muscles for a single sound, to allege
that a certain barrel has certain contents,—an intent necessarily
shown by the ordering of the words. But both the series of acts and the
intent are per se indifferent. They are innocent when spoken in solitude,
and [132] are only a ground of liability when certain concomitant
circumstances are shown.

The intent which is meant when spoken of as an element of legal liability
is an intent directed toward the harm complained of, or at least toward
harm. It is not necessary in every case to carry the analysis back to the
simple muscular contractions out of which a course of conduct is made up.
On the same principle that requires something more than an act followed by
damage to make a man liable, we constantly find ourselves at liberty to
assume a co-ordinated series of acts as a proximately simple element, per
se indifferent, in considering what further circumstances or facts must be
present before the conduct in question is at the actor’s peril. It will
save confusion and the need of repetition if this is borne in mind in the
following discussion.

The chief forms of liability in which fraud, malice, and intent are said
to be necessary elements, are deceit, slander and libel, malicious
prosecution, and conspiracy, to which, perhaps, may be added trover.

Deceit is a notion drawn from the moral world, and in its popular sense
distinctly imports wickedness. The doctrine of the common law with regard
to it is generally stated in terms which are only consistent with actual
guilt, and all actual guilty intent. It is said that a man is liable to an
action for deceit if he makes a false representation to another, knowing
it to be false, but intending that the other should believe and act upon
it, if the person addressed believes it, and is thereby persuaded to act
to his own harm. This is no doubt the typical case, and it is a case of
intentional moral wrong. Now, what is the party’s conduct here. It
consists in uttering certain words, [133] so ordered that the utterance of
them imports a knowledge of the meaning which they would convey if heard.
But that conduct with only that knowledge is neither moral nor immoral. Go
one step further, and add the knowledge of another’s presence within
hearing, still the act has no determinate character. The elements which
make it immoral are the knowledge that the statement is false, and the
intent that it shall be acted on.

The principal question then is, whether this intent can be reduced to the
same terms as it has been in other cases. There is no difficulty in the
answer. It is perfectly clear that the intent that a false representation
should be acted on would be conclusively established by proof that the
defendant knew that the other party intended to act upon it. If the
defendant foresaw the consequence of his acts, he is chargeable, whether
his motive was a desire to induce the other party to act, or simply an
unwillingness for private reasons to state the truth. If the defendant
knew a present fact (the other party’s intent), which, according to common
experience, made it likely that his act would have the harmful
consequence, he is chargeable, whether he in fact foresaw the consequence
or not.

In this matter the general conclusion follows from a single instance. For
the moment it is admitted that in one case knowledge of a present fact,
such as the other party’s intent to act on the false statement, dispenses
with proof of an intent to induce him to act upon it, it is admitted that
the lesser element is all that is necessary in the larger compound. For
intent embraces knowledge sufficing for foresight, as has been shown.
Hence, when you prove intent you prove knowledge, and intent may often
[134] be the easier to prove of the two. But when you prove knowledge you
do not prove intent.

It may be said, however, that intent is implied or presumed in such a case
as has been supposed. But this is only helping out a false theory by a
fiction. It is very much like saying that a consideration is presumed for
an instrument under seal; which is merely a way of reconciling the formal
theory that all contracts must have a consideration with the manifest fact
that sealed instruments do not require one. Whenever it is said that a
certain thing is essential to liability, but that it is conclusively
presumed from something else, there is always ground for suspicion that
the essential clement is to be found in that something else, and not in
what is said to be presumed from it.

With regard to the intent necessary to deceit, we need not stop with the
single instance which has been given. The law goes no farther than to
require proof either of the intent, or that the other party was justified
in inferring such intention. So that the whole meaning of the requirement
is, that the natural and manifest tendency of the representation, under
the known circumstances, must have been to induce the opinion that it was
made with a view to action, and so to induce action on the faith of it.
The standard of what is called intent is thus really an external standard
of conduct under the known circumstances, and the analysis of the criminal
law holds good here.

Nor is this all. The law pursuing its course of specification, as
explained in the last Lecture, decides what is the tendency of
representations in certain cases,—as, for instance, that a horse is
sound at the time of making a [135] sale; or, in
general, of any statement of fact which it is known the other party
intends to rely on. Beyond these scientific rules lies the vague realm of
the jury.

The other moral element in deceit is knowledge that the statement was
false. With this I am not strictly concerned, because all that is
necessary is accomplished when the elements of risk are reduced to action
and knowledge. But it will aid in the general object of showing that the
tendency of the law everywhere is to transcend moral and reach external
standards, if this knowledge of falsehood can be transmuted into a formula
not necessarily importing guilt, although, of course, generally
accompanied by it in fact. The moment we look critically at it, we find
the moral side shade away.

The question is, what known circumstances are enough throw the risk of a
statement upon him who makes it, if it induces another man to act, and it
turns out untrue. Now, it is evident that a man may take the risk of his
statement by express agreement, or by an implied one which the law reads
into his bargain. He may in legal language warrant the truth of it, and if
it is not true, the law treats it as a fraud, just as much when he makes
it fully believing it, as when he knows that it is untrue, and means to
deceive. If, in selling a horse, the seller warranted him to be only five
years old, and in fact he was thirteen, the seller could be sued for a
deceit at common law, although he thought the horse was only five. /1/ The
common-law liability for the truth of statements is, therefore, more
extensive than the sphere of actual moral fraud. But, again, it is enough
in general if a representation [136] is made recklessly,
without knowing whether it is true or false. Now what does “recklessly”
mean. It does not mean actual personal indifference to the truth of the
statement. It means only that the data for the statement were so far
insufficient that a prudent man could not have made it without leading to
the inference that he was indifferent. That is to say, repeating an
analysis which has been gone through with before, it means that the law,
applying a general objective standard, determines that, if a man makes his
statement on those data, he is liable, whatever was the state of his mind,
and although he individually may have been perfectly free from wickedness
in making it.

Hence similar reasoning to that which has been applied already to intent
may be applied to knowledge of falsity. Actual knowledge may often be
easier to prove than that the evidence was insufficient to warrant the
statement, and when proved it contains the lesser element. But as soon as
the lesser element is shown to be enough, it is shown that the law is
ready to apply an external or objective standard here also.

Courts of equity have laid down the doctrine in terms which are so wholly
irrespective of the actual moral condition of the defendant as to go to an
opposite extreme. It is said that “when a representation in a matter of
business is made by one man to another calculated to induce him to adapt
his conduct to it, it is perfectly immaterial whether the representation
is made knowing it to be untrue, or whether it is made believing it to be
true, if, in fact, it was untrue.” /1/

Perhaps the actual decisions could be reconciled on a [137] narrower
principle, but the rule just stated goes the length of saying that in
business matters a man makes every statement (of a kind likely to be acted
on) at his peril. This seems hardly justifiable in policy. The moral
starting point of liability in general should never be forgotten, and the
law cannot without disregarding it hold a man answerable for statements
based on facts which would have convinced a wise and prudent man of their
truth. The public advantage and necessity of freedom in imparting
information, which privileges even the slander of a third person, ought a
fortiori, it seems to me, to privilege statements made at the request of
the party who complains of them.

The common law, at any rate, preserves the reference to morality by making
fraud the ground on which it goes. It does not hold that a man always
speaks at his peril. But starting from the moral ground, it works out an
external standard of what would be fraudulent in the average prudent
member of the community, and requires every member at his peril to avoid
that. As in other cases, it is gradually accumulating precedents which
decide that certain statements under certain circumstances are at the
peril of the party who makes them.

The elements of deceit which throw the risk of his conduct upon a party
are these. First, making a statement of facts purporting to be serious.
Second, the known presence of another within hearing. Third, known facts
sufficient to warrant the expectation or suggest the probability that the
other party will act on the statement. (What facts are sufficient has been
specifically determined by the courts in some instances; in others, no
doubt, the question would go to the jury on the principles heretofore
explained.) Fourth, the [138] falsehood of the statement. This must be
known, or else the known evidence concerning the matter of the statement
must be such as would not warrant belief according to the ordinary course
of human experience. (On this point also the court may be found to lay
down specific rules in some cases. /1/)

I next take up the law of slander. It has often been said that malice is
one of the elements of liability, and the doctrine is commonly stated in
this way: that malice must exist, but that it is presumed by law from the
mere speaking of the words; that again you may rebut this presumption of
malice by showing that the words were spoken under circumstances which
made the communication privileged,—as, for instance, by a lawyer in
the necessary course of his argument, or by a person answering in good
faith to inquiries as to the character of a former servant,— and
then, it is said, the plaintiff may meet this defence in some cases by
showing that the words were spoken with actual malice.

All this sounds as if at least actual intent to cause the damage
complained of, if not malevolence, were at the bottom of this class of
wrongs. Yet it is not so. For although the use of the phrase “malice”
points as usual to an original moral standard, the rule that it is
presumed upon proof of speaking certain words is equivalent to saying that
the overt conduct of speaking those words may be actionable whether the
consequence of damage to the plaintiff was intended or not. And this fails
in with the general theory, because the manifest tendency of slanderous
words is to harm the person of whom they are spoken. Again, the real
substance of the defence is not that the damage [139] was not intended,—that
would be no defence at all; but that, whether it was intended or not,—that
is, even if the defendant foresaw it and foresaw it with pleasure,—the
manifest facts and circumstances under which he said it were such that the
law considered the damage to the plaintiff of less importance than the
benefit of free speaking.

It is more difficult to apply the same analysis to the last stage of the
process, but perhaps it is not impossible. It is said that the plaintiff
may meet a case of privilege thus made out on the part of the defendant,
by proving actual malice, that is, actual intent to cause the damage
complained of. But how is this actual malice made out? It is by showing
that the defendant knew the statement which he made was false, or that his
untrue statements were grossly in excess of what the occasion required.
Now is it not very evident that the law is looking to a wholly different
matter from the defendant’s intent? The fact that the defendant foresaw
and foresaw with pleasure the damage to the plaintiff, is of no more
importance in this case than it would be where the communication was
privileged. The question again is wholly a question of knowledge, or other
external standard. And what makes even knowledge important? It is that the
reason for which a man is allowed in the other instances to make false
charges against his neighbors is wanting. It is for the public interest
that people should be free to give the best information they can under
certain circumstances without fear, but there is no public benefit in
having lies told at any time; and when a charge is known to be false, or
is in excess of what is required by the occasion, it is not necessary to
make that charge in order to speak freely, and [140] therefore it falls
under the ordinary rule, that certain charges are made at the party’s
peril in case they turn out to be false, whether evil consequences were
intended or not. The defendant is liable, not because his intent was evil,
but because he made false charges without excuse.

It will be seen that the peril of conduct here begins farther back than
with deceit, as the tendency of slander is more universally harmful. There
must be some concomitant circumstances. There must at least be a human
being in existence whom the statement designates. There must be another
human being within hearing who understands the statement, and the
statement must be false. But it is arguable that the latter of these facts
need not be known, as certainly the falsity of the charge need not be, and
that a man must take the risk of even an idle statement being heard,
unless he made it under known circumstances of privilege. It would be no
great curtailment of freedom to deny a man immunity in attaching a charge
of crime to the name of his neighbor, even when he supposes himself alone.
But it does not seem clear that the law would go quite so far as that.

The next form of liability is comparatively insignificant. I mean the
action for malicious prosecution. A man may recover damages against
another for maliciously and without probable cause instituting a criminal,
or, in some cases, a civil prosecution against him upon a false charge.
The want of probable cause refers, of course, only to the state of the
defendant’s knowledge, not to his intent. It means the absence of probable
cause in the facts known to the defendant when he instituted the suit. But
the standard applied to the defendant’s consciousness is external to it.
The question is not whether he thought the [141] facts to constitute
probable cause, but whether the court thinks they did.

Then as to malice. The conduct of the defendant consists in instituting
proceedings on a charge which is in fact false, and which has not
prevailed. That is the root of the whole matter. If the charge was true,
or if the plaintiff has been convicted, even though he may be able now to
prove that he was wrongly convicted, the defendant is safe, however great
his malice, and however little ground he had for his charge.

Suppose, however, that the charge is false, and does not prevail. It may
readily be admitted that malice did originally mean a malevolent motive,
an actual intent to harm the plaintiff by making a false charge. The legal
remedy here, again, started from the moral basis, the occasion for it, no
doubt, being similar to that which gave rise to the old law of conspiracy,
that a man’s enemies would sometimes seek his destruction by setting the
criminal law in motion against him. As it was punishable to combine for
such a purpose, it was concluded, with some hesitation, that, when a
single individual wickedly attempted the same thing, he should be liable
on similar grounds. /1/ I must fully admit that there is weighty authority
to the effect that malice in its ordinary sense is to this day a distinct
fact to be proved and to be found by the jury.

But this view cannot be accepted without hesitation. It is admitted that,
on the one side, the existence of probable cause, believed in, is a
justification notwithstanding malice; /2/ that, on the other, “it is not
enough to show [142] that the case appeared sufficient to this
particular party, but it must be sufficient to induce a sober, sensible
and discreet person to act upon it, or it must fail as a justification for
the proceeding upon general grounds.” /1/ On the one side, malice alone
will not make a man liable for instituting a groundless prosecution; on
the other, his justification will depend, not on his opinion of the facts,
but on that of the court. When his actual moral condition is disregarded
to this extent, it is a little hard to believe that the existence of an
improper motive should be material. Yet that is what malice must mean in
this case, if it means anything. /2/ For the evil effects of a successful
indictment are of course intended by one who procures all other to be
indicted. I cannot but think that a jury would be told that knowledge or
belief that the charge was false at the time of making it was conclusive
evidence of malice. And if so, on grounds which need not be repeated,
malice is not the important thing, but the facts known to the defendant.

Nevertheless, as it is obviously treading on delicate ground to make it
actionable to set the regular processes of the law in motion, it is, of
course, entirely possible to say that the action shall be limited to those
cases where the charge was preferred from improper motives, at least if
the defendant thought that there was probable cause. Such a limitation
would stand almost alone in the law of civil liability. But the nature of
the wrong is peculiar, and, moreover, it is quite consistent with the
theory of liability here advanced that it should be confined in any given
instance to actual wrong-doing in a moral sense.

The only other cause of action in which the moral condition [143]
of the defendant’s consciousness might seem to be important is conspiracy.
The old action going by that name was much like malicious prosecution, and
no doubt was originally confined to cases where several persons had
conspired to indict another from malevolent motives. But in the modern
action on the case, where conspiracy is charged, the allegation as a rule
only means that two or more persons were so far co-operating in their acts
that the act of any one was the act of all. Generally speaking, the
liability depends not on the co-operation or conspiring, but on the
character of the acts done, supposing them all to be done by one man, or
irrespective of the question whether they were done by one or several.
There may be cases, to be sure, in which the result could not be
accomplished, or the offence could not ordinarily be proved, without a
combination of several; as, for instance, the removal of a teacher by a
school board. The conspiracy would not affect the case except in a
practical way, but the question would be raised whether, notwithstanding
the right of the board to remove, proof that they were actuated by
malevolence would not make a removal actionable. Policy, it might be said,
forbids going behind their judgment, but actual evil motives coupled with
the absence of grounds withdraw this protection, because policy, although
it does not require them to take the risk of being right, does require
that they should judge honestly on the merits. /1/

Other isolated instances like the last might, perhaps, be found in
different parts of the law, in which actual malevolence would affect a
man’s liability for his conduct. Again, in trover for the conversion of
another’s chattel, where the dominion exercised over it was of a slight
and ambiguous [144] nature, it has been said that the taking
must be “with the intent of exercising an ownership over the chattel
inconsistent with the real owner’s right of possession.” /1/ But this
seems to be no more than a faint shadow of the doctrine explained with
regard to larceny, and does not require any further or special discussion.
Trover is commonly understood to go, like larceny, on the plaintiff’s
being deprived of his property, although in practice every possessor has
the action, and, generally speaking, the shortest wrongful withholding of
possession is a conversion.

Be the exceptions more or less numerous, the general purpose of the law of
torts is to secure a man indemnity against certain forms of harm to
person, reputation, or estate, at the hands of his neighbors, not because
they are wrong, but because they are harms. The true explanation of the
reference of liability to a moral standard, in the sense which has been
explained, is not that it is for the purpose of improving men’s hearts,
but that it is to give a man a fair chance to avoid doing the harm before
he is held responsible for it. It is intended to reconcile the policy of
letting accidents lie where they fall, and the reasonable freedom of
others with the protection of the individual from injury.

But the law does not even seek to indemnify a man from all harms. An
unrestricted enjoyment of all his possibilities would interfere with other
equally important enjoyments on the part of his neighbors. There are
certain things which the law allows a man to do, notwithstanding the fact
that he foresees that harm to another will follow from them. He may charge
a man with crime if the charge is true. He may establish himself in
business where he foresees that [145] of his competition
will be to diminish the custom of another shopkeeper, perhaps to ruin him.
He may a building which cuts another off from a beautiful prospect, or he
may drain subterranean waters and thereby drain another’s well; and many
other cases might be put.

As any of these things may be done with foresight of their evil
consequences, it would seem that they might be done with intent, and even
with malevolent intent, to produce them. The whole argument of this
Lecture and the preceding tends to this conclusion. If the aim of
liability is simply to prevent or indemnify from harm so far as is
consistent with avoiding the extreme of making a man answer for accident,
when the law permits the harm to be knowingly inflicted it would be a
strong thing if the presence of malice made any difference in its
decisions. That might happen, to be sure, without affecting the general
views maintained here, but it is not to be expected, and the weight of
authority is against it.

As the law, on the one hand, allows certain harms to be inflicted
irrespective of the moral condition of him who inflicts them, so, at the
other extreme, it may on grounds of policy throw the absolute risk of
certain transactions on the person engaging in them, irrespective of
blameworthiness in any sense. Instances of this sort have been mentioned
in the last Lecture, /1/ and will be referred to again.

Most liabilities in tort lie between these two extremes, and are founded
on the infliction of harm which the defendant had a reasonable opportunity
to avoid at the time of the acts or omissions which were its proximate
cause. Rut as fast as specific rules are worked out in place of the [146]
vague reference to the conduct of the average man, they range themselves
alongside of other specific rules based on public policy, and the grounds
from which they spring cease to be manifest. So that, as will be seen
directly, rules which seem to lie outside of culpability in any sense have
sometimes been referred to remote fault, while others which started from
the general notion of negligence may with equal ease be referred to some
extrinsic ground of policy.

Apart from the extremes just mentioned, it is now easy to see how the
point at which a man’s conduct begins to be at his own peril is generally
fixed. When the principle is understood on which that point is determined
by the law of torts, we possess a common ground of classification, and a
key to the whole subject, so far as tradition has not swerved the law from
a consistent theory. It has been made pretty clear from what precedes,
that I find that ground in knowledge of circumstances accompanying an act
or conduct indifferent but for those circumstances.

But it is worth remarking, before that criterion is discussed, that a
possible common ground is reached at the preceding step in the descent
from malice through intent and foresight. Foresight is a possible common
denominator of wrongs at the two extremes of malice and negligence. The
purpose of the law is to prevent or secure a man indemnity from harm at
the hands of his neighbors, so far as consistent with other considerations
which have been mentioned, and excepting, of course, such harm as it
permits to be intentionally inflicted. When a man foresees that harm will
result from his conduct, the principle which exonerates him from accident
no longer applies, and he is liable. But, as has been shown, he is bound
to foresee [147] whatever a prudent and intelligent man
would have foreseen, and therefore he is liable for conduct from which
such a man would have foreseen that harm was liable to follow.

Accordingly, it would be possible to state all cases of negligence in
terms of imputed or presumed foresight. It would be possible even to press
the presumption further, applying the very inaccurate maxim, that every
man is presumed to intend the natural consequences of his own acts; and
this mode of expression will, in fact, be found to have been occasionally
used, /1/ more especially in the criminal law, where the notion of intent
has a stronger foothold. /2/ The latter fiction is more remote and less
philosophical than the former; but, after all, both are equally fictions.
Negligence is not foresight, but precisely the want of it; and if
foresight were presumed, the ground of the presumption, and therefore the
essential element, would be the knowledge of facts which made foresight
possible.

Taking knowledge, then, as the true starting-point, the next question is
how to determine the circumstances necessary to be known in any given case
in order to make a man liable for the consequences of his act. They must
be such as would have led a prudent man to perceive danger, although not
necessarily to foresee the specific harm. But this is a vague test. How is
it decided what those circumstances are? The answer must be, by
experience.

But there is one point which has been left ambiguous in the preceding
Lecture and here, and which must be touched upon. It has been assumed that
conduct which [148] the man of ordinary intelligence would
perceive to be dangerous under the circumstances, would be blameworthy if
pursued by him. It might not be so, however. Suppose that, acting under
the threats of twelve armed men, which put him in fear of his life, a man
enters another’s close and takes a horse. In such a case, he actually
contemplates and chooses harm to another as the consequence of his act.
Yet the act is neither blameworthy nor punishable. But it might be
actionable, and Rolle, C. J. ruled that it was so in Gilbert v. Stone. /1/
If this be law, it goes the full length of deciding that it is enough if
the defendant has had a chance to avoid inflicting the harm complained of.
And it may well be argued that, although he does wisely to ransom his life
as he best may, there is no reason why he should be allowed to
intentionally and permanently transfer his misfortunes to the shoulders of
his neighbors.

It cannot be inferred, from the mere circumstance that certain conduct is
made actionable, that therefore the law regards it as wrong, or seeks to
prevent it. Under our mill acts a man has to pay for flowing his
neighbor’s lands, in the same way that he has to pay in trover for
converting his neighbor’s goods. Yet the law approves and encourages the
flowing of lands for the erection of mills.

Moral predilections must not be allowed to influence our minds in settling
legal distinctions. If we accept the test of the liability alone, how do
we distinguish between trover and the mill acts? Or between conduct which
is prohibited, and that which is merely taxed? The only distinction which
I can see is in the difference of the collateral consequences attached to
the two classes of conduct. In the one, the maxim in pari delicto potior
est [149]
conditio defendentis, and the invalidity of contracts contemplating it,
show that the conduct is outside the protection of the law. In the other,
it is otherwise. /1/ This opinion is confirmed by the fact, that almost
the only cases in which the distinction between prohibition and taxation
comes up concern the application of these maxims.

But if this be true, liability to an action does not necessarily import
wrong-doing. And this may be admitted without at all impairing the force
of the argument in the foregoing Lecture, which only requires that people
should not be made to pay for accidents which they could not have avoided.

It is doubtful, however, whether the ruling of Chief Justice Rolle would
now be followed. The squib case, Scott v. Shepherd, and the language of
some text-books, are more or less opposed to it. /2/ If the latter view is
law, then an act must in general not only be dangerous, but one which
would be blameworthy on the part of the average man, in order to make the
actor liable. But, aside from such exceptional cases as Gilbert v. Stone,
the two tests agree, and the difference need not be considered in what
follows.

I therefore repeat, that experience is the test by which it is decided
whether the degree of danger attending given conduct under certain known
circumstances is sufficient to throw the risk upon the party pursuing it.

For instance, experience shows that a good many guns supposed to be
unloaded go off and hurt people. The ordinarily intelligent and prudent
member of the community [150] would foresee the possibility of danger from
pointing a gun which he had not inspected into a crowd, and pulling the
trigger, although it was said to be unloaded. Hence, it may very properly
be held that a man who does such a thing does it at his peril, and that,
if damage ensues, he is answerable for it. The co-ordinated acts necessary
to point a gun and pull a trigger, and the intent and knowledge shown by
the co-ordination of those acts, are all consistent with entire
blamelessness. They threaten harm to no one without further facts. But the
one additional circumstance of a man in the line and within range of the
piece makes the conduct manifestly dangerous to any one who knows the
fact. There is no longer any need to refer to the prudent man, or general
experience. The facts have taught their lesson, and have generated a
concrete and external rule of liability. He who snaps a cap upon a gun
pointed in the direction of another person, known by him to be present, is
answerable for the consequences.

The question what a prudent man would do under given circumstances is then
equivalent to the question what are the teachings of experience as to the
dangerous character of this or that conduct under these or those
circumstances; and as the teachings of experience are matters of fact, it
is easy to see why the jury should be consulted with regard to them. They
are, however, facts of a special and peculiar function. Their only bearing
is on the question, what ought to have been done or omitted under the
circumstances of the case, not on what was done. Their function is to
suggest a rule of conduct.

Sometimes courts are induced to lay down rules by facts of a more specific
nature; as that the legislature passed a certain statute, and that the
case at bar is within [151] the fair meaning of its words; or that the
practice of a specially interested class, or of the public at large, has
generated a rule of conduct outside the law which it is desirable that the
courts should recognize and enforce. These are matters of fact, and have
sometimes been pleaded as such. But as their only importance is, that, if
believed, they will induce the judges to lay down a rule of conduct, or in
other words a rule of law, suggested by them, their tendency in most
instances is to disappear as fast as the rules suggested by them become
settled. /1/ While the facts are uncertain, as they are still only motives
for decision upon the law,—grounds for legislation, so to speak,—the
judges may ascertain them in any way which satisfies their conscience.
Thus, courts recognize the statutes of the jurisdiction judicially,
although the laws of other jurisdictions, with doubtful wisdom, are left
to the jury. /2/ They may take judicial cognizance of a custom of
merchants. /3/ In former days, at least, they might inquire about it in
pais after a demurrer. /4/ They may act on the statement of a special
jury, as in the time of Lord Mansfield and his successors, or upon the
finding of a common jury based on the testimony of witnesses, as is the
practice to-day in this country. But many instances will be found the
text-books which show that, when the facts are ascertained, they soon
cease to be referred to, and give place to a rule of law.

[152] The same transition is noticeable with regard to the teachings of
experience. There are many cases, no doubt, in which the court would lean
for aid upon a jury; but there are also many in which the teaching has
been formulated in specific rules. These rules will be found to vary
considerably with regard to the number of concomitant circumstances
necessary to throw the peril of conduct otherwise indifferent on the
actor. As the circumstances become more numerous and complex, the tendency
to cut the knot with the jury becomes greater. It will be useful to follow
a line of cases up from the simple to the more complicated, by way of
illustration. The difficulty of distinguishing rules based on other
grounds of policy from those which have been worked out in the field of
negligence, will be particularly noticed.

In all these cases it will be found that there has been a voluntary act on
the part of the person to be charged. The reason for this requirement was
shown in the foregoing Lecture. Unnecessary though it is for the defendant
to have intended or foreseen the evil which he has caused, it is necessary
that he should have chosen the conduct which led to it. But it has also
been shown that a voluntary act is not enough, and that even a
co-ordinated series of acts or conduct is often not enough by itself. But
the co-ordination of a series of acts shows a further intent than is
necessarily manifested by any single act, and sometimes proves with almost
equal certainty the knowledge of one or more concomitant circumstances.
And there are cases where conduct with only the intent and knowledge thus
necessarily implied is sufficient to throw the risk of it on the actor.

For instance, when a man does the series of acts called [153] walking, it
is assumed for all purposes of responsibility that he knows the earth is
under his feet. The conduct per se is indifferent, to be sure. A man may
go through the motions of walking without legal peril, if he chooses to
practise on a private treadmill; but if he goes through the same motions
on the surface of the earth, it cannot be doubted that he knows that the
earth is there. With that knowledge, he acts at his peril in certain
respects. If he crosses his neighbor’s boundary, he is a trespasser. The
reasons for this strict rule have been partially discussed in the last
Lecture. Possibly there is more of history or of past or present notions
of policy its explanation than is there suggested, and at any rate I do
not care to justify the rule. But it is intelligible. A man who walks
knows that he is moving over the surface of the earth, he knows that he is
surrounded by private estates which he has no right to enter, and he knows
that his motion, unless properly guided, will carry him into those
estates. He is thus warned, and the burden of his conduct is thrown upon
himself.

But the act of walking does not throw the peril of all possible
consequences upon him. He may run a man down in the street, but he is not
liable for that unless he does it negligently. Confused as the law is with
cross-lights of tradition, and hard as we may find it to arrive at
perfectly satisfactory general theory, it does distinguish in a pretty
sensible way, according to the nature and degree of the different perils
incident to a given situation.

From the simple case of walking we may proceed to the more complex cases
of dealings with tangible objects of property. It may be said that,
generally speaking, a man meddles with such things at his own risk. It
does not [154] matter how honestly he may believe that they belong to
himself, or are free to the public, or that he has a license from the
owner, or that the case is one in which the law has limited the rights of
ownership; he takes the chance of how the fact may turn out, and if the
fact is otherwise than as he supposes, he must answer for his conduct. As
has been already suggested, he knows that he is exercising more or less
dominion over property, or that he is injuring it; he must make good his
right if it is challenged.

Whether this strict rule is based on the common grounds of liability, or
upon some special consideration of past or present policy, policy has set
some limits to it, as was mentioned in the foregoing Lecture.

Another case of conduct which is at the risk of the party without further
knowledge than it necessarily imports, is the keeping of a tiger or bear,
or other animal of a species commonly known to be ferocious. If such an
animal escapes and does damage, the owner is liable simply on proof that
he kept it. In this instance the comparative remoteness of the moment of
choice in the line of causation from the effect complained of, will be
particularly noticed. Ordinary cases of liability arise out of a choice
which was the proximate cause of the harm upon which the action is
founded. But here there is usually no question of negligence in guarding
the beast. It is enough in most, if not in all cases, that the owner has
chosen to keep it. Experience has shown that tigers and bears are alert to
find means of escape, and that, if they escape, they are very certain to
do harm of a serious nature. The possibility of a great danger has the
same effect as the probability of a less one, and the law throws the risk
of [155]
the venture on the person who introduces the peril into the community.

This remoteness of the opportunity of choice goes far to show that this
risk is thrown upon the owner for other reasons than the ordinary one of
imprudent conduct. It has been suggested that the liability stood upon
remote inadvertence. /1/ But the law does not forbid a man to keep a
menagerie, or deem it in any way blameworthy. It has applied nearly as
strict a rule to dealings which are even more clearly beneficial to the
community than a show of wild beasts.

This seems to be one of those cases where the ground of liability is to be
sought in policy coupled with tradition, rather than in any form of
blameworthiness, or the existence of such a chance to avoid doing the harm
as a man is usually allowed. But the fact that remote inadvertence has
been suggested for an explanation illustrates what has been said about the
difficulty of deciding whether a given rule is founded on special grounds,
or has been worked out within the sphere of negligence, when once a
special rule has been laid down.

It is further to be noticed that there is no question of the defendant’s
knowledge of the nature of tigers, although without that knowledge he
cannot be said to have intelligently chosen to subject the community to
danger. Here again even in the domain of knowledge the law applies its
principle of averages. The fact that tigers and bears are dangerous is so
generally known, that a man who keeps them is presumed to know their
peculiarities. In other words, he does actually know that he has an animal
with certain teeth, claws, and so forth, and he must find out the [156]
rest of what an average member of the community would know, at his peril.

What is true as to damages in general done by ferocious wild beasts is
true as to a particular class of damages done by domestic cattle, namely,
trespasses upon another’s land. This has been dealt with in former
Lectures, and it is therefore needless to do more than to recall it here,
and to call attention to the distinction based on experience and policy
between damage which is and that which is not of a kind to be expected.
Cattle generally stray and damage cultivated land when they get upon it.
They only exceptionally hurt human beings.

I need not recur to the possible historical connection of either of these
last forms of liability with the noxoe deditio, because, whether that
origin is made out or not, the policy of the rule has been accepted as
sound, and carried further in England within the last few years by the
doctrine that a man who brings upon his land and keeps there anything
likely to do mischief if it escape, must keep it in at his peril. /1/ The
strictness of this principle will vary in different jurisdictions, as the
balance varies between the advantages to the public and the dangers to
individuals from the conduct in question. Danger of harm to others is not
the only thing to be considered, as has been said already. The law allows
some harms to be intentionally inflicted, and a fortiori some risks to be
intentionally run. In some Western States a man is not required to keep
his cattle fenced in. Some courts have refused to follow Rylands v.
Fletcher. /2/ On the other hand, the principle has been applied to
artificial [157] reservoirs of water, to cesspools, to
accumulations of snow and ice upon a building by reason of the form of its
roof, and to party walls. /1/

In these cases, as in that of ferocious animals, it is no excuse that the
defendant did not know, and could not have found out, the weak point from
which the dangerous object escaped. The period of choice was further back,
and, although he was not to blame, he was bound at his peril to know that
the object was a continual threat to his neighbors, and that is enough to
throw the risk of the business on him.

I now pass to cases one degree more complex than those so far considered.
In these there must be another concomitant circumstance known to the party
in addition to those of which the knowledge is necessarily or practically
proved by his conduct. The cases which naturally suggest themselves again
concern animals. Experience as interpreted by the English law has shown
that dogs, rams, and bulls are in general of a tame and mild nature, and
that, if any one of them does by chance exhibit a tendency to bite, butt,
or gore, it is an exceptional phenomenon. Hence it is not the law that a
man keeps dogs, rams, bulls, and other like tame animals at his peril as
to the personal damages which they may inflict, unless he knows or has
notice that the particular animal kept by him has the abnormal tendency
which they do sometimes show. The law has, however, been brought a little
nearer to actual experience by statute in many jurisdictions.

Now let us go one step farther still. A man keeps an unbroken and unruly
horse, knowing it to be so. That is not enough to throw the risk of its
behavior on him. The [158] tendency of the known wildness is not
dangerous generally, but only under particular circumstances. Add to
keeping, the attempt to break the horse; still no danger to the public is
disclosed. But if the place where the owner tries to break it is a crowded
thoroughfare, the owner knows an additional circumstance which, according
to common experience, makes this conduct dangerous, and therefore must
take the risk of what harm may be done. /1/ On the other hand, if a man
who was a good rider bought a horse with no appearance of vice and mounted
it to ride home, there would be no such apparent danger as to make him
answerable if the horse became unruly and did damage. /2/ Experience has
measured the probabilities and draws the line between the two cases.

Whatever may be the true explanation of the rule applied to keeping
tigers, or the principle of Rylands v. Fletcher, in the last cases we have
entered the sphere of negligence, and, if we take a case lying somewhere
between the two just stated, and add somewhat to the complexity of the
circumstances, we shall find that both conduct and standard would probably
be left without much discrimination to the jury, on the broad issue
whether the defendant had acted as a prudent man would have done under the
circumstances.

As to wrongs called malicious or intentional it is not necessary to
mention the different classes a second time, and to find them a place in
this series. As has been seen, they vary in the number of circumstances
which must be known. Slander is conduct which is very generally at the
risk of [159] the speaker, because, as charges of the kind with which it
deals are manifestly detrimental, the questions which practically arise
for the most part concern the defence of truth or privilege. Deceit
requires more, but still simple facts. Statements do not threaten the harm
in question unless they are made under such circumstances as to naturally
lead to action, and are made on insufficient grounds.

It is not, however, without significance, that certain wrongs are
described in language importing intent. The harm in such cases is most
frequently done intentionally, if intent to cause a certain harm is shown,
there need to prove knowledge of facts which made it that harm would
follow. Moreover, it is often much easier to prove intent directly, than
to prove the knowledge which would make it unnecessary.

The cases in which a man is treated as the responsible cause of a given
harm, on the one hand, extend beyond those in which his conduct was chosen
in actual contemplation of that result, and in which, therefore, he may be
to have chosen to cause that harm; and, on the other hand, they do not
extend to all instances where the damages would not have happened but for
some remote election his part. Generally speaking, the choice will be
found to have extended further than a simple act, and to co-ordinated acts
into conduct. Very commonly it will have extended further still, to some
external consequence. But generally, also, it will be found to have
stopped short of the consequence complained of.

The question in each case is whether the actual choice, or, in other
words, the actually contemplated result, was near enough to the remoter
result complained of to throw the peril of it upon the actor.

[160] Many of the cases which have been put thus far are cases where the
proximate cause of the loss was intended to be produced by the defendant.
But it will be seen that the same result may be caused by a choice at
different points. For instance, a man is sued for having caused his
neighbor’s house to burn down. The simplest case is, that he actually
intended to burn it down. If so, the length of the chain of physical
causes intervening is of no importance, and has no bearing on the case.

But the choice may have stopped one step farther back. The defendant may
have intended to light a fire on his own land, and may not have intended
to burn the house. Then the nature of the intervening and concomitant
physical causes becomes of the highest importance. The question will be
the degree of danger attending the contemplated (and therefore chosen)
effect of the defendant’s conduct under the circumstances known to him. If
this was very plain and very great, as, for instance, if his conduct
consisted in lighting stubble near a haystack close to the house, and if
the manifest circumstances were that the house was of wood, the stubble
very dry, and the wind in a dangerous quarter, the court would probably
rule that he was liable. If the defendant lighted an ordinary fire in a
fireplace in an adjoining house, having no knowledge that the fireplace
was unsafely constructed, the court would probably rule that he was not
liable. Midway, complicated and doubtful cases would go to the jury.

But the defendant may not even have intended to set the fire, and his
conduct and intent may have been simply to fire a gun, or, remoter still,
to walk across a room, in doing which he involuntarily upset a bottle of
acid. So that cases may go to the jury by reason of the remoteness [161]
of the choice in the series of events, as well as because of the
complexity of the circumstances attending the act or conduct. The
difference is, perhaps, rather dramatic than substantial.

But the philosophical analysis of every wrong begins by determining what
the defendant has actually chosen, that is to say, what his voluntary act
or conduct has been, and what consequences he has actually contemplated as
flowing from them, and then goes on to determine what dangers attended
either the conduct under the known circumstances, or its contemplated
consequence under the contemplated circumstances.

Take a case like the glancing of Sir Walter Tyrrel’s arrow. If an expert
marksman contemplated that the arrow would hit a certain person, cadit
qucoestio. If he contemplated that it would glance in the direction of
another person, but contemplated no more than that, in order to judge of
his liability we must go to the end of his fore-sight, and, assuming the
foreseen event to happen, consider what the manifest danger was then. But
if no such event was foreseen, the marksman must be judged by the
circumstances known to him at the time of shooting.

The theory of torts may be summed up very simply. At the two extremes of
the law are rules determined by policy without reference of any kind to
morality. Certain harms a man may inflict even wickedly; for certain
others he must answer, although his conduct has been prudent and
beneficial to the community.

But in the main the law started from those intentional wrongs which are
the simplest and most pronounced cases, as well as the nearest to the
feeling of revenge which leads to self-redress. It thus naturally adopted
the vocabulary, [162] and in some degree the tests, of morals. But as the
law has grown, even when its standards have continued to model themselves
upon those of morality, they have necessarily become external, because
they have considered, not the actual condition of the particular
defendant, but whether his conduct would have been wrong in the fair
average member of the community, whom he is expected to equal at his
peril.

In general, this question will be determined by considering the degree of
danger attending the act or conduct under the known circumstances. If
there is danger that harm to another will follow, the act is generally
wrong in the sense of the law.

But in some cases the defendant’s conduct may not have been morally wrong,
and yet he may have chosen to inflict the harm, as where he has acted in
fear of his life. In such cases he will be liable, or not, according as
the law makes moral blameworthiness, within the limits explained above,
the ground of liability, or deems it sufficient if the defendant has had
reasonable warning of danger before acting. This distinction, however, is
generally unimportant, and the known tendency of the act under the known
circumstances to do harm may be accepted as the general test of conduct.

The tendency of a given act to cause harm under given circumstances must
be determined by experience. And experience either at first hand or
through the voice of the jury is continually working out concrete rules,
which in form are still more external and still more remote from a
reference to the moral condition of the defendant, than even the test of
the prudent man which makes the first stage of the division between law
and morals. It does this in the domain [163] of wrongs described as
intentional, as systematically as in those styled unintentional or
negligent.

But while the law is thus continually adding to its specific rules, it
does not adopt the coarse and impolitic principle that a man acts always
at his peril. On the contrary, its concrete rules, as well as the general
questions addressed to the jury, show that the defendant must have had at
least a fair chance of avoiding the infliction of harm before he becomes
answerable for such a consequence of his conduct. And it is certainly
arguable that even a fair chance to avoid bringing harm to pass is not
sufficient to throw upon a person the peril of his conduct, unless, judged
by average standards, he is also to blame for what he does.

[164]

LECTURE V. — THE BAILEE AT COMMON LAW.

So far the discussion has been confined to the general principles of
liability, and to the mode of ascertaining the point at which a man begins
to act at his own peril. But it does not matter to a man whether he acts
at his own peril or not, unless harm comes of it, and there must always be
some one within reach of the consequences of the act before any harm can
be done. Furthermore, and more to the point, there are certain forms of
harm which are not likely to be suffered, and which can never be
complained of by any one except a person who stands in a particular
relation to the actor or to some other person or thing. Thus it is neither
a harm nor a wrong to take fish from a pond unless the pond is possessed
or owned by some one, and then only to the possessor or owner. It is
neither a harm nor a wrong to abstain from delivering a bale of wool at a
certain time and place, unless a binding promise has been made so to
deliver it, and then it is a wrong only to the promisee.

The next thing to be done is to analyze those special relations out of
which special rights and duties arise. The chief of them—and I mean
by the word “relations” relations of fact simply—are possession and
contract, and I shall take up those subjects successively.

The test of the theory of possession which prevails in any system of law
is to be found in its mode of dealing [165] who have a thing within their
power, but not own it, or assert the position of an owner for with regard
to it, bailees, in a word. It is therefore, as a preliminary to
understanding the common-law theory of possession, to study the common law
with regard to bailees.

The state of things which prevailed on the border between England and
Scotland within recent times, and which is brought back in the flesh by
the ballad of the Fray O’Suport, is very like that which in an earlier
century left its skeleton in the folk-laws of Germany and England. Cattle
were the principal property known, and cattle-stealing the principal form
of wrongful taking of property. Of law there was very little, and what
there was depended almost wholly upon the party himself to enforce. The
Salic Law of the fifth century and the Anglo-Saxon laws of Alfred are very
full in their directions about following the trail. If the cattle were
come up with before three days were gone, the pursuer had the fight to
take and keep them, subject only to swearing that he lost them against his
will. If more than three days went by before the cattle were found, the
defendant might swear, if he could, to facts which would disprove the
claimant’s loss.

This procedure was in truth a legal procedure; but it depended for its
beginning and for its execution on the party making the claim. From its
“executive” nature, it could hardly have been started by any other than
the person on the spot, in whose keeping the cattle were. The oath was to
the effect that the party had lost possession against his will. But if all
that a man had to swear was that he had lost possession against his will,
it is a natural conclusion that the right to take the oath and make use of
[166]
the procedure depended on possession, and not on ownership. Possession was
not merely sufficient, but it was essential. Only he who was in possession
could say that he had lost the property against his will, just as only he
who was on the spot could follow the cattle. /1/

This, so far as known, was the one means afforded by the early law of our
race for the recovery of property lost against one’s will. So that, in a
word, this procedure, modelled on the self-redress natural to the case
which gave rise to it, was the only remedy, was confined to the man in
possession, and was not open to the owner unless he was that man.

To this primitive condition of society has been traced a rule which
maintained itself to later times and a more civilized procedure, that, if
chattels were intrusted by their owner to another person, the bailee, and
not the bailor, was the proper party to sue for their wrongful
appropriation by a third. It followed that if the bailee, or person [167]
so intrusted, sold or gave the goods in his charge to another, the owner
could only look to the bailee, and could not sue the stranger; not from
any principle in favor of trade, intended to protect those who bought in
good faith from parties in possession, but because there was no form of
action known which was open to him. But as the remedies were all in the
bailee’s hands, it also followed that he was bound to hold his bailor
harmless. If the goods were lost, it was no excuse that they were stolen
without his fault. He alone could recover the lost property, and therefore
he was bound to do so.

In the course of time this reason ceased to exist. An owner out of
possession could sue the wrongful taker of his property, as well as one
who had possession. But the strict liability of the bailee remained, as
such rules do remain in the law, long after the causes which gave rise to
it had disappeared, and at length we find cause and effect inverted. We
read in Beaumanoir (A.D. 1283) that, if a hired thing is stolen, the suit
belongs to the bailee, because he is answerable to the person from whom he
hired. /1/ At first the bailee was answerable to the owner, because he was
the only person who could sue. Now it was said he could sue because he was
answerable to the owner.

All the above peculiarities reappear in the Anglo-Norman law, and from
that day to this all kinds of bailees have been treated as having
possession in a legal sense, as I shall presently show.

It is desirable to prove the native origin of our law of bailment, in
order that, when theory comes to be considered, modern German opinion may
not be valued at more than its true worth. The only existing theories on
[168]
the subject come from Germany. The German philosophers who have written
upon law have known no other system than the Roman, and the German lawyers
who have philosophized have been professors of Roman law. Some rules which
we think clear are against what the German civilians would regard as first
principles. To test the value of those principles, or at least to prevent
the hasty assumption that they are universal, toward which there is a
slight tendency among English writers, it is well to realize that we are
dealing with a new system, of which philosophy has not yet taken account.

In the first place, we find an action to recover stolen property, which,
like the Salic procedure, was based on possession, not on title. Bracton
says that one may sue for his chattel as stolen, by the testimony of good
men, and that it does not matter whether the thing thus taken was his own
property or another’s, provided it was in his custody. /1/

The point of especial importance, it will be remembered, was the oath. The
oath of the probi homines would seem from the letter of Bracton to have
been that the thing was lost (adirata), and this we are expressly told was
the fact in a report of the year 1294. “Note that where a man’s chattel is
lost (ou la chosse de un home est endire), he may count that he [the
finder] tortiously detains it, &c., and tortiously for this that
whereas he lost the said thing on such a day, &c., he [the loser] came
on such a day, &c. [169] (la vynt yl e en jour), and found it in the
house of such an one, and told him, &c., and prayed him to restore the
Sing, but that he would not restore it, &c., to his damage, &c.;
and if he, &c. In this case, the demandant must prove (his own hand
the twelfth) that he lost the thing.” /1/

Assuming that as the first step we find a procedure kindred to that of the
early German folk-laws, the more important question is whether we find any
principles similar to those which have just been explained. One of these,
it will be remembered, concerned wrongful transfer by the bailee. We find
it laid down in the Year Books that, if I deliver goods to a bailee to
keep for me, and he sells or gives them to a stranger, the property is
vested in the stranger by the gift, and I cannot maintain trespass against
him; but that I have a good remedy against the bailee by writ of detinue
(for his failure to return the goods). /2/ These cases have been
understood, and it would seem on the whole rightly, not merely to deny
trespass to the bailor, but any action whatever. Modern writers have
added, however, the characteristically modern qualification, that the
purchase must be bona fide, and without notice. /3/ It may be answered,
that the proposition extends to gifts as well as to sales by the bailee,
that there is no such condition in the old books, and that it is contrary
to the spirit of the strict doctrines of the common law to read it in. No
lawyer needs to be told that, even so qualified, this is no [170]
longer the law. /1/ The doctrine of the Year Books must be regarded as a
survival from the primitive times when we have seen the same rule in
force, unless we are prepared to believe that in the fifteenth century
they had a nicer feeling for the rights of bona fide purchasers than at
present.

The next point in logical order would be the degree of responsibility to
which the bailee was held as towards his bailor who intrusted him. But for
convenience I will consider first the explanation which was given of the
bailee’s right of action against third persons wrongfully taking the goods
from his possession. The inverted explanation of Beaumanoir will be
remembered, that the bailee could sue because he was answerable over, in
place of the original rule, that he was answerable over so strictly
because only he could sue. We find the same reasoning often repeated in
the Year Books, and, indeed, from that day to this it has always been one
of the commonplaces of the law. Thus Hankford, then a judge of the Common
Bench, says (circa A.D. 1410), /2/ “If a stranger takes beasts in my
custody, I shall have a writ of trespass against him, and shall recover
the value of the beasts, because I am chargeable for the beasts to my
bailor, who has the property.” There are cases in which this reasoning was
pushed to the conclusion, that if, by the terms of the trust, the bailee
was not answerable for the goods if stolen, he would not have an action
against the thief. /3/ The same explanation is repeated to this day. Thus
we read in a well- known textbook, [171] “For the bailee
being responsible to the bailor, if the goods be lost or damaged by
negligence, or if he do not deliver them up on lawful demand, it is
therefore reasonable that he should have a right of action,” &c. /1/
In general, nowadays, a borrower or hirer of property is not answerable if
it is taken from him against his will, and if the reason offered were a
true one, it would follow that, as he was not answerable over, he could
not sue the wrong-doer. It would only be necessary for the wrong-doer to
commit a wrong so gross as to free the bailee from responsibility, in
order to deprive him of his right of action. The truth is, that any person
in possession, whether intrusted and answerable over or not, a finder of
property as well as a bailee, can sue any one except the true owner for
interfering with his possession, as will be shown more particularly at the
end of the next Lecture.

The bailor also obtained a right of action against the wrong-doer at a
pretty early date. It is laid down by counsel in 48 Edward III., /2/ in an
action of trespass by an agister of cattle, that, “in this case, he who
has the property may have a writ of trespass, and he who has the custody
another writ of trespass. Persay: Sir, it is true. But [172]
he who recovers first shall oust the other of the action, and so it shall
be in many cases, as if tenant by elegit is ousted, each shall have the
assize, and, if the one recover first, the writ of the other is abated,
and so here.”

It would seem from other books that this was spoken of bailments
generally, and was not limited to those which are terminable at the
pleasure of the bailor. Thus in 22 Edward IV., counsel say, “If I bail to
you my goods, and another takes them out of your possession, I shall have
good action of trespass quare vi et armis.” /1/ And this seems to have
been Rolle’s understanding in the passage usually relied on by modern
courts. /2/

It was to be expected that some action should be given to the bailor as
soon as the law had got machinery which could be worked without help from
the fresh pursuit and armed hands of the possessor and his friends. To
allow the bailor to sue, and to give him trespass, were pretty nearly the
same thing before the action on the case was heard of. Many early writs
will be found which show that trespass had not always the clear outline
which it developed later. The point which seems to be insisted on in the
Year Books is, as Brooke sums it up in the margin of his Abridgment, that
two shall have an action for a single act,—not that both shall have
trespass rather than case. /3/ It should be added that the Year Books
quoted do not go beyond the case of a wrongful taking out of the custody
of the bailee, the old case of the folk-laws. /4/ Even thus [173]
the right to maintain trespass is now denied where bailee has the
exclusive right to the goods by lease or lien; /1/ although the doctrine
has been repeated with reference to bailments terminable at the pleasure
of the bailor. /2/ But the modified rule does not concern the present
discussion, any more than the earlier form, because it still leaves open
the possessory remedies to all bailees without exception. This appears
from the relation of the modified rule to the ancient law; from the fact
that Baron Parke, in the just cited case of Manders v. Williams, hints
that he would have been prepared to apply the old rule to its full extent
but for Gordon v. Harper, and still more obviously from the fact, that the
bailee’s right to trespass and trover is asserted in the same breath with
that of the bailor, as well as proved by express decisions to be cited.

It is true that in Lotan v. Cross, /3/ Lord Ellenborough ruled at nisi
prius that a lender could maintain trespass for damage done to a chattel
in the hands of a borrower, and that the case is often cited as authority
without remark. Indeed, it is sometimes laid down generally, in reputable
text-books, that a gratuitous bailment does not change the possession, but
leaves it in the bailor; /4/ that a gratuitous bailee is quasi a servant
of the bailor, and the possession of one is the possession of the other;
and that it is for this reason that, although the bailee may sue on [174]
his possession, the bailor has the same actions. /1/ A part of this
confusion has already been explained, and the rest will be when I come to
speak of servants, between whom and all bailees there is a broad and
well-known distinction. But on whatever ground Lotan v. Cross may stand,
if on any, it cannot for a moment be admitted that borrowers in general
have not trespass and trover. A gratuitous deposit for the sole benefit of
the depositor is a much stronger case for the denial of these remedies to
the depositary; yet we have a decision by the full court, in which Lord
Ellenborough also took part, that a depositary has case, the reasoning
implying that a fortiori a borrower would have trespass. And this has
always been the law. /2/ It has been seen that a similar doctrine
necessarily resulted from the nature of the early German procedure; and
the cases cited in the note show that, in this as in other respects, the
English followed the traditions of their race.

The meaning of the rule that all bailees have the possessory remedies is,
that in the theory of the common law every bailee has a true possession,
and that a bailee recovers on the strength of his possession, just as a
finder does, and as even a wrongful possessor may have full damages or a
return of the specific thing from a stranger to the title. On the other
hand, so far as the possessory actions are still allowed to bailors, it is
not on the ground that they also have possession, but is probably by a
survival, which [175] explained, and which in the modern form of
the an anomaly. /1/ The reason usually given is, that a right of immediate
possession is sufficient,—a reason which the notion that the bailor
is actually possessed.

The point which is essential to understanding the common-law theory of
possession is now established: that all bailees from time immemorial have
been regarded by the English law as possessors, and entitled to the
possessory remedies. It is not strictly necessary to go on and complete
the proof that our law of bailment is of pure German descent. But, apart
from curiosity, the doctrine remaining to be discussed has had such
important influence upon the law of the present day, that I shall follow
it out with some care. That doctrine was the absolute responsibility of
the bailee to the bailor, if the goods were wrongfully taken from him. /2/

The early text-writers are not as instructive as might be hoped, owing to
the influence of the Roman law. Glanvil, however, says in terms that, if a
borrowed thing be destroyed or lost in any way while in the borrower’s
custody, he is absolutely bound to return a reasonable price. /3/ So does
Bracton, who partially repeats but modifies the language of Justinian as
to commodatum, depositum, and pignus; /4/ and as to the duty of the hirer
to use the care of a diligentissimus paterfamilias. /5/

[176]
The language and decisions of the courts are perfectly clear; and there we
find the German tradition kept alive for several centuries. I begin with
the time of Edward II., about 1315. In detinue the plea was that the
plaintiff delivered the defendant a chest locked with his key, that the
chattels were in the chest, and that they were taken from the defendant
together with his own goods by robbery. The replication was that the goods
were delivered to the defendant out of enclosure, and Fitzherbert says the
party was driven to that issue; /1/ which implies that, if not in the
chest, but in the defendant’s custody, he was liable. Lord Holt, in Coggs
v. Bernard, /2/ denies that the chest would make any difference; but the
old books agree that there is no delivery if the goods are under lock and
key; and this is the origin of the distinction as to carriers breaking
bulk in modern criminal law. /3/ In the reign of Edward III., /4/ the case
of a pledge came up, which seems always to have been regarded as a special
bailment to keep as one’s own goods. The defence was, that the goods were
stolen with the defendant’s own. The plaintiff was driven to reply a
tender before the theft, which would have put an end to the pledge, and
left the defendant a general bailee. /5/ Issue was taken thereon, which
confirms the other cases, by implying that in that event the defendant
would be liable.

Next I take a case of the time of Henry VI., A.D. 1455. /6/ [177]
was an action of debt against the Marshal of the Marshalsea, or jailer of
the King’s Bench prison, for an escape of a prisoner. Jailers in charge of
prisoners were governed by the same law as bailees in charge of cattle.
The body of the prisoner was delivered to the jailer to keep under the
same liabilities that cows or goods might have been. /1/ He set up in
defence that enemies of the king broke into the prison and carried off the
prisoner, against the will of the defendant. The question was whether this
was a good defence. The court said that, if alien enemies of the king, for
instance the French, released the prisoner, or perhaps if the burning of
the prison gave him a chance to escape, the excuse would be good, “because
then [the defendant] has remedy against no one.” But if subjects of the
king broke the prison, the defendant would be liable, for they are not
enemies, but traitors, and then, it is implied, the defendant would have a
right of action against them, and therefore would himself be answerable.
In this case the court got very near to the original ground of liability,
and distinguished accordingly. The person intrusted was liable in those
cases where he had a remedy over against the wrong-doer (and in which,
originally, he was the only person who had such a remedy); and, on the
other hand, his liability, being founded on that circumstance, ceased
where the remedy ceased. The jailer could not sue the soldiers of an
invading army of Frenchmen; but in theory he could sue any British subject
who carried off the prisoner, however little it was likely that he would
get much satisfaction in that way.

A few years later the law is stated the same way by the famous Littleton.
He says that, if goods are delivered to [178] a man, he shall have
an action of trespass if they are carried off, for he is chargeable over.
/1/ That is, he is bound to make the loss good to the party who intrusted
him.

In 9 Edward IV., /2/ Danby says if a bailee received goods to keep as his
proper goods, then robbery shall excuse him, otherwise not. Again, in a
later case /3/ robbery is said not to be an excuse. There may have been
some hesitation as to robbery when the robber was unknown, and so the
bailee had no remedy over, /4/ or even as to robbery generally, on the
ground that by reason of the felony the bailee could not go against either
the robber’s body or his estate; for the one was hanged and the other
forfeited. /5/ But there is not a shadow of doubt that the bailee was not
excused by an ordinary wrongful taking. “If the goods are taken by a
trespasser, of whom the bailee has conusance, he shall be chargeable to
his bailor, and shall have his action over against his trespasser.” /6/
The same point was touched in other passages of the Year Books, /7/ and
the rule of law is clearly implied by the reason which was given for the
bailee’s right to sue in the cases cited above.

The principle was directly decided in accordance with the ancient law in
the famous case of Southcote v. Bennet. /8/ This was detinue of goods
delivered to the defendant to [179] keep safely. The defendant confessed
the delivery, and set up he was robbed of the goods by J.S. “And, after
argument at the bar, Gawdy and Clench, ceteris absentibus, held that the
plaintiff ought to recover, because it was not a special bailment; that
the defendant accepted them to keep as his proper goods, and not
otherwise; but it is a delivery, which chargeth him to keep them at his
peril. And it is not any plea in a detinue to say that he was robbed by
one such; for he hath his remedy over by trespass, or appeal, to have them
again.” The above from Croke’s report implies, what Lord Coke expressly
says, that “to be kept, and to be kept safe, is all one,” and both reports
agree that the obligation was founded on the delivery alone. Croke’s
report confirms the caution which Lord Coke adds to his report: “Note,
reader, it is good policy for him who takes any goods to keep, to take
them in special manner, scil. to keep them as he keeps his own goods,…
or if they happen to be stolen or purloined, that he shall not be
answerable for them; for he who accepted them ought to take them in such
or the like manner, or otherwise he may be charged by his general
acceptance.”

Down to this time, at least, it was clear law that, if a person accepted
the possession of goods to keep for another even as a favor, and lost them
by wrongful taking, wholly without his fault, he was bound to make good
the loss, unless when he took possession he expressly stipulated against
such a responsibility. The attempts of Lord Holt in Coggs v. Bernard, and
of Sir William Jones in his book on Bailments, to show that Southcote v.
Bennet was not sustained by authority, were futile, as any one who will
Study the Year Books for himself may see. The same principle was laid down
seven years before by Peryam, [180] C. B., in Drake v.
Royman, /1/ and Southcote’s Case was followed as a leading precedent
without question for a hundred years.

Thus the circle of analogies between the English and the early German law
is complete. There is the same procedure for lost property, turning on the
single question whether the plaintiff had lost possession against his
will; the same principle that, if the person intrusted with the property
parted with it to another, the owner could not recover it, but must get
his indemnity from his bailee; the same inverted explanation, that the
bailee could sue because he was answerable over, but the substance of the
true doctrine in the rule that when he had no remedy he was not
answerable; and, finally, the same absolute responsibility for loss, even
when happening without fault on the part of the person intrusted. The last
and most important of these principles is seen in force as late as the
reign of Queen Elizabeth. We have now to follow its later fortunes.

A common carrier is liable for goods which are stolen from him, or
otherwise lost from his charge except by the act of God or the public
enemy. Two notions have been entertained with regard to the source of this
rule: one, that it was borrowed from the Roman law; /2/ the other, that it
was introduced by custom, as an exception to the general law of bailment,
in the reigns of Elizabeth and James I. /3/

I shall try to show that both these notions are wrong, that this strict
responsibility is a fragmentary survival from the general law of bailment
which I have just explained; [181] the modifications which the old law has
undergone were due in part to a confusion of ideas which came the
displacement of detinue by the action on the case, in part to conceptions
of public policy which were read into the precedents by Lord Holt, and in
part to still later conceptions of policy which have been read into the
reasonings of Lord Holt by later judges.

Southcote’s Case was decided in the forty-third year of Queen Elizabeth
(A.D. 1601). I think the first mention of a carrier, pertinent to the
question, occurs in Woodlife’s Case, /1/ decided four or five years
earlier (38 or 39 Eliz., A.D. 1596 or 1597). It was an action of account
for merchandise delivered to the defendant, it would seem as a factor
(“pur merchandizer”)—clearly not as a carrier. Plea, robbery at sea
with defendant’s own goods. Gawdy, one of the judges who decided
Southcote’s Case, thought the plea bad; but Popham, C. J. said that,
though it would not be a good plea for a carrier because he is paid for
his carriage, there was a difference in this respect between carriers and
other servants and factors.

This is repeated in Southcote’s Case, and appears to involve a double
distinction,—first between paid and unpaid bailees, next between
bailees and servants. If the defendant was a servant not having control
over the goods, he might not fall within the law of bailment, and factors
are treated on the footing of servants in the early law.

The other diversity marked the entrance of the doctrine of consideration
into the law of bailment. Consideration originally meant quid pro quo, as
will be explained hereafter. It was thus dealt with in Doctor and Student
/2/ when the principle was still young. Chief Justice [182]
Popham probably borrowed his distinction between paid and unpaid bailees
from that work, where common carriers are mentioned as an example of the
former class. A little earlier, reward made no difference. /1/

But in Woodlife’s Case, in reply to what the Chief Justice had said, Gawdy
cited the case of the Marshal of the King’s Bench, /2/ stated above,
whereupon Popham fell back on the old distinction that the jailer had a
remedy over against the rebels, but that there was no remedy over in the
case at bar.

The other cases relied on were some of those on general bailment collected
above; the same authorities, in short, on which Southcote’s Case was
founded. The principle adopted was the same as in Southcote’s Case,
subject only to the question whether the defendant fell within it. Nothing
was said of any custom of the realm, or ever had been in any reported case
before this time; and I believe this to be the first instance in which
carriers are in any way distinguished from any other class of persons
intrusted with goods. There is no hint of any special obligation peculiar
to them in the old books; and it certainly is not true, that this case
introduced one. It will be noticed, with reference to what follows, that
Popham does not speak of common carriers, but of carriers.

Next came Southcote’s Case /3/ (43 Eliz., A.D. 1601), which presented the
old law pure and simple, irrespective of reward or any modern innovation.
In this and the earlier instances of loss by theft, the action was
detinue, counting, we may presume, simply on a delivery and wrongful
detainer.

[183]
But about this time important changes took place in the procedure usually
adopted, which must be explained. If the chattel could be returned in
specie, detinue afforded no satisfaction for damage which it might have
suffered through the bailee’s neglect. /1/ The natural remedy for such
damage was the action on the case. But before this could be made entirely
satisfactory, there were certain difficulties to be overcome. The neglect
which occasioned the damage might be a mere omission, and what was there
akin to trespass in a nonfeasance to sustain the analogy upon which
trespass on the case was founded? Moreover, to charge a man for not
acting, you must show that it was his duty to act. As pleadings were
formerly construed, it would not have been enough to allege that the
plaintiff’s goods were damaged by the defendant’s negligence. /2/ These
troubles had been got over by the well-known words, super se assumpsit,
which will be explained later. Assumpsit did not for a long time become an
independent action of contract, and the allegation was simply the
inducement to an action of tort. The ground of liability was that the
defendant had started upon the undertaking, so that his negligent
omission, which let in the damage, could be connected with his acts as a
part of his dealing with the thing. /3/ We shall find Lord Holt
recognizing this original purport of assumpsit when we come to Coggs v.
Bernard. Of course it was not confined to cases of bailment.

But there was another way besides this by which the defendant could be
charged with a duty and made liable [184] in case, and which,
although less familiar to lawyers, has a special bearing on the law of
carriers in later times. If damage had been done or occasioned by the act
or omission of the defendant in the pursuit of some of the more common
callings, such as that of a farrier, it seems that the action could be
maintained, without laying an assumpsit, on the allegation that he was a
“common” farrier. /1/ The latter principle was also wholly independent of
bailment. It expressed the general obligation of those exercising a public
or “common” business to practise their art on demand, and show skill in
it. “For,” as Fitzherbert says, “it is the duty of every artificer to
exercise his art rightly and truly as he ought.” /2/

When it had thus been established that case would lie for damage when
occasioned by the omission, as well as when caused by the act, of the
defendant, there was no reason for denying it, even if the negligent
custody had resulted in the destruction of the property. /3/ From this it
was but a step to extend the same form of action to all cases of loss by a
bailee, and so avoid the defendant’s right to wage his law. Detinue, the
primitive remedy, retained that mark of primitive procedure. The last
extension was made about the time of Southcote’s Case. /4/ But when the [185]
same form of action thus came to be used alike for damage or destruction
by the bailee’s neglect and for loss by a wrong-doer against whom the
bailee had a remedy over, a source was opened for confusion with regard to
the foundation and nature of the defendant’s duty.

In truth, there were two sets of duties,—one not peculiar to
bailees, arising from the assumpsit or public calling of the defendant, as
just explained; the other, the ancient obligation, peculiar to them as
such, of which Southcote’s Case was an example. But any obligation of a
bailee might be conceived of as part of a contract of bailment, after
assumpsit had become appropriated to contract, the doctrine of
consideration had been developed, (both of which had happened in Lord
Coke’s time,) it seemed unnecessary to distinguish nicely between the two
sets of duties just mentioned, provided a consideration and special
promise could be alleged. Furthermore, as formerly the defendant’s public
calling had the same effect as an assumpsit for the purpose of charging
him in tort, it seems now to have been thought an equally good substitute
for a special promise, in order to charge him in assumpsit. In Rogers v.
Head, /1/ the argument was, that to charge one in assumpsit you must show
either his public calling at the time of the delivery, or a special
promise on sufficient consideration. This argument assumes that a bailee
who received goods in the course of a public employment, [186]
for instance as a common carrier, could be charged in this form of action
for a breach of either of the above sets of duties, by alleging either his
public calling or his reward and a special promise. It seems to have been
admitted, as was repeatedly decided before and since that case, that one
who was not a common carrier could have been charged for non-delivery in a
special action; that is, in case as distinguished from assumpsit.

Suppose, next, that the plaintiff sued in case for a tort. As before, the
breach of duty complained of might be such damage to property as had
always been sued for in that form of action, or it might be a loss by
theft for which detinue would formerly have been brought, and which fell
on the bailee only by reason of the bailment. If the goods had been
stolen, the bailee’s liability rested neither on his common calling nor on
his assumpsit and his neglect, but arose from the naked facts that he had
accepted a delivery and that the goods were gone, and in such cases it
ought to have been enough to allege those facts in the declaration. /1/
But it was very natural that the time-honored foundations for the action
on the case in its more limited application should still be laid in the
pleadings, even after the scope of the action had been enlarged. We shall
have to inquire, later, whether the principles of Southcote’s Case were
not also extended in the opposite direction to cases not falling within
it. The reasons for the rule which it laid down had lost their meaning
centuries before Gawdy and Clench were born, when owners had acquired the
right to sue for the wrongful taking of property in the hands [187]
and the rule itself was a dry precedent likely to be followed according to
the letter because the spirit had departed. It had begun to totter when
the reporter cautioned bailees to accept in such terms as to get rid of
it. /1/

Accordingly, although that decision was the main authority relied on for
the hundred years between it and Coggs v. Bernard whenever a peculiar
responsibility was imposed upon bailees, we find that sometimes an
assumpsit was laid as in the early precedents, /2/ or more frequently that
the bailee was alleged to be a common bargeman, or common carrier, or the
like, without much reference to the special nature of the tort in
question; and that the true bearing of the allegation was sometimes lost
sight of. At first, however, there were only some slight signs of
confusion in the language of one or two cases, and if the duty was
conceived to fall within the principle of Southcote’s Case, pleaders did
not always allege the common or public calling which was held unnecessary.
/3/ But they also adopted other devices from the precedents in case, or to
strengthen an obligation which they did not well understand. Chief Justice
Popham had sanctioned a distinction between paid and unpaid bailees, hence
it was deemed prudent to lay a reward. Negligence was of course averred;
and finally it became frequent to allege an obligation by the law and
custom of the realm. This last deserves a little further attention.

There is no writ in the Register alleging any special obligation of common
carriers by the custom of the realm. But the writ against innkeepers did
lay a duly “by the [188] law and custom of England,” and it was easy
to adopt the phrase. The allegation did not so much imply the existence of
a special principle, as state a proposition of law in the form which was
then usual. There are other writs of trespass which allege a common-law
duty in the same way, and others again setting forth a statutory
obligation. /1/ So “the judges were sworn to execute justice according to
law and the custom of England.” /2/

The duties of a common carrier, so far as the earlier evidence goes, were
simply those of bailees in general, coupled with the liabilities generally
attached to the exercise of a public calling. The word “common” addressed
itself only to the latter point, as has been shown above. This is further
illustrated by the fact that, when the duty was thus set forth, it was not
alleged as an obligation peculiar to common carriers as such, but was laid
as the custom of law of common hoymen, or lightermen, &c., according
to the business of the party concerned. It will be noticed that Chief
Justice Holt in Coggs v. Bernard states the liability as applicable to all
bailees for reward, exercising a public employment, and mentions common
hoymen and masters of ships alongside of, not as embraced under, common
carriers. It will also be noticed in the cases before that time, that
there is no settled formula for the obligation in question, but that it is
set forth in each case that the defendant was answerable for what he was
said to have done or omitted in the particular instance. /3/

[189]
Returning now to the succession of the cases, Rich v. Kneeland is the next
in order (11 Jac. I., A.D. 1613). It was an action on the case (tort),
against a common hoyman. In Croke’s report nothing is said of custom; but
the declaration avers that the defendant was a common bargeman, that the
plaintiff delivered him a portmanteau, &c. to carry, and paid him for
it, and that the defendant tam negligenter custodivit, that it was taken
from him by persons unknown,—like the second count in Morse v. Slue,
below. The plea was demurred to, and adjudged for the plaintiff. A writ of
error being brought, it was assigned that “this action lies not against a
common bargeman without special promise. But all the Justices and Barons
held, that it well lies as against a common carrier upon the land.” If we
follow this report, it seems at the first glance that importance was
attributed to the common calling. But as the loss was clearly within the
principle of Southcote’s Case, which required neither special promise nor
common calling for its application, and which remained unquestioned law
for three quarters of a century later, the court must have referred to the
form of action employed (case), and not to the liability of the defendant
in some form of action (detinue). The objection was that “this action lies
not,” not that the defendant not liable, “without special promise.” Even
thus narrowed, it rather countenances the notion that allegations which
were necessary to charge a man for damage happening through his neglect,
in the more ancient and use of this action, were also necessary in this
new [190]
extension of it to a different class of wrongs. As it was now pretty clear
that case would lie for a nonfeasance, the notion was mistaken, and we
shall see that it was denied in subsequent decisions. /1/

According to Hobart’s report, it was alleged that the defendant was a
common hoyman, to carry goods by water, for hire, &c., that by the
custom of England such carriers ought to keep the goods, &c., so as
they should not be lost by the default of them or their servants, &c.
“And it was resolved that, though it was laid as a custom of the realm,
yet indeed it is common law.” This last resolution may only mean that the
custom of the realm and the common law are the same thing, as had been
said concerning innkeepers long before. /2/ But the law as to innkeepers,
which was called the custom of the realm in the writ, had somewhat the air
of a special principle extending beyond the law of bailment, inasmuch as
their liability extended to goods within the inn, of which they had not
the custody, and the court may have meant to make an antithesis between
such a special principle and the common law or general law of bailment
governing the present case.

Whatever doubts some of Croke’s language might raise, standing alone, the
fact remains indisputable, that for nearly a century from Woodlife’s Case
the liability of carriers for loss of goods, whether the custom of the
realm or the defendant’s common calling was alleged or not, was placed
upon the authority and was intended to be decided on the principle of
Southcote’s Case.

[191]
Symons v. Darknell 1 (4 Car. I., A.D. 1628) is precisely in point. The
declaration was, that, by the common law, every lighterman ought so to
manage his lighter that the goods carried therein should not perish. “And
although no promise laid, it seemed to the court that the plaintiff should
recover; and not alleging that defendant was common lighterman was no
harm. Hyde, C. J., delivery makes the contract.” This did not mean that
delivery was a good consideration for a promise; but, as was laid down in
Southcote’s Case, that delivery, without a special acceptance to keep only
as one’s own goods, bound the bailee to keep safely, and therefore made it
unnecessary to allege either an assumpsit or the defendant’s common
calling. Whitlock, J. called attention to the fact that the action was
tort, not contract. “Et en cest case… Southcote’s Case fuit cite.”

The same rule is stated as to bailments in general, the same year, by
Sergeant Maynard arguendo in Williams v. Hide, /2/ again citing
Southcote’s Case.

In Kenrig v. Eggleston /3/ (24 Car. I., A.D. 1648), “case against a
country carrier for not delivering a box,” &c., of which he was
robbed, nothing was said about custom, nor being a common carrier, unless
the above words imply that he was; but it was laid down, as in Southcote’s
Case, that “it must come on the carrier’s part acceptance” if he would
lessen his liability as bailee.

Nichols v. Moore /4/ (13 Car. II., A.D. 1661) was case against a “water
carrier,” between Hull and London, laying a delivery to him at York. It
was moved in arrest of [192] judgment, that the defendant did not
undertake to carry the goods from York to Hull. “But notwithstanding this
per totam curiam, the defendant shall be charged on his general receipt at
York, according to Southcote’s Case.”

It is fair to mention that in Matthews v. Hopkins /1/ (17 Car. II.)the
declaration was on the custom of the realm against a common carrier, and
there was a motion in arrest of judgment, because there was a misrecital
of the custom of the realm, and the defendant was not alleged to have been
a carrier at the time of the receipt, and also because counts in trover,
and in case on the custom, were joined. Judgment was arrested, it would
seem on the latter ground, but the court continued: “And, although the
declaration may be good without recital of the custom of the realm, as
Hobart says, still it is the better way to recite it.”

We now come to the great case of Morse v. Slue /2/ (23 & 24 Car. II.,
A.D. 1671, 1672). This was an action against the master of a ship lying in
the river Thames, for the loss of goods intrusted to him. The goods in
question were taken away by robbers, and it was found that the ship had
the usual guard at the time. There seem to have been two counts, one on
the law and custom of England (1 Vent. 190), for masters of ships
“carefully to govern, preserve, and defend goods shipped, so long as said
ship should remain in the river Thames” (2 Keb. 866); “to keep safely
[goods shipped to be carried from London beyond sea] without loss or
subtraction, ita quodpro defectu of them they may not come to any damage”
(1 Vent. 190); “to keep safely goods delivered to them to carry, dangers
[193]
of the sea excepted” (2 Levinz, 69; the exception last was perhaps drawn
by the reporter from the usual bills of lading referred to in argument).
The second count, which is usually overlooked, was a special count “on
delivery and being stolen by his neglect.” /1/

The case was twice argued, and all the reports agree, as far as they go,
in their statements of the points insisted on.

Holt, for the plaintiff, maintained: /2/ 1. That the master receives goods
generally, citing Southcote’s Case, and that in “only guardian in socage
who hath the custody by law, who factor who is servant at the master’s
dispose, and so cannot take care, are exempt.” 2. That the master has a
reward for his keeping, and is therefore a proper person to be sued. 3.
That the master has a remedy over, citing the case of the Marshal of the
King’s Bench. /3/ That the mischief would be great if the master were not
liable, as merchants put their trust in him, and no particular default be
shown, as appears by the bill of lading, and, finally, that neglect
appeared.

On the other side, it was urged that no neglect was found, and that the
master was only a servant; so that, if any one was liable, the owners
were. /4/ It was also suggested that, as there would have been no
liability if the goods had been taken at sea, when the case would have
within the admiralty law, it was absurd that a different rule should
govern the beginning of the voyage from would have governed the rest of
it. /5/

[194]
On the second argument, it was again maintained for the plaintiff that the
defendant was liable “at the common law on the general bailment,” citing
Southcote’s Case, and also that, by the Roman and maritime law, he was
liable as a public carrier and master of a ship.

The opinion of the court was delivered by Chief Justice Hale. It was held
that, the ship being within the body of the county, the admiralty law did
not apply; or, according to 1 Mod. 85, note a, “the master could not avail
himself of the rules of the civil law, by which masters are not chargeable
pro damno fatali”; that the master was liable to an action because he took
a reward; that “he might have made a caution for himself, which he
omitting and taking in the goods generally, he shall answer for what
happens.” /1/ The case of Kenrig v. Eggleston /2/ seems also to have been
referred to. It was further said that the master was rather an officer
than a servant, and in effect received his wages from the merchant who
paid freight. Finally, on the question of negligence, that it was not
sufficient to have the usual number of men to guard the ship, but that it
was neglect not to have enough to guard the goods, unless in case of the
common enemies, citing the case of the Marshal, which it will be
remembered was merely the principle of Southcote’s Case and the common law
of bailment in another form. /3/

It will be observed that this case did not go on any special custom,
either as to common carriers or shipmasters, but that all the arguments
and the opinion of the court assumed that, if the case was to be governed
by the common law, and not by the milder provisions of the civil [195]
law relied on for the defence, and if the defendant could be regarded as a
bailee, and not merely a servant of the owners, then the general law of
bailment would apply, and the defendant would be charged, as in
Southcote’s Case, “by his general acceptance.”

It can hardly be supposed, however, that so enlightened a judge as Sir
Matthew Hale would not have broken away the Year Books, if a case had
arisen before him where property had been received as a pure favor to the
plaintiff, without consideration or reward, and was taken from the
defendant by robbery. Such a case was tried before Chief Justice
Pemberton, and he very sensibly ruled that no action lay, declining to
follow the law of Lord Coke’s time to such extreme results /1/ (33 Car.
II., A.D. 1681).

About the same time, the defendant’s common calling began to assume a new
importance. The more important alternative allegation, the assumpsit, had
the effect in the end of introducing the not intrinsically objectionable
doctrine that all duties arising from a bailment are founded on contract.
/2/ But this allegation, having now a special action to which it had given
rise, was not much used where the action was tort, while the other
averment occurs with increasing frequency. The notion was evidently
gaining ground that the liability of common carriers for loss of [196]
goods, whatever the cause of the loss might be, arose from a special
principle peculiar to them, and not applicable to bailees in general. The
confusion of independent duties which has been explained, and of which the
first trace was seen in Rich v. Kneeland, was soon to become complete. /1/
Holt became Chief Justice. Three of the cases in the last note were
rulings of his. In Lane v. Cotton /2/ (13 Will. III., A.D. 1701), he
showed his disapproval of Southcote’s Case, and his impression that the
common law of bailment was borrowed from Rome. The overthrow of
Southcote’s Case and the old common law may be said to date from Coggs v.
Bernard /3/ (2 Anne, A.D. 1703). Lord Holt’s famous opinion in the latter
case quotes largely from the Roman law as it filtered to him through
Bracton; but, whatever influence that may have had upon his general views,
the point decided and the distinctions touching common carriers were of
English growth.

The action did not sound in contract. The cause was for damage to the
goods, and the plaintiff sued for a tort, laying an assumpsit by way of
inducement to a charge of negligence, as in the days of Henry VI. The plea
was not guilty. But after verdict for the plaintiff, there was a motion in
arrest of judgment, “for that it was not alleged in the declaration that
the defendant was a common porter, nor averred that he had anything for
his pains.” Consideration was never alleged or thought of in the primitive
assumpsit, but in the modern action of contract in that form [197]
it was required. Hence, it was inferred that, wherever an assumpsit was
laid, even in all action of tort for damage to property, it was the
allegation of a contract, and that a consideration must be shown for the
undertaking, although the contrary had been decided in the reign of Queen
Elizabeth. /1/ But the motion did not prevail, and judgment was given for
the plaintiff. Lord Holt was well aware that the use of an assumpsit was
not confined to contract. It is true that he said, “The owner’s trusting
[the defendant] with the goods is a sufficient consideration to oblige him
to a careful management,” or to return them; but this means as
distinguished from a consideration sufficient to oblige him to carry them,
which he thought the defendant would not have been bound to do. He then
expressly says, “This is a different case, for assumpsit does not only
signify a future agreement, but, in such cases as this, it signifies an
actual entry upon the thing and taking the trust upon himself”; following
the earlier cases in the Year Books. /2/ This was enough for the decision,
and the rule in Southcote’s Case had nothing to do with the matter. But as
the duty of common carriers by reason of their calling was now supposed to
extend to all kinds of losses, and the doctrine of Southcote’s Case was
probably supposed to extend to many kinds of damage, it became necessary,
in a general discussion, to reconcile or elect between the two principles.

The Chief Justice therefore proceeded to distinguish between [198] bailees
for reward exercising a public employment, such as common carriers, common
hoymen, masters of ships, &c., and other bailees; denied the rule in
Southcote’s Case as to the latter; said that the principle of strict
responsibility was confined to the former class, and was applied to them
on grounds of public policy, and that factors were exonerated, not because
they were mere servants, as had always been laid down (among others, by
himself in arguing Morse v. Slue), but because they were not within the
reason of the rule.

The reader who has followed the argument so far, will hardly need to be
convinced that this did not mean the adoption of the Praetor’s Edict.
There is further evidence at hand if required.

In the first place, as we have seen, there was a century of precedents
ending with Morse v. Slue, argued by Holt himself, in which the liability
of masters of ships, hoymen, carriers, &c. had been adjudicated. Morse
v. Slue is cited and relied on, and there is no hint of dissatisfaction
with the other cases. On the contrary, they furnished the examples of
bailees for reward exercising a public calling. The distinction between
bailees for reward and others is Chief Justice Popham’s; the latter
qualification (exercising a public calling) was also English, as has
partly appeared already, and as will be explained further on.

In the next place, the strict rule is not confined to nautae, caupones,
and stabularii, nor even to common carriers; but is applied to all bailees
for reward, exercising a public calling.

In the next place, the degree of responsibility is precisely that of
bailees in general, as worked out by the previous decisions; but quite
unlike and much more severe [199] than that imposed by the Roman law, as
others have observed. /1/

And, finally, the exemption from liability for acts of God or the public
enemy is characteristically English, as will be proved further on.

But it has been partially shown in this Lecture that the law of to-day has
made the carrier’s burden heavier than it was in the time of the Year
Books. Southcote’s Case, and the earlier authorities which have been
cited, all refer to a loss by robbery, theft, or trespass, and hold the
bailee liable, where, in theory at least, he has a remedy over. It was
with reference to such cases, as has been seen, that the rule arose,
although it is not improbable that it would have been applied to an
unexplained loss; the writ against innkeepers reads absque subtractionie
seu amissione custodire. In later times, the principle may have been
extended from loss by theft to loss by destruction. In Symons v. Darknoll
/2/ (4 Car. I.), already cited as decided on the authority of Southcote’s
Case, the goods were spoiled, not stolen, and probably had not even
perished in specie. Before this time, the old rule had become an arbitrary
precedent, followed according to its form with little thought of its true
intent.

The language of Coggs v. Bernard is, that “the law charges the person thus
intrusted to carry goods as against all events but acts of God and the
enemies of the king.” This was adopted by solemn decision in Lord
Mansfield’s time, and it is now settled that the common carrier “is liable
for all losses which do not fall within the excepted [200]
cases.” /1/ That is to say, he has become an insurer to that extent, not
only against the disappearance or destruction, but against all forms of
damage to the goods except as excepted above.

The process by which this came to pass has been traced above, but a few
words may be added here. The Year Books, even in dealing with the
destruction (as distinguished from the conversion) of chattels in the
hands of a bailee, always state his liability as based upon his fault,
although it must be admitted that the language is used alio intuitu. /2/ A
jettison, in tempest, seems to have been a good plea for a factor in the
time of Edward III.; /3/ but that cannot be relied on for an analogy. The
argument from the Marshal’s case /4/ is stronger. There it appears to have
been thought that burning of the prison was as good an excuse for an
escape as a release by alien enemies. This must refer to an accidental
fire, and would seem to imply that he was not liable in that event, if not
in fault. The writs in the Register against bailees to keep or carry
goods, all have the general allegation of negligence, and so do the older
precedents of declarations, so far as I have observed, whether stating the
custom of the realm or not. /5/ But a bailee was answerable for goods
wrongfully taken from him, as an innkeeper was for goods stolen from his
inn, irrespective of negligence. /6/

It is true that the Marshal’s case speaks of his negligent [201]
keeping when the prisoners were released by rebels, (although that was far
less likely to result from negligence, one would think, than a fire in the
prison,) and that after Lord Coke’s time negligence was alleged, although
the goods had been lost by wrongful taking. So the writ against innkeepers
is pro defectu hujusmodi hospitatorum. In these instances, neglect only
means a failure de facto to keep safely. As was said at a much later date,
“everything is a negligence in a carrier or hoyman that the law does not
excuse.” /1/ The allegation is simply the usual allegation of actions on
the case, and seems to have extended itself from the earlier declarations
for damage, when case supplanted detinue and the use of the former action
became universal. It can hardly have been immaterial to the case for which
it was first introduced. But the short reason for disbelieving that there
was any warrant in the old law for making the carrier an insurer against
damage is, that there seem to be no early cases in which bailees were held
to such a responsibility, and that it was not within the principle on
which they were made answerable for a loss by theft.

Having traced the process by which a common carrier has been made an
insurer, it only remains to say a word upon the origin of the admitted
exceptions from the risk assumed. It has been seen already how loss by the
public enemy came to be mentioned by Chief Justice Holt. It is the old
distinction taken in the Marshal’s case that there the bailee has no
remedy over.

With regard to the act of God, it was a general principle, not peculiar to
carriers nor to bailees, that a duty was [202] discharged if an act
of God made it impossible of performance. Lord Coke mentions the case of
jettison from a Gravesend barge, /1/ and another of a party bound to keep
and maintain sea-walls from overflowing, as subject to the same
limitation, /2/ and a similar statement as to contracts in general will be
found in the Year Books. /3/ It is another form of the principle which has
been laboriously reargued in our own day, that parties are excused from
the performance of a contract which has become impossible before breach
from the perishing of the thing, or from change of circumstances the
continued existence of which was the foundation of the contract, provided
there was no warranty and no fault on the part of the contractor. Whether
the act of God has now acquired a special meaning with regard to common
carriers may be left for others to consider.

It appears, from the foregoing evidence, that we cannot determine what
classes of bailees are subject to the strict responsibility imposed on
common carriers by referring to the Praetor’s Edict and then consulting
the lexicons under Nautoe, Caupones, or Stabularii. The question of
precedent is simply to what extent the old common law of bailment still
survives. We can only answer it by enumerating the decisions in which the
old law is applied; and we shall find it hard to bring them together under
a general principle. The rule in Southcote’s Case has been done away with
for bailees in general: that is clear. But it is equally clear that it has
not maintained itself, even within the limits of the public policy
invented by Chief Justice [203] Holt. It is not true to-day that all
bailees for reward exercising a public calling are insurers. No such
doctrine is applied to grain-elevators or deposit-vaults. /1/

How Lord Holt came to distinguish between bailees for reward and others
has been shown above. It is more pertinent here to notice that his further
qualification, exercising a public calling, was part of a protective
system which has passed away. One adversely inclined might say that it was
one of many signs that the law was administered in the interest of the
upper classes. It has been shown above that if a man was a common farrier
he could be charged for negligence without an assumpsit. The same judge
who threw out that intimation established in another case that he could be
sued if he refused to shoe a horse on reasonable request. /2/ Common
carriers and common innkeepers were liable in like case, and Lord Holt
stated the principle: “If a man takes upon him a public employment, he is
bound to serve the public as far as the employment extends, and for
refusal an action lies.” /3/ An attempt to apply this doctrine generally
at the present day would be thought monstrous. But it formed part of a
consistent scheme for holding those who followed useful callings up to the
mark. Another part was the liability of persons exercising a public
employment for loss or damage, enhanced in cases of bailment by what
remained of the rule in Southcote’s Case. The scheme has given way to more
liberal notions; but the disjecta membra still move.

Lord Mansfield stated his views of public policy in terms [204]
not unlike those used by Chief Justice Holt in Coggs v. Bernard, but
distinctly confines their application to common carriers. “But there is a
further degree of responsibility by the custom of the realm, that is, by
the common law; a carrier is in the nature of an insurer…. To prevent
litigation, collusion, and the necessity of going into circumstances
impossible to be unravelled, the law presumes against the carrier,
unless,” &c. /1/

At the present day it is assumed that the principle is thus confined, and
the discussion is transferred to the question who are common carriers. It
is thus conceded, by implication, that Lord Holt’s rule has been
abandoned. But the trouble is, that with it disappear not only the general
system which we have seen that Lord Holt entertained, but the special
reasons repeated by Lord Mansfield. Those reasons apply to other bailees
as well as to common carriers. Besides, hoymen and masters of ships were
not originally held because they were common carriers, and they were all
three treated as co-ordinate species, even in Coggs v. Bernard, where they
were mentioned only as so many instances of bailees exercising a public
calling. We do not get a new and single principle by simply giving a
single name to all the cases to be accounted for. If there is a sound rule
of public policy which ought to impose a special responsibility upon
common carriers, as those words are now understood, and upon no others, it
has never yet been stated. If, on the other hand, there are considerations
which apply to a particular class among those so designated,—for
instance, to railroads, who may have a private individual at their mercy,
or exercise a power too vast for the common welfare,—we do not prove
that the [205] reasoning extends to a general ship or a
public cab by calling all three common carriers.

If there is no common rule of policy, and common carriers remain a merely
empirical exception from general doctrine, courts may well hesitate to
extend the significance of those words. Furthermore, notions of public
policy which would not leave parties free to make their own bargains are
somewhat discredited in most departments of the law. /1/ Hence it may
perhaps be concluded that, if any new case should arise, the degree of
responsibility, and the validity and interpretation of any contract of
bailment that there may be, should stand open to argument on general
principles, and that the matter has been set at large so far as early
precedent is concerned.

I have treated of the law of carriers at greater length than is
proportionate, because it seems to me an interesting example of the way in
which the common law has grown up, and, especially, because it is an
excellent illustration of the principles laid down at the end of the first
Lecture. I now proceed to the discussion for the sake of which an account
of the law of bailment was introduced, and to which an understanding of
that part of the law is a necessary preliminary.

[206]

LECTURE VI. — POSSESSION.

POSSESSION is a conception which is only less important than contract. But
the interest attaching to the theory of possession does not stop with its
practical importance in the body of English law. The theory has fallen
into the hands of the philosophers, and with them has become a
corner-stone of more than one elaborate structure. It will be a service to
sound thinking to show that a far more civilized system than the Roman is
framed upon a plan which is irreconcilable with the a priori doctrines of
Kant and Hegel. Those doctrines are worked out in careful correspondence
with German views of Roman law. And most of the speculative jurists of
Germany, from Savigny to Ihering, have been at once professors of Roman
law, and profoundly influenced if not controlled by some form of Kantian
or post-Kantian philosophy. Thus everything has combined to give a special
bent to German speculation, which deprives it of its claim to universal
authority.

Why is possession protected by the law, when the possessor is not also an
owner? That is the general problem which has much exercised the German
mind. Kant, it is well known, was deeply influenced in his opinions upon
ethics and law by the speculations of Rousseau. Kant, Rousseau, and the
Massachusetts Bill of Rights agree that all men are born free and equal,
and one or the other branch of that declaration has afforded the answer to
the [207]
question why possession should be protected from that day to this. Kant
and Hegel start from freedom. The freedom of the will, Kant said, is the
essence of man. It is an end in itself; it is that which needs no further
explanation, which is absolutely to be respected, and which it is the very
end and object of all government to realize and affirm. Possession is to
be protected because a man by taking possession of an object has brought
it within the sphere of his will. He has extended his personality into or
over that object. As Hegel would have said, possession is the objective
realization of free will. And by Kant’s postulate, the will of any
individual thus manifested is entitled to absolute respect from every
other individual, and can only be overcome or set aside by the universal
will, that is, by the state, acting through its organs, the courts.

Savigny did not follow Kant on this point. He said that every act of
violence is unlawful, and seemed to consider protection of possession a
branch of protection to the person. /1/ But to this it was answered that
possession was protected against disturbance by fraud as well as by force,
and his view is discredited. Those who have been contented with humble
grounds of expediency seem to have been few in number, and have recanted
or are out of favor.

The majority have followed in the direction pointed out by Kant. Bruns, an
admirable writer, expresses a characteristic yearning of the German mind,
when he demands an internal juristic necessity drawn from the nature of
possession itself, and therefore rejects empirical reasons. /2/ He finds
the necessity he seeks in the freedom of the human will, which the whole
legal system does but recognize [208] and carry out.
Constraint of it is a wrong, which must be righted without regard to
conformity of the will to law, and so on in a Kantian vein. /1/ So Gans, a
favorite disciple of Hegel, “The will is of itself a substantial thing to
be protected, and this individual will has only to yield to the higher
common will.” /2/ So Puchta, a great master, “The will which wills itself,
that is, the recognition of its own personality, is to be protected.” /3/

The chief variation from this view is that of Windscheid, a writer now in
vogue. He prefers the other branch of the declaration in the Bill of
Rights. He thinks that the protection to possession stands on the same
grounds as protection against injuria, that every one is the equal of
every other in the state, and that no one shall raise himself over the
other. /4/ Ihering, to be sure, a man of genius, took an independent
start, and said that possession is ownership on the defensive; and that,
in favor of the owner, he who is exercising ownership in fact (i. e. the
possessor) is freed from the necessity of proving title against one who is
in an unlawful position. But to this it was well answered by Bruns, in his
later work, that it assumes the title of disseisors to be generally worse
than that of disseisees, which cannot be taken for granted, and which
probably is not true in fact. /5/

It follows from the Kantian doctrine, that a man in possession is to be
confirmed and maintained in it until he is put out by an action brought
for the purpose. Perhaps [209] another fact besides those which have been
mentioned has influenced this reasoning, and that is the accurate division
between possessory and petitory actions or defences in Continental
procedure. /1/ When a defendant in a possessory action is not allowed to
set up title in himself, a theorist readily finds a mystical importance in
possession.

But when does a man become entitled to this absolute protection? On the
principle of Kant, it is not enough that he has the custody of a thing. A
protection based on the sacredness of man’s personality requires that the
object should have been brought within the sphere of that personality,
that the free will should have unrestrainedly set itself into that object.
There must be then an intent to appropriate it, that is, to make it part
of one’s self, or one’s own.

Here the prevailing view of the Roman law comes in to fortify principle
with precedent. We are told that, of the many who might have the actual
charge or custody of a thing, the Roman law recognized as possessor only
the owner, or one holding as owner and on his way to become one by lapse
of time. In later days it made a few exceptions on practical grounds. But
beyond the pledgee and the sequester (a receiver appointed by the court)
these exceptions are unimportant and disputed. /2/ Some of the Roman
jurists state in terms that depositaries and borrowers have not possession
of the things intrusted to them. /3/ Whether the German interpretation of
the sources goes too far or not, it must be taken account of in the
examination of German theories.

[210]
Philosophy by denying possession to bailees in general cunningly adjusted
itself to the Roman law, and thus put itself in a position to claim the
authority of that law for the theory of which the mode of dealing with
bailees was merely a corollary. Hence I say that it is important to show
that a far more developed, more rational, and mightier body of law than
the Roman, gives no sanction to either premise or conclusion as held by
Kant and his successors.

In the first place, the English law has always had the good sense /1/ to
allow title to be set up in defence to a possessory action. In the assize
of novel disseisin, which which was a true possessory action, the
defendant could always rely on his title. /2/ Even when possession is
taken or kept in a way which is punished by the criminal law, as in case
of forcible entry and detainer, proof of title allows the defendant to
retain it, and in many cases has been held an answer to an action of
trespass. So in trespass for taking goods the defendant may set up title
in himself. There might seem to be a trace of the distinction in the
general rule, that the title cannot be tried in trespass quare clausum.
But this is an exception commonly put on the ground that the judgment
cannot change the property, as trespass for chattels or trover can. /3/
The rule that you cannot go into title in a possessory action presupposes
great difficulty in the proof, the probatio diabolica of the Canon law,
delays in the process, and importance of possession [211] ad interim,—all
of which mark a stage of society which has long been passed. In
ninety-nine cases out of a hundred, it is about as easy and cheap to prove
at least a prima facie title as it is to prove possession.

In the next place, and this was the importance of the last Lecture to this
subject, the common law has always given the possessory remedies to all
bailees without exception. The right to these remedies extends not only to
pledgees, lessees, and those having a lien, who exclude their bailor, but
to simple bailees, as they have been called, who have no interest in the
chattels, no right of detention as against the owner, and neither give nor
receive a reward. /1/

Modern German statutes have followed in the same path so far as to give
the possessory remedies to tenants and some others. Bruns says, as the
spirit of the Kantian theory required him to say, that this is a sacrifice
of principle to convenience. /2/ But I cannot see what is left of a
principle which avows itself inconsistent with convenience and the actual
course of legislation. The first call of a theory of law is that it should
fit the facts. It must explain the observed course of legislation. And as
it is pretty certain that men will make laws which seem to them convenient
without troubling themselves very much what principles are encountered by
their legislation, a principle which defies convenience is likely to wait
some time before it finds itself permanently realized.

It remains, then, to seek for some ground for the protection of possession
outside the Bill of Rights or the Declaration of Independence, which shall
be consistent with the larger scope given to the conception in modern law.

[212]
The courts have said but little on the subject. It was laid down in one
case that it was an extension of the protection which the law throws
around the person, and on that ground held that trespass quare clausum did
not pass to an assignee in bankruptcy. /1/ So it has been said, that to
deny a bankrupt trover against strangers for goods coming to his
possession after his bankruptcy would be “an invitation to all the world
to scramble for the possession of them”; and reference was made to
“grounds of policy and convenience.” /2/ I may also refer to the cases of
capture, some of which will be cited again. In the Greenland
whale-fishery, by the English custom, if the first striker lost his hold
on the fish, and it was then killed by another, the first had no claim;
but he had the whole if he kept fast to the whale until it was struck by
the other, although it then broke from the first harpoon. By the custom in
the Gallipagos, on the other hand, the first striker had half the whale,
although control of the line was lost. /3/ Each of these customs has been
sustained and acted on by the English courts, and Judge Lowell has decided
in accordance with still a third, which gives the whale to the vessel
whose iron first remains in it, provided claim be made before cutting in.
/4/ The ground as put by Lord Mansfield is simply that, were it not for
such customs, there must be a sort of warfare perpetually subsisting
between the adventurers. /5/ If courts adopt different rules on similar
facts, according to the point at which men will fight in the [213]
several cases, it tends, so far as it goes, to shake an a priori theory of
the matter.

Those who see in the history of law the formal expression of the
development of society will be apt to think that the proximate ground of
law must be empirical, even when that ground is the fact that a certain
ideal or theory of government is generally entertained. Law, being a
practical thing, must found itself on actual forces. It is quite enough,
therefore, for the law, that man, by an instinct which he shares with the
domestic dog, and of which the seal gives a most striking example, will
not allow himself to be dispossessed, either by force or fraud, of what he
holds, without trying to get it back again. /1/ Philosophy may find a
hundred reasons to justify the instinct, but it would be totally
immaterial if it should condemn it and bid us surrender without a murmur.
As long as the instinct remains, it will be more comfortable for the law
to satisfy it in an orderly manner, than to leave people to themselves. If
it should do otherwise, it would become a matter for pedagogues, wholly
devoid of reality.

I think we are now in a position to begin the analysis of possession. It
will be instructive to say a word in the first place upon a preliminary
question which has been debated with much zeal in Germany. Is possession a
fact or a right? This question must be taken to mean, by possession and
right, what the law means by those words, and not something else which
philosophers or moralists may mean by them; for as lawyers we have nothing
to do with either, except in a legal sense. If this had always been borne
steadily in mind, the question would hardly have been asked.

[214] A legal right is nothing but a permission to exercise certain
natural powers, and upon certain conditions to obtain protection,
restitution, or compensation by the aid of the public force. Just so far
as the aid of the public force is given a man, he has a legal right, and
this right is the same whether his claim is founded in righteousness or
iniquity. Just so far as possession is protected, it is as much a source
of legal rights as ownership is when it secures the same protection.

Every right is a consequence attached by the law to one or more facts
which the law defines, and wherever the law gives any one special rights
not shared by the body of the people, it does so on the ground that
certain special facts, not true of the rest of the world, are true of him.
When a group of facts thus singled out by the law exists in the case of a
given person, he is said to be entitled to the corresponding rights;
meaning, thereby, that the law helps him to constrain his neighbors, or
some of them, in a way in which it would not, if all the facts in question
were not true of him. Hence, any word which denotes such a group of facts
connotes the rights attached to it by way of legal consequences, and any
word which denotes the rights attached to a group of facts connotes the
group of facts in like manner.

The word “possession” denotes such a group of facts. Hence, when we say of
a man that he has possession, we affirm directly that all the facts of a
certain group are true of him, and we convey indirectly or by implication
that the law will give him the advantage of the situation. Contract, or
property, or any other substantive notion of the law, may be analyzed in
the same way, and should be treated in the same order. The only difference
is, that, [215] while possession denotes the facts and
connotes the consequence, property always, and contract with more
uncertainty and oscillation, denote the consequence and connote the facts.
When we say that a man owns a thing, we affirm directly that he has the
benefit of the consequences attached to a certain group of facts, and, by
implication, that the facts are true of him. The important thing to grasp
is, that each of these legal compounds, possession, property, and
contract, is to be analyzed into fact and right, antecedent and
consequent, in like manner as every other. It is wholly immaterial that
one element is accented by one word, and the other by the other two. We
are not studying etymology, but law. There are always two things to be
asked: first, what are the facts which make up the group in question; and
then, what are the consequences attached by the law to that group. The
former generally offers the only difficulties.

Hence, it is almost tautologous to say that the protection which the law
attaches by way of consequence to possession, is as truly a right in a
legal sense as those consequences which are attached to adverse holding
for the period of prescription, or to a promise for value or under seal.
If the statement is aided by dramatic reinforcement, I may add that
possessory rights pass by descent or devise, as well as by conveyance, /1/
and that they are taxed as property in some of the States. /2/

We are now ready to analyze possession as understood by the common law. In
order to discover the facts which constitute it, it will be found best to
study them at the moment when possession is first gained. For then they
must [216] all be present in the same way that both consideration and
promise must be present at the moment of making a contract. But when we
turn to the continuance of possessory rights, or, as is commonly said, the
continuance of possession, it will be agreed by all schools that less than
all the facts required to call those rights into being need continue
presently true in order to keep them alive.

To gain possession, then, a man must stand in a certain physical relation
to the object and to the rest of the world, and must have a certain
intent. These relations and this intent are the facts of which we are in
search.

The physical relation to others is simply a relation of manifested power
coextensive with the intent, and will need to have but little said about
it when the nature of the intent is settled. When I come to the latter, I
shall not attempt a similar analysis to that which has been pursued with
regard to intent as an element of liability. For the principles developed
as to intent in that connection have no relation to the present subject,
and any such analysis so far as it did not fail would be little more than
a discussion of evidence. The intent inquired into here must be overtly
manifested, perhaps, but all theories of the grounds on which possession
is protected would seem to agree in leading to the requirement that it
should be actual, subject, of course, to the necessary limits of legal
investigation.

But, besides our power and intent as towards our fellow-men, there must be
a certain degree of power over the object. If there were only one other
man in the world, and he was safe under lock and key in jail, the person
having the key would not possess the swallows that flew over the prison.
This element is illustrated by cases of capture, [217] although no doubt
the point at which the line is drawn is affected by consideration of the
degree of power obtained as against other people, as well as by that which
has been gained over the object. The Roman and the common law agree that,
in general, fresh pursuit of wild animals does not give the pursuer the
rights of possession. Until escape has been made impossible by some means,
another may step in and kill or catch and carry off the game if he can.
Thus it has been held that an action does not lie against a person for
killing and taking a fox which had been pursued by another, and was then
actually in the view of the person who had originally found, started, and
chased it. /1/ The Court of Queen’s Bench even went so far as to decide,
notwithstanding a verdict the other way, that when fish were nearly
surrounded by a seine, with an opening of seven fathoms between the ends,
at which point boats were stationed to frighten them from escaping, they
were not reduced to possession as against a stranger who rowed in through
the opening and helped himself. /2/ But the difference between the power
over the object which is sufficient for possession, and that which is not,
is clearly one of degree only, and the line may be drawn at different
places at different times on grounds just referred to. Thus we are told
that the legislature of New York enacted, in 1844, that any one who
started and pursued deer in certain counties of that State should be
deemed in possession of the game so long as he continued in fresh pursuit
of it, /3/ and to that extent modified the New York decisions just cited.
So, while Justinian decided that a wild beast so [218] badly wounded that
it might easily be taken must be actually taken before it belongs to the
captors, /1/ Judge Lowell, with equal reason, has upheld the contrary
custom of the American whalemen in the Arctic Ocean, mentioned above,
which gives a whale to the vessel whose iron first remains in it, provided
claim be made before cutting in. /2/

We may pass from the physical relation to the object with these few
examples, because it cannot often come into consideration except in the
case of living and wild things. And so we come to the intent, which is the
really troublesome matter. It is just here that we find the German jurists
unsatisfactory, for reasons which I have already explained. The best known
theories have been framed as theories of the German interpretation of the
Roman law, under the influence of some form of Kantian or post-Kantian
philosophy. The type of Roman possession, according to German opinion, was
that of an owner, or of one on his way to become owner. Following this
out, it was said by Savigny, the only writer on the subject with whom
English readers are generally acquainted, that the animus domini, or
intent to deal with the thing as owner, is in general necessary to turn a
mere physical detention into juridical possession. /3/ We need not stop to
inquire whether this modern form or the [Greek characters] (animus
dominantis, animus dominandi) of Theophilus /4/ and the Greek sources is
more exact; for either excludes, as the civilians and canonists do, and as
the [219]
German theories must, most bailees and termors from the list of
possessors. /1/

The effect of this exclusion as interpreted by the Kantian philosophy of
law, has been to lead the German lawyers to consider the intent necessary
to possession as primarily self-regarding. Their philosophy teaches them
that a man’s physical power over an object is protected because he has the
will to make it his, and it has thus become a part of his very self, the
external manifestation of his freedom. /2/ The will of the possessor being
thus conceived as self-regarding, the intent with which he must hold is
pretty clear: he must hold for his own benefit. Furthermore, the
self-regarding intent must go to the height of an intent to appropriate;
for otherwise, it seems to be implied, the object would not truly be
brought under the personality of the possessor.

The grounds for rejecting the criteria of the Roman law have been shown
above. Let us begin afresh. Legal duties are logically antecedent to legal
rights. What may be their relation to moral rights if there are any, and
whether moral rights are not in like manner logically the offspring of
moral duties, are questions which do not concern us here. These are for
the philosopher, who approaches the law from without as part of a larger
series of human manifestations. The business of the jurist is to make
known the content of the law; that is, to work upon it from within, or
logically, arranging and distributing it, in order, from its stemmum genus
to its infima species, so far as practicable. Legal duties then come
before legal [220] rights. To put it more broadly, and avoid the word
duty, which is open to objection, the direct working of the law is to
limit freedom of action or choice on the part of a greater or less number
of persons in certain specified ways; while the power of removing or
enforcing this limitation which is generally confided to certain other
private persons, or, in other words, a right corresponding to the burden,
is not a necessary or universal correlative. Again, a large part of the
advantages enjoyed by one who has a right are not created by the law. The
law does not enable me to use or abuse this book which lies before me.
That is a physical power which I have without the aid of the law. What the
law does is simply to prevent other men to a greater or less extent from
interfering with my use or abuse. And this analysis and example apply to
the case of possession, as well as to ownership.

Such being the direct working of the law in the case of possession, one
would think that the animus or intent most nearly parallel to its movement
would be the intent of which we are in search. If what the law does is to
exclude others from interfering with the object, it would seem that the
intent which the law should require is an intent to exclude others. I
believe that such an intent is all that the common law deems needful, and
that on principle no more should be required.

It may be asked whether this is not simply the animus domini looked at
from the other side. If it were, it would nevertheless be better to look
at the front of the shield than at the reverse. But it is not the same if
we give to the animus domini the meaning which the Germans give it, and
which denies possession to bailees in general. The intent to appropriate
or deal with a thing as owner can [221] hardly exist without
an intent to exclude others, and something more; but the latter may very
well be where there is no intent to hold as owner. A tenant for years
intends to exclude all persons, including the owner, until the end of his
term; yet he has not the animus domini in the sense explained. Still less
has a bailee with a lien, who does not even mean to use, but only to
detain the thing for payment. But, further, the common law protects a
bailee against strangers, when it would not protect him against the owner,
as in the case of a deposit or other bailment terminable at pleasure; and
we may therefore say that the intent even to exclude need not be so
extensive as would be implied in the animus domini. If a bailee intends to
exclude strangers to the title, it is enough for possession under our law,
although he is perfectly ready to give the thing up to its owner at any
moment; while it is of the essence of the German view that the intent must
not be relative, but an absolute, self-regarding intent to take the
benefit of the thing. Again, if the motives or wishes, and even the
intentions, most present to the mind of a possessor, were all
self-regarding, it would not follow that the intent toward others was not
the important thing in the analysis of the law. But, as we have seen, a
depositary is a true possessor under the common-law theory, although his
intent is not self-regarding, and he holds solely for the benefit of the
owner.

There is a class of cases besides those of bailees and tenants, which will
probably, although not necessarily, be decided one way or the other, as we
adopt the test of an intent to exclude, or of the animus domini. Bridges
v. Hawkesworth /1/ will serve as a starting-point. There, [222]
a pocket-book was dropped on the floor of a shop by a customer, and picked
up by another customer before the shopkeeper knew of it. Common-law judges
and civilians would agree that the finder got possession first, and so
could keep it as against the shopkeeper. For the shopkeeper, not knowing
of the thing, could not have the intent to appropriate it, and, having
invited the public to his shop, he could not have the intent to exclude
them from it. But suppose the pocket-book had been dropped in a private
room, how should the case be decided? There can be no animus domini unless
the thing is known of; but an intent to exclude others from it may be
contained in the larger intent to exclude others from the place where it
is, without any knowledge of the object’s existence.

In McAvoy v. Medina, /1/ a pocket-book had been left upon a barber’s
table, and it was held that the barber had a better right than the finder.
The opinion is rather obscure. It takes a distinction between things
voluntarily placed on a table and things dropped on the floor, and may
possibly go on the ground that, when the owner leaves a thing in that way,
there is an implied request to the shopkeeper to guard it, which will give
him a better right than one who actually finds it before him. This is
rather strained, however, and the court perhaps thought that the barber
had possession as soon as the customer left the shop. A little later, in a
suit for a reward offered to the finder of a pocket-book, brought by one
who discovered it where the owner had left it, on a desk for the use of
customers in a bank outside the teller’s counter, the same court said that
this was not the finding of a lost article, and that “the occupants of the
banking house, and not [223] the plaintiff, were the proper depositaries
of an article so left.” /1/ This language might seem to imply that the
plaintiff was not the person who got possession first after the defendant,
and that, although the floor of a shop may be likened to a street, the
public are to be deemed excluded from the shop’s desks, counters, and
tables except for the specific use permitted. Perhaps, however, the case
only decides that the pocket-book was not lost within the condition of the
offer.

I should not have thought it safe to draw any conclusion from wreck cases
in England, which are mixed up with questions of prescription and other
rights. But the precise point seems to have been adjudicated here. For it
has been held that, if a stick of timber comes ashore on a man’s land, he
thereby acquires a “right of possession” as against an actual finder who
enters for the purpose of removing it. /2/ A right of possession is said
to be enough for trespass; but the court seems to have meant possession by
the phrase, inasmuch as Chief Justice Shaw states the question to be which
of the parties had “the preferable claim, by mere naked possession,
without other title,” and as there does not seem to have been any right of
possession in the case unless there was actual possession.

In a criminal case, the property in iron taken from the bottom of a canal
by a stranger was held well laid in the canal company, although it does
not appear that the company knew of it, or had any lien upon it. /3/

[224]
The only intent concerning the thing discoverable in such instances is the
general intent which the occupant of land has to exclude the public from
the land, and thus, as a consequence, to exclude them from what is upon
it.

The Roman lawyers would probably have decided all these cases differently,
although they cannot be supposed to have worked out the refined theories
which have been built upon their remains. /1/

I may here return to the case of goods in a chest delivered under lock and
key, or in a bale, and the like. It is a rule of the criminal law, that,
if a bailee of such a chest or bale wrongfully sells the entire chest or
bale, he does not commit larceny, but if he breaks bulk he does, because
in the former case he does not, and in the latter he does, commit a
trespass. /2/ The reason sometimes offered is, that, by breaking bulk, the
bailee determines the bailment, and that the goods at once revest in the
possession of the bailor. This is, perhaps, an unnecessary, as well as
inadequate fiction. /3/ The rule comes from the Year Books, and the theory
of the Year Books was, that, although the chest was delivered to the
bailee, the goods inside of it were not, and this theory was applied to
civil as well as criminal cases. The bailor has the power and intent to
exclude the bailee from the goods, and therefore may be said to be in
possession of them as against the bailee. /4/

[225]
On the other hand, a case in Rhode Island /1/ is against the view here
taken. A man bought a safe, and then, wishing to sell it again, sent it to
the defendant, and gave him leave to keep his books in it until sold. The
defendant found some bank-notes stuck in a crevice of the safe, which
coming to the plaintiff’s ears he demanded the safe and the money. The
defendant sent back the safe, but refused to give up the money, and the
court sustained him in his refusal. I venture to think this decision
wrong. Nor would my opinion be changed by assuming, what the report does
not make perfectly clear, that the defendant received the safe as bailee,
and not as servant or agent, and that his permission to use the safe was
general. The argument of the court goes on the plaintiff’s not being a
finder. The question is whether he need be. It is hard to believe that, if
the defendant had stolen the bills from the safe while it was in the
owner’s hands, the property could not have been laid in the safe-owner,
/2/ or that the latter could not have maintained trover for them if
converted under those circumstances. Sir James Stephen seems to have drawn
a similar conclusion from Cartwright v. Green and Merry v. Green; /3/ but
I believe that no warrant for it can be found in the cases, and still less
for the reason suggested.

It will be understood, however, that Durfee v. Jones is perfectly
consistent with the view here maintained of the [226] general nature of
the necessary intent, and that it only touches the subordinate question,
whether the intent to exclude must be directed to the specific thing, or
may be even unconsciously included in a larger intent, as I am inclined to
believe.

Thus far, nothing has been said with regard to the custody of servants. It
is a well-known doctrine of the criminal law, that a servant who
criminally converts property of his master intrusted to him and in his
custody as servant, is guilty of theft, because he is deemed to have taken
the property from his master’s possession. This is equivalent to saying
that a servant, having the custody of his master’s property as servant,
has not possession of that property, and it is so stated in the Year
Books. /1/

The anomalous distinction according to which, if the servant receives the
thing from another person for his master, the servant has the possession,
and so cannot commit theft, /2/ is made more rational by the old cases.
For the distinction taken in them is, that, while the servant is in the
house or with his master, the latter retains possession, but if he
delivers his horse to his servant to ride to market, or gives him a bag to
carry to London, then the thing is out of the master’s possession and in
the servant’s. /3/ In this more intelligible form, the rule would not now
prevail. But one half of it, that a guest at a tavern has not possession
of the plate with which he is served, is no doubt still law, [227]
for guests in general are likened to servants in their legal position. /1/

There are few English decisions, outside the criminal on the question
whether a servant has possession. But the Year Books do not suggest any
difference between civil and criminal cases, and there is an almost
tradition of courts and approved writers that he has not, in any case. A
master has maintained trespass against a servant for converting cloth
which he was employed to sell, /2/ and the American cases go the full
length of the old doctrine. It has often been remarked that a servant must
be distinguished from a bailee.

But it may be asked how the denial of possession to servants can be made
to agree with the test proposed, and it will be said with truth that the
servant has as much the intent to exclude the world at large as a
borrower. The law of servants is unquestionably at variance with that
test; and there can be no doubt that those who have built their theories
upon the Roman law have been led by this fact, coupled with the Roman
doctrine as to bailees in general, to seek the formula of reconciliation
where they have. But, in truth, the exception with regard to servants
stands on purely historical grounds. A servant is denied possession, not
from any peculiarity of intent with regard to the things in his custody,
either towards his master or other people, by which he is distinguished [228]
from a depositary, but simply as one of the incidents of his status. It is
familiar that the status of a servant maintains many marks of the time
when he was a slave. The liability of the master for his torts is one
instance. The present is another. A slave’s possession was his owner’s
possession on the practical ground of the owner’s power over him, /1/ and
from the fact that the slave had no standing before the law. The notion
that his personality was merged in that of his family head survived the
era of emancipation.

I have shown in the first Lecture /2/ that agency arose out of the earlier
relation in the Roman law, through the extension pro hac vice to a freeman
of conceptions derived from that source. The same is true, I think, of our
own law, the later development of which seems to have been largely under
Roman influence. As late as Blackstone, agents appear under the general
head of servants, and the first precedents cited for the peculiar law of
agents were cases of master and servant. Blackstone’s language is worth
quoting: “There is yet a fourth species of servants, if they may be so
called, being rather in a superior, a ministerial capacity; such as
stewards, factors, and bailiffs: whom, however, the law considers as
servants pro tempore, with regard to such of their acts as affect their
master’s or employer’s property.” /3/

[229]
It is very true that in modern times many of the effects of either
relation—master and servant or principal and agent—may be
accounted for as the result of acts done by the master himself. If a man
tells another to make a contract in his name, or commands him to commit a
tort, no special conception is needed to explain why he is held; although
even in such cases, where the intermediate party was a freeman, the
conclusion was not reached until the law had become somewhat mature. But,
if the title Agency deserves to stand in the law at all, it must be
because some peculiar consequences are attached to the fact of the
relation. If the mere power to bind a principal to an authorized contract
were all, we might as well have a chapter on ink and paper as on agents.
But it is not all. Even in the domain of contract, we find the striking
doctrine that an undisclosed principal has the rights as well as the
obligations of a known contractor,—that he can be sued, and, more
remarkable, can sue on his agent’s contract. The first precedent cited for
the proposition that a promise to an agent may be laid as a promise to the
principal, is a case of master and servant. /1/

As my present object is only to show the meaning of the doctrine of
identification in its bearing upon the theory of possession, it would be
out of place to consider at any length how far that doctrine must be
invoked to explain the liability of principals for their agents’ torts, or
whether a more reasonable rule governs other cases than that applied where
the actor has a tolerably defined status as a [230] servant. I allow
myself a few words, because I shall not be able to return to the subject.

If the liability of a master for the torts of his servant had hitherto
been recognized by the courts as the decaying remnant of an obsolete
institution, it would not be surprising to find it confined to the cases
settled by ancient precedent. But such has not been the fact. It has been
extended to new relations by analogy, /1/ It exists where the principal
does not stand in the relation of paterfamilias to the actual wrong-doer.
/2/ A man may be held for another where the relation was of such a
transitory nature as to exclude the conception of status, as for the
negligence of another person’s servant momentarily acting for the
defendant, or of a neighbor helping him as a volunteer; /3/ and, so far as
known, no principal has ever escaped on the ground of the dignity of his
agent’s employment. /4/ The courts habitually speak as if the same rules
applied to brokers and other agents, as to servants properly so called.
/5/ Indeed, it [231] has been laid down in terms, that the
liability of employers is not confined to the case of servants, /1/
although the usual cases are, of course, those of menial servants, and the
like, who could not pay a large verdict.

On the other hand, if the peculiar doctrines of agency are anomalous, and
form, as I believe, the vanishing point of the servile status, it may well
happen that common sense will refuse to carry them out to their furthest
applications. Such conflicts between tradition and the instinct of justice
we may see upon the question of identifying a principal who knows the
truth with an agent who makes a false representation, in order to make out
a fraud, as in Cornfoot v. Fowke, /2/ or upon that as to the liability of
a principal for the frauds of his agent discussed in many English cases.
/3/ But, so long as the fiction which makes the root of a master’s
liability is left alive, it is as hopeless to reconcile the differences by
logic as to square the circle.

In an article in the American Law Review /4/ I referred [232]
to an expression of Godefroi with regard to agents; eadem est persona
domini et procuratoris. /1/ This notion of a fictitious unity of person
has been pronounced a darkening of counsel in a recent useful work. /2/
But it receives the sanction of Sir Henry Maine, /3/ and I believe that it
must stand as expressing an important aspect of the law, if, as I have
tried to show, there is no adequate and complete explanation of the modern
law, except by the survival in practice of rules which lost their true
meaning when the objects of them ceased to be slaves. There is no trouble
in understanding what is meant by saying that a slave has no legal
standing, but is absorbed in the family which his master represents before
the law. The meaning seems equally clear when we say that a free servant,
in his relations as such, is in many respects likened by the law to a
slave (not, of course, to his own detriment as a freeman). The next step
is simply that others not servants in a general sense may be treated as if
servants in a particular connection. This is the progress of ideas as
shown us by history; and this is what is meant by saying that the
characteristic feature which justifies agency as a title of the law is the
absorption pro hac vice of the agent’s legal individuality in that of his
principal.

If this were carried out logically, it would follow that an agent
constituted to hold possession in his principal’s name would not be
regarded as having the legal possession, or as entitled to trespass. But,
after what has been said, no opinion can be expressed whether the law
would go so far, unless it is shown by precedent. /4/ The nature of the
case [233]
will be observed. It is that of an agent constituted for the very point
and purpose of possession. A bailee may be an agent for some other
purpose. A free servant may be made a bailee. But the bailee holds in his
own as we say, following the Roman idiom, and the servant or agent holding
as such does not.

It would hardly be worth while, if space allowed, to search the books on
this subject, because of the great confusion of language to be found in
them. It has been said, for instance, in this connection, that a carrier
is a servant; /1/ while nothing can be clearer than that, while goods are
in custody, they are in his possession. /2/ So where goods remain in the
custody of a vendor, appropriation to the contract and acceptance have
been confounded with delivery. /3/ Our law has adopted the Roman doctrine,
/4/ that there may be a delivery, that is, a change of possession, by a
change in the character in which the vendor holds, but has not always
imitated the caution of the civilians with regard to what amounts to such
a change. /5/ Bailees are constantly spoken of as if they were agents to
possess,—a confusion made [234] easier by the fact
that they generally are agents for other purposes. Those cases which
attribute possession to a transferee of goods in the hands of a middleman,
/1/ without distinguishing whether the middleman holds in his own name or
the buyer’s, are generally right in the result, no doubt, but have added
to the confusion of thought upon the subject.

German writers are a little apt to value a theory of possession somewhat
in proportion to the breadth of the distinction which it draws between
juridical possession and actual detention; but, from the point of view
taken here, it will be seen that the grounds for denying possession and
the possessory remedies to servants and agents holding as such—if,
indeed, the latter have not those remedies—are merely historical,
and that the general theory can only take account of the denial as an
anomaly. It will also be perceived that the ground on which servants and
depositaries have been often likened to each other, namely, that they both
hold for the benefit of another and not for themselves, is wholly without
influence on our law, which has always treated depositaries as having
possession; and is not the true explanation of the Roman doctrine, which
did not decide either case upon that ground, and which decided each for
reasons different from those on which it decided the other.

It will now be easy to deal with the question of power as to third
persons. This is naturally a power coextensive with the intent. But we
must bear in mind that the law deals only or mainly with manifested facts;
and hence, when we speak of a power to exclude others, we mean no more
than a power which so appears in its manifestation. [235] A ruffian may be
within equal reach and sight when a child picks up a pocket-book; but if
he does nothing, the child has manifested the needful power as well as if
it had been backed by a hundred policemen. Thus narrowed, it might be
suggested that the manifestation of is only important as a manifestation
of intent. But the two things are distinct, and the former becomes
decisive when there are two contemporaneous and conflicting intents. Thus,
where two parties, neither having title, claimed a crop of corn adversely
to each other, and cultivated it alternately, and the plaintiff gathered
and threw it in small piles in the same field, where it lay for a week,
and then each party simultaneously began to carry it away, it was held the
plaintiff had not gained possession. /1/ But the first interference of the
defendant had been after the gathering into piles, the plaintiff would
probably have recovered. /2/ So where trustees possessed of a schoolroom
put in a schoolmaster, and he was afterwards dismissed, but the next day
(June 30) re-entered by force; on the fourth of July he was required by
notice to depart, and was not ejected until the eleventh; it was
considered that the schoolmaster never got possession as against the
trustees. /3/

We are led, in this connection, to the subject of the continuance of the
rights acquired by gaining possession. To gain possession, it has been
seen, there must be certain physical relations, as explained, and a
certain intent. It remains to be inquired, how far these facts must
continue [236] to be presently true of a person in order
that he may keep the rights which follow from their presence. The
prevailing view is that of Savigny. He thinks that there must be always
the same animus as at the moment of acquisition, and a constant power to
reproduce at will the original physical relations to the object. Every one
agrees that it is not necessary to have always a present power over the
thing, otherwise one could only possess what was under his hand. But it is
a question whether we cannot dispense with even more. The facts which
constitute possession are in their nature capable of continuing presently
true for a lifetime. Hence there has arisen an ambiguity of language which
has led to much confusion of thought. We use the word “possession,”
indifferently, to signify the presence of all the facts needful to gain
it, and also the condition of him who, although some of them no longer
exist, is still protected as if they did. Consequently it has been only
too easy to treat the cessation of the facts as the loss of the right, as
some German writers very nearly do. /1/

But it no more follows, from the single circumstance that certain facts
must concur in order to create the rights incident to possession, that
they must continue in order to keep those rights alive, than it does, from
the necessity of a consideration and a promise to create a right ex
contractu, that the consideration and promise must continue moving between
the parties until the moment of performance. When certain facts have once
been made manifest which confer a right, there is no general ground on
which the law need hold the right at an end except the manifestation of
some fact inconsistent with its continuance, [237] the reasons for
conferring the particular right have great weight in determining what
facts shall be to be so. Cessation of the original physical relations to
the object might be treated as such a fact; but it never has been, unless
in times of more ungoverned violence than the present. On the same
principle, it is only a question of tradition or policy whether a
cessation of the power to reproduce the original physical relations shall
affect the continuance of the rights. It does not stand on the same ground
as a new possession adversely taken by another. We have adopted the Roman
law as to animals ferae naturae, but the general tendency of our law is to
favor appropriation. It abhors the absence of proprietary or possessory
rights as a kind of vacuum. Accordingly, it has been expressly decided,
where a man found logs afloat and moored them, but they again broke loose
and floated away, and were found by another, that the first finder
retained the rights which sprung from his having taken possession, and
that he could maintain trover against the second finder, who refused to
give them up. /1/

Suppose that a finder of a purse of gold has left it in his country-house,
which is lonely and slightly barred, and he is a hundred miles away, in
prison. The only person within twenty miles is a thoroughly equipped
burglar at his front door, who has seen the purse through a window, and
who intends forthwith to enter and take it. The finder’s power to
reproduce his former physical relation to the gold is rather limited, yet
I believe that no one would say that his possession was at an end until
the burglar, by an overt [238] act, had manifested his power and intent to
exclude others from the purse. The reason for this is the same which has
been put with regard to the power to exclude at the moment of gaining
possession. The law deals, for the most part, with overt acts and facts
which can be known by the senses. So long as the burglar has not taken the
purse, he has not manifested his intent; and until he breaks through the
barrier which measures the present possessor’s power of excluding him, he
has not manifested his power. It may be observed further, that, according
to the tests adopted in this Lecture, the owner of the house has a present
possession in the strictest sense, because, although he has not the power
which Savigny says is necessary, he has the present intent and power to
exclude others.

It is conceivable that the common law should go so far as to deal with
possession in the same way as a title, and should hold that, when it has
once been acquired, rights are acquired which continue to prevail against
all the world but one, until something has happened sufficient to divest
ownership.

The possession of rights, as it is called, has been a fighting-ground for
centuries on the Continent. It is not uncommon for German writers to go so
far as to maintain that there may be a true possession of obligations;
this seeming to accord with a general view that possession and right are
in theory coextensive terms; that the mastery of the will over an external
object in general (be that object a thing or another will), when in accord
with the general will, and consequently lawful, is called right, when
merely de facto is possession. /1/ Bearing in mind what was [239]
said on the question whether possession was a fact or right, it will be
seen that such an antithesis between possession and right cannot be
admitted as a legal distinction. The facts constituting possession
generate rights as truly as do the facts which constitute ownership,
although the rights a mere possessor are less extensive than those of an
owner.

Conversely, rights spring from certain facts supposed to be true of the
person entitled to such rights. Where these facts are of such a nature
that they can be made successively true of different persons, as in the
case of the occupation of land, the corresponding rights may be
successively enjoyed. But when the facts are past and gone, such as the
giving of a consideration and the receiving of a promise, there can be no
claim to the resulting rights set up by any one except the party of whom
the facts were originally true—in the case supposed, the original
contractee,—because no one but the original contractee can fill the
situation from which they spring.

It will probably be granted by English readers, that one of the essential
constituent facts consists in a certain relation to a material object. But
this object may be a slave, as well as a horse; /1/ and conceptions
originated in this way may be extended by a survival to free services. It
is noticeable that even Bruns, in the application of his theory, does not
seem to go beyond cases of status and those where, in common language,
land is bound for the services in question, as it is for rent. Free
services being [240] so far treated like servile, even by our
law, that the master has a right of property in them against all the
world, it is only a question of degree where the line shall be drawn. It
would be possible to hold that, as one might be in possession of a slave
without title, so one might have all the rights of an owner in free
services rendered without contract. Perhaps there is something of that
sort to be seen when a parent recovers for the seduction of a daughter
over twenty-one, although there is no actual contract of service. /1/ So,
throughout the whole course of the canon law and in the early law of
England, rents were regarded as so far a part of the realty as to be
capable of possession and disseisin, and they could be recovered like land
by all assize. /2/

But the most important case of the so-called possession of rights in our
law, as in the Roman, occurs with regard to easements. An easement is
capable of possession in a certain sense. A man may use land in a certain
way, with the intent to exclude all others from using it in any way
inconsistent with his own use, but no further. If this be true possession,
however, it is a limited possession of land, not of a right, as others
have shown. But where an easement has been actually created, whether by
deed or prescription, although it is undoubtedly true that any possessor
of the dominant estate would be protected in its enjoyment, it has not
been so protected in the past on the ground that the easement was in
itself an object of possession, but by the survival of precedents
explained in a later [241] Lecture. Hence, to test the existence of a
mere possession of this sort which the law will protect, we will take the
case of a way used de facto for four years, but in which no easement has
yet been acquired, and ask whether the possessor of the quasi dominant
tenement would be protected in his use as against third persons. It is
conceivable that he should be, but I believe that he would not. /2/

The chief objection to the doctrine seems to be, that there is almost a
contradiction between the assertions that one man has a general power and
intent to exclude the world from dealing with the land, and that another
has the power to use it in a particular way, and to exclude the from
interfering with that. The reconciliation of the two needs somewhat
artificial reasoning. However, it should be borne in mind that the
question in every case is not what was the actual power of the parties
concerned, but what was their manifested power. If the latter stood thus
balanced, the law might recognize a kind of split possession. But if it
does not recognize it until a right is acquired, then the protection of a
disseisor in the use of an easement must still be explained by a reference
to the facts mentioned in the Lecture referred to.

The consequences attached to possession are substantially those attached
to ownership, subject to the question the continuance of possessory rights
which I have touched upon above. Even a wrongful possessor of a [242]
chattel may have full damages for its conversion by a stranger to the
title, or a return of the specific thing. /1/

It has been supposed, to be sure, that a “special property” was necessary
in order to maintain replevin /2/ or trover. /3/ But modern cases
establish that possession is sufficient, and an examination of the sources
of our law proves that special property did not mean anything more. It has
been shown that the procedure for the recovery of chattels lost against
one’s will, described by Bracton, like its predecessor on the Continent,
was based upon possession. Yet Bracton, in the very passage in which he
expressly makes that statement, uses a phrase which, but for the
explanation, would seem to import ownership,—”Poterit rem suam
petere.” /4/ The writs of later days used the same language, and when it
was objected, as it frequently was, to a suit by a bailee for a taking of
bona et catalla sua, that it should have been for bona in custodia sua
existentia, it was always answered that those in the Chancery would not
frame a writ in that form. /5/

The substance of the matter was, that goods in a man’s possession were his
(sua), within the meaning of the writ. But it was very natural to attempt
a formal reconciliation between that formal word and the fact by saying
that, although the plaintiff had not the general property in the [243]
chattels, yet he had a property as against strangers, /1/ or a special
property. This took place, and, curiously enough, two of the earliest
instances in which I have found the latter phrase used are cases of a
depositary, /2/ and a borrower. /3/ Brooke says that a wrongful taker “has
title against all but the true owner.” /4/ In this sense the special
property was better described as a “possessory property,” as it was, in
deciding that, in an indictment for larceny, the property could be laid in
the bailee who suffered the trespass. /5/

I have explained the inversion by which a bailee’s right of action against
third persons was supposed to stand on his responsibility over, although
in truth it was the foundation of that responsibility, and arose simply
from his possession. The step was short, from saying that bailees could
sue because they were answerable over, /6/ to saying that they had the
property as against strangers, or a special property, because they were
answerable over, /7/ and that they could sue because they had a special
property and were answerable over. /8/ And thus the notion that special
property meant something more than possession, and was a requisite to
maintaining an action, got into the law.

The error was made easier by a different use of the phrase in a different
connection. A bailee was in general liable for goods stolen from his
custody, whether he had a lien or not. But the law was otherwise as to a
[244]
pledgee, if he had kept the pledge with his own goods, and the two were
stolen together. /1/ This distinction was accounted for, at least in Lord
Coke’s time, by saying that the pledge was, in a sense, the pledgee’s own,
that he had a special property in it, and thus that the ordinary relation
of bailment did not exist, or that the undertaking was only to keep as his
own goods. /2/ The same expression was used in discussing the pledgee’s
right to assign the pledge, /3/ In this sense the term applied only to
pledges, but its significance in a particular connection was easily
carried over into the others in which it was used, with the result that
the special property which was requisite to maintain the possessory
actions was supposed to mean a qualified interest in the goods.

With regard to the legal consequences of possession, it only remains to
mention that the rules which have been laid down with regard to chattels
also prevail with regard to land. For although the plaintiff in ejectment
must recover on the strength of his own title as against a defendant in
possession, it is now settled that prior possession is enough if the
defendant stands on his possession alone Possession is of course
sufficient for trespass.5 And although the early remedy by assize was
restricted to those who had a technical seisin, this was for reasons which
do not affect the general theory.

Before closing I must say a word concerning ownership and kindred
conceptions. Following the order of analysis [245] which has been
pursued with regard to possession, the first question must be, What are
the facts to which the rights called ownership are attached as a legal
consequence? The most familiar mode of gaining ownership is by conveyance
from the previous owner. But that presupposes ownership already existing,
and the problem is to discover what calls it into being.

One fact which has this effect is first possession. The captor of wild
animals, or the taker of fish from the ocean, has not merely possession,
but a title good against all the world. But the most common mode of
getting an original and independent title is by certain proceedings, in
court or out of it, adverse to all the world. At one extreme of these is
the proceeding in rem of the admiralty, which conclusively disposes of the
property in its power, and, when it sells or condemns it, does not deal
with this or that man’s title, but gives a new title paramount to all
previous interests, whatsoever they may be. The other and more familiar
case is prescription, where a public adverse holding for a certain time
has a similar effect. A title by prescription is not a presumed conveyance
from this or owner alone, it extinguishes all previous and inconsistent
claims. The two coalesce in the ancient fine with proclamations where the
combined effect of the judgment and the lapse of a year and a day was to
bar claims. /1/

So rights analogous to those of ownership may be given by the legislature
to persons of whom some other set of facts is true. For instance, a
patentee, or one to whom the government has issued a certain instrument,
and who in fact has made a patentable invention.

[246] But what are the rights of ownership? They are substantially the
same as those incident to possession. Within the limits prescribed by
policy, the owner is allowed to exercise his natural powers over the
subject-matter uninterfered with, and is more or less protected in
excluding other people from such interference. The owner is allowed to
exclude all, and is accountable to no one. The possessor is allowed to
exclude all but one, and is accountable to no one but him. The great body
of questions which have made the subject of property so large and
important are questions of conveyancing, not necessarily or generally
dependent on ownership as distinguished from possession. They are
questions of the effect of not having an independent and original title,
but of coming in under a title already in existence, or of the modes in
which an original title can be cut up among those who come in under it.
These questions will be dealt with and explained where they belong, in the
Lectures on Successions.

[247]

LECTURE VII. — CONTRACT.—I. HISTORY.

The doctrine of contract has been so thoroughly remodelled to meet the
needs of modern times, that there is less here than elsewhere for
historical research. It has been so ably discussed that there is less room
here elsewhere for essentially new analysis. But a short of the growth of
modern doctrines, whether necessary or not, will at least be interesting,
while an analysis of their main characteristics cannot be omitted, and may
present some new features.

It is popularly supposed that the oldest forms of contract known to our
law are covenant and debt, and they are of early date, no doubt. But there
are other contracts still in use which, although they have in some degree
put on modern forms, at least suggest the question whether they were not
of equally early appearance.

One of these, the promissory oath, is no longer the foundation of any
rights in private law. It is used, but as mainly as a solemnity connected
with entering upon a public office. The judge swears that he will execute
justice according to law, the juryman that he will find his verdict
according to law and the evidence, the newly adopted citizen that he will
bear true faith and allegiance to the government of his choice.

But there is another contract which plays a more important part. It may,
perhaps, sound paradoxical to mention [248] the contract of
suretyship. Suretyship, nowadays, is only an accessory obligation, which
presupposes a principal undertaking, and which, so far as the nature of
the contract goes, is just like any other. But, as has been pointed out by
Laferriere, /1/ and very likely by earlier writers, the surety of ancient
law was the hostage, and the giving of hostages was by no means confined
to international dealings.

In the old metrical romance of Huon of Bordeaux, Huon, having killed the
son of Charlemagne, is required by the Emperor to perform various seeming
impossibilities as the price of forgiveness. Huon starts upon the task,
leaving twelve of his knights as hostages. /2/ He returns successful, but
at first the Emperor is made to believe that his orders have been
disobeyed. Thereupon Charlemagne cries out, “I summon hither the pledges
for Huon. I will hang them, and they shall have no ransom.” /3/ So, when
Huon is to fight a duel, by way of establishing the truth or falsehood of
a charge against him, each party begins by producing some of his friends
as hostages.

When hostages are given for a duel which is to determine the truth or
falsehood of an accusation, the transaction is very near to the giving of
similar security in the trial of a cause in court. This was in fact the
usual course of the Germanic procedure. It will be remembered that the
earliest appearance of law was as a substitute for the private feuds
between families or clans. But while a defendant who did not peaceably
submit to the jurisdiction of the court might be put outside the
protection of the law, so that any man might kill him at sight, there was
at first [249] no way of securing the indemnity to which
the plaintiff was entitled unless the defendant chose to give such
security. /1/

English customs which have been preserved to us are somewhat more
advanced, but one of the noticeable features in their procedure is the
giving of security at every step. All lawyers will remember a trace of
this in the fiction of John Doe and Richard Roe, the plaintiff’s pledges
to prosecute his action. But a more significant example is found in the
rule repeated in many of the early laws, that a defendant accused of a
wrong must either find security or go to prison. /2/ This security was the
hostage of earlier days, and later, when the actions for punishment and
for redress were separated from each other, became the bail of the
criminal law. The liability was still conceived in the same way as when
the bail actually put his own body into the power of the party secured.

One of Charlemagne’s additions to the Lex Salica speaks of a freeman who
has committed himself to the power of another by way of surety. /3/ The
very phrase is copied in the English laws of Henry I. /4/ We have seen
what this meant in the story of Huon of Bordeaux. The Mirror of Justices
/5/ says that King Canute used to judge the mainprisors according as the
principals when their principals not in judgment, but that King Henry I.
confined Canute’s rule to mainprisors who were consenting to the fact.

As late as the reign of Edward III., Shard, an English judge, after
stating the law as it still is, that bail are a prisoner’s [250]
keepers, and shall be charged if he escapes, observes, that some say that
the bail shall be hanged in his place. /1/ This was the law in the
analogous case of a jailer. /2/ The old notion is to be traced in the form
still given by modern writers for the undertaking of bail for felony. They
are bound “body for body,” /3/ and modern law-books find it necessary to
state that this does not make them liable to the punishment of the
principal offender if he does not appear, but only to a fine. /4/ The
contract also differed from our modern ideas in the mode of execution. It
was simply a solemn admission of liability in the presence of the officer
authorized to take it. The signature of the bail was not necessary, /5/
and it was not requisite that the person bailed should bind himself as a
party. /6/

But these peculiarities have been modified or done away with by statute,
and I have dwelt upon the case, not so much as a special form of contract
differing from all others as because the history of its origin shows one
of the first appearances of contract in our law. It is to be traced to the
gradual increase of faith in the honor of a hostage if the case calling
for his surrender should arrive, and to the consequent relaxation of
actual imprisonment. An illustration may be found in the parallel mode of
dealing with the prisoner himself. His bail, to whom his body is supposed
to be delivered, have a right to seize him at any time and anywhere, but
he is allowed to go at large until [251] surrendered. It will be noticed
that this form of contract, like debt as dealt with by the Roman law of
the Twelve Tables, and for the same motive, although by a different
process, looked to the body of the contracting party as the satisfaction.

Debt is another and more popular candidate for the honors of priority.
Since the time of Savigny, the first appearance of contract both in Roman
and German law has often been attributed to the case of a sale by some
accident remaining incomplete. The question does not seem to be of great
philosophical significance. For to explain how mankind first learned to
promise, we must go to metaphysics, and find out how it ever came to frame
a future tense. The nature of the particular promise which was first
enforced in a given system can hardly lead to any truth of general
importance. But the history of the action of debt is instructive, although
in a humbler way. It is necessary to know something about it in order to
understand the enlightened rules which make up the law of contract at the
present time.

In Glanvill’s treatise the action of debt is found already to be one of
the well-known remedies. But the law of those days was still in a somewhat
primitive state, and it will easily be imagined that a form of action
which goes back as far as that was not founded on any very delicate
discriminations. It was, as I shall try to show directly, simply the
general form in which any money claim was collected, except unliquidated
claims for damages by force, for which there was established the equally
general remedy of trespass.

It has been thought that the action was adopted from the then more
civilized procedure of the Roman law. A [252] natural opinion,
seeing that all the early English law-writers adopt their phraseology and
classification from Rome. Still it seems much more probable that the
action is of pure German descent. It has the features of the primitive
procedure which is found upon the Continent, as described by Laband. /1/

The substance of the plaintiff’s claim as set forth in the writ of debt is
that the defendant owes him so much and wrongfully withholds it. It does
not matter, for a claim framed like that, how the defendant’s duty arises.
It is not confined to contract. It is satisfied if there is a duty to pay
on any ground. It states a mere conclusion of law, not the facts upon
which that conclusion is based, and from which the liability arises. The
old German complaint was, in like manner, “A owes me so much.”

It was characteristic of the German procedure that the defendant could
meet that complaint by answering, in an equally general form, that he did
not owe the plaintiff. The plaintiff had to do more than simply allege a
debt, if he would prevent the defendant from escaping in that way. In
England, if the plaintiff had not something to show for his debt, the
defendant’s denial turned him out of court; and even if he had, he was
liable to be defeated by the defendant’s swearing with some of his friends
to back him that he owed nothing. The chief reason why debt was supplanted
for centuries by a later remedy, assumpsit, was the survival of this relic
of early days.

Finally, in England as in Germany, debt for the detention of money was the
twin brother of the action brought for wrongfully withholding any other
kind of chattel. The gist of the complaint in either case was the same.

It seems strange that this crude product of the infancy of law should have
any importance for us at the present time. Yet whenever we trace a leading
doctrine of substantive law far enough back, we are very likely to find
some forgotten circumstance of procedure at its source. Illustrations of
this truth have been given already. The action of debt and the other
actions of contract will furnish others. Debt throws most light upon the
doctrine of consideration.

[253]
Our law does not enforce every promise which a man may make. Promises made
as ninety-nine promises out of a hundred are, by word of mouth or simple
writing, are not binding unless there is a consideration for them. That
is, as it is commonly explained, unless the promisee has either conferred
a benefit on the promisor, or incurred a detriment, as the inducement to
the promise.

It has been thought that this rule was borrowed from Roman law by the
Chancery, and, after undergoing some modification there, passed into the
common law.

But this account of the matter is at least questionable. So far as the use
of words goes, I am not aware that consideration is distinctly called
cause before the reign of Elizabeth; in the earlier reports it always
appears as quid pro quo. Its first appearance, so far as I know, is in
Fleta’s account of the action of debt, /1/ and although I am inclined to
believe that Fleta’s statement is not to be trusted, a careful
consideration of the chronological order of the cases in the Year Books
will show, I think, that the doctrine was fully developed in debt before
any mention of it in equity can be found. One of the earliest [254]
references to what a promisor was to have for his undertaking was in the
action of assumpsit. /1/ But the doctrine certainly did not originate
there. The first mention of consideration in connection with equity which
I have seen is in the form of quid pro quo, /2/ and occurs after the
requirement had been thoroughly established in debt. /3/

The single fact that a consideration was never required for contracts
under seal, unless Fleta is to be trusted against the great weight of
nearly contemporaneous evidence, goes far to show that the rule cannot
have originated on grounds of policy as a rule of substantive law. And
conversely, the coincidence of the doctrine with a peculiar mode of
procedure points very strongly to the probability that the peculiar
requirement and the peculiar procedure were connected. It will throw light
on the question to put together a few undisputed facts, and to consider
what consequences naturally followed. It will therefore be desirable to
examine the action of debt a little further. But it is only fair to admit,
at the outset, that I offer the explanation which follows with great
hesitation, and, I think, with a full appreciation of the objections which
might be urged.

It was observed a moment ago, that, in order to recover against a
defendant who denied his debt, the plaintiff had to show something for it;
otherwise he was turned over to the limited jurisdiction of the spiritual
tribunals. /4/ This requirement did not mean evidence in the modern sense.
It meant simply that he must maintain his cause in one of the ways then
recognized by law. These were three, the [255] duel, a writing, and
witnesses. The duel need not be discussed, as it soon ceased to be used in
debt, and has no bearing on what I have to say. Trial by writing and by
witnesses, on the other hand, must both be carefully studied. It will be
convenient to consider the latter first and to find out what these
witnesses were.

One thing we know at the start; they were not witnesses as we understand
the term. They were not produced before a jury for examination and
cross-examination, nor did their testimony depend for its effect on being
believed by the court that heard it. Nowadays, a case is not decided by
the evidence, but by a verdict, or a finding of facts, followed by a
judgment. The oath of a witness has no effect unless it is believed. But
in the time of Henry II. our trial by jury did not exist. When an oath was
allowed to be sworn it had the same effect, whether it was believed or
not. There was no provision for sifting it by a second body. In those
cases where a trial by witnesses was possible, if the party called on to
go forward could find a certain number of men who were willing to swear in
a certain form, there was an end of the matter.

Now this seems like a more primitive way of establishing a debt than the
production of the defendant’s written acknowledgement, and it is material
to discover its origin.

The cases in which this mode of trial was used appear from the early books
and reports to have been almost wholly confined to claims arising out of a
sale or loan. And the question at once occurs, whether we are not upon
traces of an institution which was already ancient when Glanvill wrote.
For centuries before the Conquest Anglo-Saxon law /1/ had required the
election of a certain [256] number of official witnesses, two or three
of whom were to be called in to every bargain of sale. The object for
which these witnesses were established is not commonly supposed to have
been the proof of debts. They go back to a time when theft and similar
offences were the chief ground of litigation, and the purpose for which
they were appointed was to afford a means of deciding whether a person
charged with having stolen property had come by it rightfully or not. A
defendant could clear himself of the felony by their oath that he had
bought or received the thing openly in the way appointed by law.

Having been present at the bargain, the witnesses were able to swear to
what they had seen and heard, if any question arose between the parties.
Accordingly, their use was not confined to disposing of a charge of
felony. But that particular service identifies the transaction witnesses
of the Saxon period. Now we know that the use of these witnesses did not
at once disappear under Norman influence. They are found with their old
function in the laws of William the Conqueror. /1/ The language of
Glanvill seems to prove that they were still known under Henry II. He says
that, if a purchaser cannot summon in the man from whom he bought, to
warrant the property to him and defend the suit, (for if he does, the
peril is shifted to the seller,) then if the purchaser has sufficient
proof of his having lawfully bought the thing, de legittimo marcatu suo,
it will clear him of felony. But if he have not sufficient suit, he will
be in danger. /2/ This is the law of William over again. It follows that
purchasers still used the transaction witnesses.

[257]
But Glanvill also seems to admit the use of witness to establish debts.
/1/ As the transaction witnesses were formerly available for this purpose,
I see no reason to doubt that they still were, and that he is speaking of
them here also. /2/ Moreover, for a long time after Henry II., whenever an
action was brought for a debt of which there was no written evidence, the
plaintiff, when asked what he had to show for it, always answered “good
suit,” and tendered his witnesses, who were sometimes examined by the
court. /3/ I think it is not straining the evidence to infer that the
“good suit” of the later reports was the descendant of the Saxon
transaction witnesses, as it has been shown that Glanvill’s secta was. /4/

Assuming this step in the argument to have been taken, it will be well to
recall again for a moment the original nature of the witness oath. It was
confined to facts within the witnesses’ knowledge by sight and hearing.
But as the purposes for which witnesses were provided only required their
presence when property changed hands, the principal case in which they
could be of service between the parties [258] to a bargain was
when a debt was claimed by reason of the delivery of property. The purpose
did not extend to agreements which were executory on both sides, because
there no question of theft could arise. And Glanvill shows that in his
time the King’s Court did not enforce such agreements. /1/ Now, if the
oath of the secta could only be used to establish a debt where the
transaction witnesses could have sworn, it will be seen, readily enough,
how an accident of procedure may have led to a most important rule of
substantive law.

The rule that witnesses could only swear to facts within their knowledge,
coupled with the accident that these witnesses were not used in
transactions which might create a debt, except for a particular fact,
namely, the delivery of property, together with the further accident that
this delivery was quid pro quo, was equivalent to the rule that, when a
debt was proved by witnesses there must be quid pro quo. But these debts
proved by witnesses, instead of by deed are what we call simple contract
debts, and thus beginning with debt, and subsequently extending itself to
other contracts, is established our peculiar and most important doctrine
that every simple contract must have a consideration. This was never the
law as to debts or contracts proved in the usual way by the defendant’s
seal, and the fact that it applied only to obligations which were formerly
established by a procedure of limited use, [259] goes far to show
that the connection with procedure was not accidental.

The mode of proof soon changed, but as late as the reign of Queen
Elizabeth we find a trace of this original connection. It is said, “But
the common law requires that there should be a new cause (i. e.
consideration), whereof the country may have intelligence or knowledge for
the trial of it, if need be, so that it is necessary for the Public-weal.”
/1/ Lord Mansfield showed his intuition of the historical grounds of our
law when he said, “I take it that the ancient notion about the want of
consideration was for the sake of evidence only; for when it is reduced
into writing, as in covenants, specialties, bonds, etc., there was no
objection to the want of consideration.” /2/

If it should be objected that the preceding argument is necessarily
confined to debt, whereas the requirement of consideration applies equally
to all simple contracts, the answer is, that in all probability the rule
originated with debt, and spread from debt to other contracts.

But, again, it may be asked whether there were no other contracts proved
by witness except those which have been mentioned. Were there no contracts
proved in that way to which the accidental consideration was wanting? To
this also there is an easy answer. The contracts enforced by the civil
courts, even as late as Henry II., were few and simple. The witness
procedure was no doubt broad enough for all the contracts which were made
in early times. Besides those of sale, loan, and the like, which have been
mentioned, I find but two contractual [260] obligations. These
were the warranties accompanying a sale and suretyship which was referred
to at the beginning of the Lecture. Of the former, warranty of title was
rather regarded as an obligation raised by the law out of the relation of
buyer and seller than as a contract. Other express warranties were matters
within the knowledge of the transaction witnesses, and were sworn to by
them in Saxon times. /1/

But in the Norman period warranty is very little heard of, except with
regard to land, and then it was decided by the duel. It so wholly
disappeared, except where it was embodied in a deed, that it can have had
no influence upon the law of consideration. I shall therefore assume,
without more detail, that it does not bear upon the case.

Then as to the pledge or surety. He no longer paid with his body, unless
in very exceptional cases, but his liability was translated into money,
and enforced in an action of debt. This time-honored contract, like the
other debts of Glanvill’s time, could be established by witness without a
writing, /2/ and in this case there was not such a consideration, such a
benefit to the promisor, as the law required when the doctrine was first
enunciated. But this also is unimportant, because his liability on the
oath of witness came to an end, as well as that of the warrantor, before
the foundations were laid for the rule which I am seeking to explain. A
writing soon came to be required, as will be seen in a moment.

The result so far is, that the only action of contract in Glanvill’s time
was debt, that the only debts recovered [261] without writing were
those which have been described, and that the only one of these for which
there was not quid pro quo ceased to be recoverable in that way by the
reign of Edward III.

But great changes were beginning in the reign of Henry II. More various
and complex contracts soon came to be enforced. It may be asked, Why was
not the scope of the witness oath enlarged, or, if any better proof were
forthcoming, why was not the secta done away with, and other oral
testimony admitted? In any event, what can the law of Henry II.’s time
have to do with consideration, which not heard of until centuries later?

It is manifest that a witness oath, which disposes of a case by the simple
fact that it is sworn, is not a satisfactory mode of proof. A written
admission of debt produced in court, and sufficiently identified as
issuing from the defendant, is obviously much better. The only weak point
about a writing is the means of identifying it as the defendant’s, and
this difficulty disappeared as soon as the use of seals became common.
This had more or less taken place in Glanvill’s time, and then all that a
party had to do was to produce the writing and satisfy the court by
inspection that the impression on the wax fitted his opponent’s seal. /1/
The oath of the secta could always be successfully met by wager of law,
/2/ that is, by a counter oath the part of the defendant, with the same or
double the number of fellow-swearers produced by the plaintiff. But a
writing proved to be the defendant’s could not be contradicted. [262]
/1/ For if a man said he was bound, he was bound. There was no question of
consideration, because there was as yet no such doctrine. He was equally
bound if he acknowledged all obligation in any place having a record, such
as the superior courts, by which his acknowledgment could be proved.
Indeed, to this day some securities are taken simply by an oral admission
before the clerk of a court noted by him in his papers. The advantage of
the writing was not only that it furnished better proof in the old cases,
but also that it made it possible to enforce obligations for which there
would otherwise have been no proof at all.

What has been said sufficiently explains the preference of proof by
writing to proof by the old-fashioned witness oath. But there were other
equally good reasons why the latter should not be extended beyond its
ancient limits. The transaction witnesses were losing their statutory and
official character. Already in Glanvill’s time the usual modes of proving
a debt were by the duel or by writing. /2/ A hundred years later Bracton
shows that the secta had degenerated to the retainers and household of the
party, and he says that their oath raises but a slight presumption. /3/

Moreover, a new mode of trial was growing up, which, although it was not
made use of in these cases /4/ for a good while, must have tended to
diminish the estimate set on the witness oath by contrast. This was the
beginning of our trial by jury. It was at first an inquest of the
neighbors [263] most likely to know about a disputed matter
of fact. They spoke from their own knowledge, but they were selected by an
officer of the court instead of by the interested party, and were intended
to be impartial. /1/ Soon witnesses were summoned before them, not, as of
old, to the case by their oath, but to aid the inquest to find a verdict
by their testimony. With the advent of this enlightened procedure, the
secta soon ceased to decide the case, and it may well be asked why it did
not disappear and leave no traces.

Taking into account the conservatism of the English law, and the fact
that, before deeds came in, the only debts for which there had been a
remedy were debts proved by the transaction witnesses, it would not have
been a surprise to find the tender of suit persisting in those cases. But
there was another reason still more imperative. The defence in debt where
there was no deed was by wager of law. /2/ A section of Magna Charta was
interpreted to prohibit a man’s being put to his law on the plaintiff’s
own statement without good witness. /3/ Hence, the statute required
witness—that is, the secta—in every case of debt where the
plaintiff did not rely upon a writing. Thus it happened that suit
continued to be tendered in those cases where it had been of old, /4/ and
as the defendant, if he did not admit the debt in such cases, always waged
his law, it was long before the inquest got much foothold.

To establish a debt which arose merely by way of promise or
acknowledgment, and for which there had formerly [264] been no mode of
trial provided, you must have a writing, the new form of proof which
introduced it into the law. The rule was laid down, “by parol the party is
not obliged.” /1/ But the old debts were not conceived of as raised by a
promise. /2/ They were a “duty” springing from the plaintiff’s receipt of
property, a fact which could be seen and sworn to. In these cases the old
law maintained and even extended itself a little by strict analogy.

But the undertaking of a surety, in whatever form it was clothed, did not
really arise out of any such fact. It had become of the same nature as
other promises, and it was soon doubted whether it should not be proved by
the same evidence. /3/ By the reign of Edward III., it was settled that a
deed was necessary, /4/ except where the customs of particular cities had
kept the old law in force. /5/

This reign may be taken as representing the time when the divisions and
rules of procedure were established which have lasted until the present
day. It is therefore worth while to repeat and sum up the condition of the
law at that time.

It was still necessary that the secta should be tendered in every action
of debt for which no writing was produced. For this, as well as for the
other reasons which have been mentioned, the sphere of such actions was
not materially enlarged beyond those cases which had formerly been
established by the witness-oath. As suretyship was no [265]
longer one of these, they became strictly limited to cases in which the
debt arose from the receipt of a quid pro quo. Moreover there was no other
action of contract which could be maintained without a writing. New
species of contracts were now enforced by an action of covenant, but there
a deed was always necessary. At the same time the secta had shrunk to a
form, although it was still argued that its function was more important in
contract than elsewhere. It could no longer be examined before the court.
/1/ It was a mere survival, and the transaction witness had ceased to be
an institution. Hence, the necessity of tendering the witness oath did not
fix the limit of debt upon simple contract except by tradition, and it is
not surprising to find that the action was slightly extended by analogy
from its scope in Glanvill’s time.

But debt remained substantially at the point which I have indicated, and
no new action available for simple contracts was introduced for a century.
In the mean time the inversion which I have explained took place, and what
was an accident of procedure had become a doctrine of substantive law. The
change was easy when the debts which could be enforced without deed all
sprung from a benefit to the debtor.

The influence of the Roman law, no doubt, aided in bringing about this
result. It will be remembered that in the reign of Henry II. most simple
contracts and debts for which there was not the evidence of deed or
witness were left to be enforced by the ecclesiastical courts, so far as
their jurisdiction extended. /2/ Perhaps it was this circumstance [266]
which led Glanvill and his successors to apply the terminology of the
civilians to common-law debts. But whether he borrowed it from the
ecclesiastical courts, or went directly to the fountain-head, certain it
is that Glanvill makes use of the classification and technical language of
the Corpus Juris throughout his tenth book.

There were certain special contracts in the Roman system called real,
which bound the contractor either to return a certain thing put into his
hands by the contractee, as in a case of lease or loan, or to deliver
other articles of the same kind, as when grain, oil, or money was lent.
This class did not correspond, except in the most superficial way, with
the common-law debts. But Glanvill adopted the nomenclature, and later
writers began to draw conclusions from it. The author of Fleta, a writer
by no means always intelligent in following and adopting his predecessors’
use of the Roman law, /1/ says that to raise a debt there must be not only
a certain thing promised, but a certain thing promised in return. /2/

If Fleta had confined his statement to debts by simple contract, it might
well have been suggested by the existing state of the law. But as he also
required a writing and a seal, in addition to the matter given or promised
in return, the doctrine laid down by him can hardly have prevailed at any
time. It was probably nothing more than a slight vagary of reasoning based
upon the Roman elements which he borrowed from Bracton.

[267]
It only remains to trace the gradual appearance of consideration in the
decisions. A case of the reign of Edward III. /1/ seems to distinguish
between a parol obligation founded on voluntary payments by the obligee
and one founded on a payment at the obligor’s request. It also speaks of
the debt or “duty” in that case as arising by cause of payments. Somewhat
similar language is used in the next reign. /2/ So, in the twelfth year of
Henry IV., /3/ there is an approach to the thought: “If money is promised
to a man for making a release, and he makes the release, he will have a
good action of debt in the matter.” In the next reign /4/ it was decided
that, in such a case, the plaintiff could not recover without having
executed the release, which is explained by the editor on the ground that
ex nudo pacto non oritur actio. But the most important fact is, that from
Edward I. to Henry VI. we find no case where a debt was recovered, unless
a consideration had in fact been received.

Another fact to be noticed is, that since Edward III. debts arising from a
transaction without writing are said to arise from contract, as
distinguished from debts arising from an obligation. /5/ Hence, when
consideration was required as such, it was required in contracts not under
seal, whether debts or not. Under Henry VI. quid pro quo became a
necessity in all such contracts. In the third year of that reign /6/ it
was objected to au action upon an [268] assumpsit for not
building a mill, that it was not shown what the defendant was to have for
doing it. In the thirty-sixth year of the same reign (A.D. 1459), the
doctrine appears full grown, and is assumed to be familiar. /1/

The case turned upon a question which was debated for centuries before it
was settled, whether debt would lie for a sum of money promised by the
defendant to the plaintiff if he would marry the defendant’s daughter. But
whereas formerly the debate had been whether the promise was not so far
incident to the marriage that it belonged exclusively to the jurisdiction
of the spiritual courts, it now touched the purely mundane doubt whether
the defendant had had quid pro quo.

It will be remembered that the fact formerly sworn to by the transaction
witnesses was a benefit to the defendant, namely, a delivery of the things
sold or the money lent to him. Such cases, also, offer the most obvious
form of consideration. The natural question is, what the promisor was to
have for his promise. /2/ It is only by analysis that the supposed policy
of the law is seen to be equally satisfied by a detriment incurred by the
promisee. It therefore not unnaturally happened that the judges, when they
first laid down the law that there must be quid pro quo, were slow to
recognize a detriment to the contractee as satisfying the requirement
which had been laid down. In the case which I have mentioned some of the
judges were inclined to hold that getting rid of his daughter was a
sufficient benefit to the defendant to make him a debtor for the money
which he promised; and there was even some hint of the opinion, that
marrying the lady was a [269] consideration, because it was a detriment
to the promisee. /1/ But the other opinion prevailed, at least for a time,
because the defendant had had nothing from the plaintiff to raise a debt.
/2/

So it was held that a service rendered to a third person upon the
defendant’s request and promise of a reward would not be enough, /3/
although not without strong opinions to the contrary, and for a time the
precedents were settled. It became established law that an action of debt
would only lie upon a consideration actually received by and enuring to
the benefit of the debtor.

It was, however, no peculiarity of either the action or contract of debt
which led to this view, but the imperfectly developed theory of
consideration prevailing between the reigns of Henry VI. and Elizabeth.
The theory the same in assumpsit, /4/ and in equity. /5/ Wherever
consideration was mentioned, it was always as quid pro quo, as what the
contractor was to have for his contract.

Moreover, before consideration was ever heard of, debt was the
time-honored remedy on every obligation to pay money enforced by law,
except the liability to damages for a wrong. /6/ It has been shown already
that a surety could be sued in debt until the time of Edward III. without
a writing, yet a surety receives no benefit from the dealing with his
principal. For instance, if a man sells corn to A, [270] and B says, “I will
pay if A does not,” the sale does B no good so far as appears by the terms
of the bargain. For this reason, debt cannot now be maintained against a
surety in such a case.

It was not always so. It is not so to this day if there is an obligation
under seal. In that case, it does not matter how the obligation arose, or
whether there was any consideration for it or not. But a writing was a
more general way of establishing a debt in Glanvill’s time than witness,
and it is absurd to determine the scope of the action by considering only
a single class of debts enforced by it. Moreover, a writing for a long
time was only another, although more conclusive, mode of proof. The
foundation of the action was the same, however it was proved. This was a
duty or “duity” /1/ to the plaintiff, in other words, that money was due
him, no matter how, as any one may see by reading the earlier Year Books.
Hence it was, that debt lay equally upon a judgment, /2/ which established
such a duty by matter of record, or upon the defendant’s admission
recorded in like manner. /3/

To sum up, the action of debt has passed through three stages. At first,
it was the only remedy to recover money due, except when the liability was
simply to pay damages for a wrongful act. It was closely akin to—indeed
it was but a branch of—the action for any form of personal property
which the defendant was bound by contract or otherwise to hand over to the
plaintiff. /4/ If there was a contract to pay money, the only question was
how you [271] could prove it. Any such contract, which could be proved by
any of the means known to early law, constituted a debt. There was no
theory of consideration, and therefore, of course, no limit to either the
action or the contract based upon the nature of the consideration
received.

The second stage was when the doctrine of consideration was introduced in
its earlier form of a benefit to the promisor. This applied to all
contracts not under seal while it prevailed, but it was established while
debt was the only action for money payable by such contracts. The
precedents are, for the most part, precedents in debt.

The third stage was reached when a larger view was taken of consideration,
and it was expressed in terms of detriment to the promisee. This change
was a change in substantive law, and logically it should have been applied
throughout. But it arose in another and later form of action, under
circumstances peculiarly connected with that action, as will be explained
hereafter. The result was that the new doctrine prevailed in the new
action, and the old in the old, and that what was really the anomaly of
inconsistent theories carried out side by side disguised itself in the
form of a limitation upon the action of debt. That action did not remain,
as formerly, the remedy for all binding contracts to pay money, but, so
far as parol contracts were concerned, could only be used where the
consideration was a benefit actually received by the promisor. With regard
to obligations arising in any other way, it has remained unchanged.

I must now devote a few words to the effect upon our law of the other mode
of proof which I have mentioned. I mean charters. A charter was simply a
writing. As few could write, most people had to authenticate a document [272]
in some other way, for instance, by making their mark. This was, in fact,
the universal practice in England until the introduction of Norman
customs. /1/ With them seals came in. But as late as Henry II. they were
said by the Chief Justice of England to belong properly only to kings and
to very great men. /2/ I know no ground for thinking that an authentic
charter had any less effect at that time when not under seal than when it
was sealed. /3/ It was only evidence either way, and is called so in many
of the early cases. /4/ It could be waived, and suit tendered in its
place. /5/ Its conclusive effect was due to the satisfactory nature of the
evidence, not to the seal. /6/

But when seals came into use they obviously made the evidence of the
charter better, in so far as the seal was more difficult to forge than a
stroke of the pen. Seals acquired such importance, that, for a time, a man
was bound by his seal, although it was affixed without his consent. /7/ At
last a seal came to be required, in order that a charter should have its
ancient effect. /8/

A covenant or contract under seal was no longer a promise well proved; it
was a promise of a distinct nature, for which a distinct form of action
came to be provided. [273] /1/ I have shown how the requirement of
consideration became a rule of substantive law, and also why it never had
any foothold in the domain of covenants. The exception of covenants from
the requirement became a rule of substantive law also. The man who had set
his hand to a charter, from being bound because he had consented to be,
and because there was a writing to prove it, /2/ was now held by force of
the seal and by deed alone as distinguished from all other writings. And
to maintain the integrity of an inadequate theory, a seal was said to a
consideration.

Nowadays, it is sometimes thought more philosophical to say that a
covenant is a formal contract, which survives alongside of the ordinary
consensual contract, just as happened in the Roman law. But this is not a
very instructive way of putting it either. In one sense, everything is
form which the law requires in order to make a promise binding over and
above the mere expression of the promisor’s will. Consideration is a form
as much as a seal. The only difference is, that one form is of modern
introduction, and has a foundation in good sense, or at least in with our
common habits of thought, so that we do not notice it, whereas the other
is a survival from an older condition of the law, and is less manifestly
sensible, or less familiar. I may add, that, under the influence of the
latter consideration, the law of covenants is breaking down. In many
States it is held that a mere scroll or flourish of the pen is a
sufficient seal. From this it is a short step to abolish the distinction
between sealed and unsealed instruments altogether, and this has been done
in some of the Western States.

[274] While covenants survive in a somewhat weak old age, and debt has
disappeared, leaving a vaguely disturbing influence behind it, the whole
modern law of contract has grown up through the medium of the action of
Assumpsit, which must now be explained.

After the Norman conquest all ordinary actions were begun by a writ
issuing from the king, and ordering the defendant to be summoned before
the court to answer the plaintiff. These writs were issued as a matter of
course, in the various well-known actions from which they took their
names. There were writs of debt and of covenant; there were writs of
trespass for forcible injuries to the plaintiff’s person, or to property
in his possession, and so on. But these writs were only issued for the
actions which were known to the law, and without a writ the court had no
authority to try a case. In the time of Edward I. there were but few of
such actions. The cases in which you could recover money of another fell
into a small number of groups, for each of which there was a particular
form of suing and stating your claim.

These forms had ceased to be adequate. Thus there were many cases which
did not exactly fall within the definition of a trespass, but for which it
was proper that a remedy should be furnished. In order to furnish a
remedy, the first thing to be done was to furnish a writ. Accordingly, the
famous statute of 13 Edward I., c. 24, authorized the office from which
the old writs issued to frame new ones in cases similar in principle to
those for which writs were found, and requiring like remedy, but not
exactly falling within the scope of the writs already in use.

Thus writs of trespass on the case began to make their appearance; that
is, writs stating a ground of complaint [275] to a trespass, but
not quite amounting to a trespass as it had been sued for in the older
precedents. To take an instance which is substantially one of the earliest
cases, suppose that a man left a horse with a blacksmith to be shod, and
he negligently drove a nail into the horse’s foot. It might be that the
owner of the horse could not have one of the old writs, because the horse
was not in his possession when the damage was done. A strict trespass
property could only be committed against the person in possession of it.
It could not be committed by one who was in possession himself. /1/ But as
laming the horse was equally a wrong, whether the owner held the horse by
the bridle or left it with the smith, and as the wrong was closely
analogous to a trespass, although not one, the law gave the owner a writ
of trespass on the case. /2/

An example like this raises no difficulty; it is as much an action of tort
for a wrong as trespass itself. No contract was stated, and none was
necessary on principle. But this does not belong to the class of cases to
be considered, for the problem before us is to trace the origin of
assumpsit, which is an action of contract. Assumpsit, however, began as an
action of trespass on the case, and the thing to be discovered is how
trespass on the case ever became available for a mere breach of agreement.

It will be well to examine some of the earliest cases in which an
undertaking (assumpsit) was alleged. The first reported in the books is of
the reign of Edward III. /3/ The plaintiff alleged that the defendant
undertook to carry the plaintiff’s horse safely across the Humber, but
surcharged [276] the boat, by reason of which the horse
perished. It was objected that the action should have been either covenant
for breach of the agreement, or else trespass. But it was answered that
the defendant committed a wrongful act when he surcharged the boat, and
the objection was overruled. This case again, although an undertaking was
stated, hardly introduced a new principle. The force did not proceed
directly from the defendant, to be sure, but it was brought to bear by the
combination of his overloading and then pushing into the stream.

The next case is of the same reign, and goes further. /1/ The writ set
forth that the defendant undertook to cure the plaintiff’s horse of
sickness (manucepit equum praedicti W. de infirmirate), and did his work
so negligently that the horse died. This differs from the case of laming
the horse with a nail in two respects. It does not charge any forcible
act, nor indeed any act at all, but a mere omission. On the other hand, it
states an undertaking, which the other did not. The defendant at once
objected that this was an action for a breach of an undertaking, and that
the plaintiff should have brought covenant. The plaintiff replied, that he
could not do that without a deed, and that the action was for negligently
causing the death of the horse; that is, for a tort, not for a breach of
contract. Then, said the defendant, you might have had trespass. But the
plaintiff answered that by saying that the horse was not killed by force,
but died per def. de sa cure; and upon this argument the writ was adjudged
good, Thorpe, J. saying that he had seen a man indicted for killing a
patient by want of care (default in curing), whom he had undertaken to
cure.

[277]
Both these cases, it will be seen, were dealt with by the court as pure
actions of tort, notwithstanding the allegation of an undertaking on the
part of the defendant. But it will also be seen that they are successively
more remote from an ordinary case of trespass. In the case last stated,
especially, the destroying force did not proceed from the defendant in any
sense. And thus we are confronted with the question, What possible analogy
could have been found between a wrongful act producing harm, and a failure
to act at all?

I attempt to answer it, let me illustrate a little further by examples of
somewhat later date. Suppose a man undertook to work upon another’s house,
and by his unskilfulness spoiled his employer’s timbers; it would be like
a trespass, although not one, and the employer would sue in trespass on
the case. This was stated as clear law by one of the judges in the reign
of Henry IV. /1/ But suppose that, instead of directly spoiling the
materials, the carpenter had simply left a hole in the roof through which
the rain had come in and done the damage. The analogy to the previous case
is marked, but we are a step farther away from trespass, because the force
does not come from the defendant. Yet in this instance also the judges
thought that trespass on the case would lie. /2/ In the time of Henry IV.
the action could not have been maintained for a simple refusal to build
according to agreement; but it was suggested by the court, that, if the
writ had mentioned “that the thing had been commenced and then by not
done, it would have been otherwise.” /3/

[278] I now recur to the question, What likeness could there have been
between an omission and a trespass sufficient to warrant a writ of
trespass on the case? In order to find an answer it is essential to notice
that in all the earlier cases the omission occurred in the course of
dealing with the plaintiff’s person or property, and occasioned damage to
the one or the other. In view of this fact, Thorpe’s reference to
indictments for killing a patient by want of care, and the later
distinction between neglect before and after the task is commenced, are
most pregnant. The former becomes still more suggestive when it is
remembered that this is the first argument or analogy to be found upon the
subject.

The meaning of that analogy is plain. Although a man has a perfect right
to stand by and see his neighbor’s property destroyed, or, for the matter
of that, to watch his neighbor perish for want of his help, yet if he once
intermeddles he has no longer the same freedom. He cannot withdraw at
will. To give a more specific example, if a surgeon from benevolence cuts
the umbilical cord of a newly-born child, he cannot stop there and watch
the patient bleed to death. It would be murder wilfully to allow death to
come to pass in that way, as much as if the intention had been entertained
at the time of cutting the cord. It would not matter whether the
wickedness began with the act, or with the subsequent omission.

The same reasoning applies to civil liability. A carpenter need not go to
work upon another man’s house at all, but if he accepts the other’s
confidence and intermeddles, he cannot stop at will and leave the roof
open to the weather. So in the case of the farrier, when he had taken
charge of the horse, he could not stop at the critical moment [279]
and leave the consequences to fortune. So, still more clearly, when the
ferryman undertook to carry a horse across the Humber, although the water
drowned the horse, his remote acts of overloading his boat and pushing it
into the stream in that condition occasioned the loss, and he was
answerable for it.

In the foregoing cases the duty was independent of contract, or at least
was so regarded by the judges who decided them, and stood on the general
rules applied to human conduct even by the criminal law. The immediate
occasion of the damage complained of may have been a mere omission letting
in the operation of natural forces. But if you connect it, as it was
connected in fact, with the previous dealings, you have a course of action
and conduct which, taken as a whole, has caused or occasioned the harm.

The objection may be urged, to be sure, that there is a considerable step
from holding a man liable for the consequences of his acts which he might
have prevented, to making him answerable for not having interfered with
the course of nature when he neither set it in motion nor opened the door
for it to do harm, and that there is just that difference between making a
hole in a roof and leaving it open, or cutting the cord and letting it
bleed, on the one side, and the case of a farrier who receives a sick
horse and omits proper precautions, on the other. /1/

There seem to be two answers to this. First, it is not clear that such a
distinction was adverted to by the court which decided the case which I
have mentioned. It was alleged that the defendant performed his cure so
negligently that the horse died. It might not have occurred to [280]
the judges that the defendant’s conduct possibly went no further than the
omission of a series of beneficial measures. It was probably assumed to
have consisted of a combination of acts and neglects, which taken as a
whole amounted to an improper dealing with the thing.

In the next place, it is doubtful whether the distinction is a sound one
on practical grounds. It may well be that, so long as one allows a trust
to be reposed in him, he is bound to use such precautions as are known to
him, although he has made no contract, and is at liberty to renounce the
trust in any reasonable manner. This view derives some support from the
issue on which the parties went to trial, which was that the defendant
performed the cure as well as he knew how, without this, that the horse
died for default of his care (cure?). /1/

But it cannot be denied that the allegation of an undertaking conveyed the
idea of a promise, as well as that of an entering upon the business in
hand. Indeed, the latter element is sufficiently conveyed, perhaps,
without it. It may be asked, therefore, whether the promise did not count
for something in raising a duty to act. So far as this involves the
consequence that the action was in fact for the breach of a contract, the
answer has been given already, and is sustained by too great a weight of
authority to be doubted. /2/ To bind the defendant by a contract, an
instrument under seal was essential. As has been shown, already, even the
ancient sphere of debt had been limited by this requirement, and in the
time of Edward III. a deed was necessary even to bind a surety. It was so
[281]
a fortiori to introduce a liability upon promises not enforced by the
ancient law. Nevertheless, the suggestion was made at an early date, that
an action on the case for damage by negligence, that is, by an omission of
proper precautions, alleging an undertaking by way of inducement, was in
fact an action of contract.

Five years after the action for negligence in curing a horse, which has
been stated, an action was brought /1/ in form against a surgeon, alleging
that he undertook to cure the plaintiff’s hand, and that by his negligence
the hand was maimed. There was, however, this difference, that it was set
forth that the plaintiff’s hand had been wounded by one T.B. And hence it
appeared that, however much the bad treatment may have aggravated matters,
the maiming was properly attributable to T.B., and that the plaintiff had
an action against him. This may have led the defendant to adopt the course
he did, because he felt uncertain whether any action of tort would lie. He
took issue on the undertaking, assuming that to be essential to the
plaintiff’s case, and then objected that the writ did not show the place
of the undertaking, and hence was bad, because it did not show whence the
inquest should be summoned to speak to that point. The writ was adjudged
bad on that ground, which seems as if the court sanctioned the defendant’s
view. Indeed, one of the judges called it an action of covenant, and said
that “of necessity it was maintainable without specialty, because for so
small a matter a man cannot always have a clerk at hand to write a deed”
(pur faire especially). At the same time the earlier cases which [282]
have been mentioned were cited and relied on, and it is evident that the
court was not prepared to go beyond them, or to hold that the action could
be maintained on its merits apart from the technical objection. In another
connection it seems to have considered the action from the point of view
of trespass. /1/

Whatever questions this case may suggest, the class of actions which
alleged an undertaking on the part of the defendant continued to be dealt
with as actions of tort for a long time after Edward III. The liability
was limited to damage to person or property arising after the defendant
had entered upon the employment. And it was mainly through reasoning drawn
from the law of tort that it was afterwards extended, as will be seen.

At the beginning of the reign of Henry VI. it was probably still the law
that the action would not lie for a simple failure to keep a promise. /2/
But it had been several times suggested, as has been shown, that it would
be otherwise if the omission or neglect occurred in the course of
performance, and the defendant’s conduct had been followed by physical
damage. /3/ This suggestion took its most striking form in the early years
of Henry VI., when the case of the carpenter leaving a hole in the roof
was put. /4/ When the courts had got as far as this, it was easy to go one
step farther, and to allow the same effect to an omission at any stage,
followed by similar damage.

[283]
What is the difference in principle, it was asked, a few years later, /1/
between the cases where it is admitted that the action will lie, and that
of a smith who undertakes to shoe a horse and does not, by reason of which
the horse goes lame,—or that of a lawyer, who undertakes to argue
your case, and, after thus inducing you to rely upon him, neglects to be
present, so that you lose it? It was said that in the earlier instances
the duty was dependent on or accessory to the covenant, and that, if the
action would lie on the accessory matter, it would lie on the principal.
/2/ It was held on demurrer that an action would lie for not procuring
certain releases which the defendant had undertaken to get.

Five years later another case /3/ came up, which was very like that of the
farrier in the reign of Edward III. It was alleged that the defendant
undertook to cure the plaintiff’s horse, and applied medicine so
negligently that the horse died. In this, as in the earlier case, the
issue was taken on the assumpsit. And now the difference between an
omission and an act was clearly stated, the declaration was held not to
mean necessarily anything more than an omission, and it was said that but
for the undertaking the defendant would have owed no duty to act. Hence
the allegation of the defendant’s promise was material, and an issue could
properly be taken on it.

This decision distinctly separated from the mass of actions on the case a
special class arising out of a promise as the source of the defendant’s
obligation, and it was only a matter of time for that class to become a
new and distinct [284] action of contract. Had this change taken
place at once, the doctrine of consideration, which was first definitely
enunciated about the same time, would no doubt have been applied, and a
quid pro quo would have been required for the undertaking. /1/ But the
notion of tort was not at once abandoned. The law was laid down at the
beginning of the reign of Henry VII., in accordance with the earlier
decisions, and it was said that the action would not lie for a failure to
keep a promise, but only for negligence after the defendant had entered
upon his undertaking. /2/

So far as the action did not exceed the true limits of tort, it was
immaterial whether there was a consideration for the undertaking or not.
But when the mistake was made of supposing that all cases, whether proper
torts or not, in which an assumpsit was alleged, were equally founded on
the promise, one of two erroneous conclusions was naturally thought to
follow. Either no assumpsit needed any quid pro quo, /3/ as there was
clearly none in the older precedents, (they being cases of pure tort,) or
else those precedents were wrong, and a quid pro quo should be alleged in
every case. It was long recognized with more or less understanding of the
true limit, that, in cases where the gist of the action was negligent
damage to property, a consideration was not necessary. /4/ And there are
some traces of the notion that it was always superfluous, as late as
Charles I.

[285]
In a case of that reign, the defendant retained an attorney to act in a
suit for a third person, and promised to pay him all his fees and
expenses. The attorney rendered the service, and then brought debt. It was
objected that debt did not lie, because there was no contract between the
parties, and the defendant had not any quid pro quo. The court adopted the
argument, and said that there was no contract or consideration to ground
this action, but that the plaintiff might have sued in assumpsit. /1/

It was, perhaps, the lingering of this idea, and the often repeated notion
that an assumpsit was not a contract, /2/ to which was attributable a more
enlarged theory of consideration than prevailed in debt. It was settled
that assumpsit would lie for a mere omission or nonfeasance. The cases
which have been mentioned of the reign of Henry VI. were followed by
others in the latter years of Henry VII., /3/ and it was never again
doubted. An action for such a cause was clearly for a breach of promise,
as had been recognized from the time of Edward III. If so, a consideration
was necessary. /4/ Notwithstanding occasional vagaries, that also had been
settled or taken for granted in many cases of Queen Elizabeth’s time. But
the bastard origin of the action which gave rise to the doubt how far any
consideration at all was necessary, made it possible to hold
considerations sufficient which had been in debt.

Another circumstance may not have been without its influence. It would
seem that, in the period when assumpsit [286] was just growing
into its full proportions, there was some little inclination to identify
consideration with the Roman causa, taken in its broadest sense. The word
“cause” was used for consideration in the early years of Elizabeth, with
reference to a covenant to stand seized to uses. /1/ It was used in the
same sense in the action of assumpsit. /2/ In the last cited report,
although the principal case only laid down a doctrine that would be
followed to-day, there was also stated an anonymous case which was
interpreted to mean that an executed consideration furnished upon request,
but without any promise of any kind, would support a subsequent promise to
pay for it. /3/ Starting from this authority and the word “cause,” the
conclusion was soon reached that there was a great difference between a
contract and an assumpsit; and that, whereas in contracts “everything
which is requisite ought to concur and meet together, viz. the
consideration of the one side, and the sale or the promise on the other
side,… to maintain an action upon an assumpsit, the same is not
requisite, for it is sufficient if there be a moving cause or
consideration precedent; for which cause or consideration the promise was
made.” /4/

Thus, where the defendant retained the plaintiff to be [287]
to his aunt at ten shillings a week, it was held that assumpsit would lie,
because the service, though not beneficial to the defendant, was a charge
or detriment to the plaintiff. /1/ The old questions were reargued, and
views which were very near prevailing in debt under Henry VI., prevailed
in assumpsit under Elizabeth and James.

A surety could be sued in assumpsit, although he had ceased to be liable
in debt. /2/ There was the same remedy on a promise in consideration that
the plaintiff would marry the defendant’s daughter. /3/ The illusion that
assumpsit thus extended did not mean contract, could not be kept up. In
view of this admission and of the ancient precedents, the law oscillated
for a time in the direction of reward as the true essence of
consideration. /4/ But the other view prevailed, and thus, in fact, made a
change in the substantive law. A simple contract, to be recognized as
binding by the courts of Henry VI., must have been based upon a benefit to
the debtor; now a promise might be enforced in consideration of a
detriment to the promisee. But in the true archaic spirit the doctrine was
not separated or distinguished from the remedy which introduced it, and
thus debt in modern times has presented the altered appearance of a duty
limited to cases where the consideration was of a special sort.

The later fortunes of assumpsit can be briefly told. It introduced
bilateral contracts, because a promise was a [288] detriment, and
therefore a sufficient consideration for another promise. It supplanted
debt, because the existence of the duty to pay was sufficient
consideration for a promise to pay, or rather because, before a
consideration was required, and as soon as assumpsit would lie for a
nonfeasance, this action was used to avoid the defendant’s wager of law.
It vastly extended the number of actionable contracts, which had formerly
been confined to debts and covenants, whereas nearly any promise could be
sued in assumpsit; and it introduced a theory which has had great
influence on modern law,—that all the liabilities of a bailee are
founded on contract. /1/ Whether the prominence which was thus given to
contract as the foundation of legal rights and duties had anything to do
with the similar prominence which it soon acquired in political
speculation, it is beyond my province to inquire.

[289]

LECTURE VIII. — CONTRACT. II. ELEMENTS.

THE general method to be pursued in the analysis of contract is the same
as that already explained with regard to possession. Wherever the law
gives special rights to one, or imposes special burdens on another, it
does so on the ground that certain special facts are true of those
individuals. In all such cases, therefore, there is a twofold task. First,
to determine what are the facts to which the special consequences are
attached; second, to ascertain the consequences. The first is the main
field of legal argument. With regard to contracts the facts are not always
the same. They may be that a certain person has signed, sealed, and
delivered a writing of a certain purport. They may be that he has made an
oral promise, and that the promisee has furnished him a consideration.

The common element of all contracts might be said to be a promise,
although even a promise was not necessary to a liability in debt as
formerly understood. But as it will not be possible to discuss covenants
further, and as consideration formed the main topic of the last Lecture, I
will take up that first. Furthermore, as there is an historical difference
between consideration in debt and in assumpsit, I shall confine myself to
the latter, which is the later and more philosophical form.

It is said that any benefit conferred by the promisee on the promisor, or
any detriment incurred by the promisee, [290] may be a
consideration. It is also thought that every consideration may be reduced
to a case of the latter sort, using the word “detriment” in a somewhat
broad sense.

To illustrate the general doctrine, suppose that a man is desirous of
having a cask of brandy carried from Boston to Cambridge, and that a
truckman, either out of kindness or from some other motive, says that he
will carry it, and it is delivered to him accordingly. If he carelessly
staves in the cask, there would perhaps be no need to allege that he
undertook to carry it, and on principle, and according to the older cases,
if an undertaking was alleged, no consideration for the assumpsit need be
stated. /1/ The ground of complaint in that case would be a wrong,
irrespective of contract. But if the complaint was that he did not carry
it as agreed, the plaintiff’s difficulty would be that the truckman was
not bound to do so unless there was a consideration for his promise.
Suppose, therefore, that it was alleged that he promised to do so in
consideration of the delivery to him. Would this be a sufficient
consideration? The oldest cases, going on the notion of benefit to the
promisor, said that it could not be, for it was a trouble, not a benefit.
/2/ Then take it from the side of detriment. The delivery is a necessary
condition to the promisor’s doing the kindness, and if he does it, the
delivery, so far from being a detriment to the promisee, is a clear
benefit to him.

But this argument is a fallacy. Clearly the delivery would be sufficient
consideration to enable the owner to declare in assumpsit for the breach
of those duties which [291] arose, irrespective of contract, from the
defendant’s having undertaken to deal with the thing. /1/ It would be a
sufficient consideration for any promise not involving a dealing with the
thing for its performance, for instance, to pay a thousand dollars. /2/
And the law has not pronounced the consideration good or bad according to
the nature of the promise founded upon it. The delivery is a sufficient
consideration for any promise. /3/

The argument on the other side leaves out of sight the point of time at
which the sufficiency of the consideration is to be determined. This is
the moment when the consideration is furnished. At that moment the
delivery of the cask is a detriment in the strictest sense. The owner of
the cask has given up a present control over it, which he has a right to
keep, and he has got in return, not a performance for which a delivery was
necessary, but a mere promise of performance. The performance is still
future. /4/

But it will be seen that, although the delivery may be a consideration, it
will not necessarily be one. A promise to carry might be made and accepted
on the understanding that it was mere matter of favor, without
consideration, and not legally binding. In that case the detriment of
delivery would be incurred by the promisee as before, but obviously it
would be incurred for the sole purpose of enabling the promisor to carry
as agreed.

[292]
It appears to me that it has not always been sufficiently borne in mind
that the same thing may be a consideration or not, as it is dealt with by
the parties. The popular explanation of Coggs v. Bernard is, that the
delivery was a consideration for a promise to carry the casks safely. I
have given what I believe to be the true explanation, and that which I
think Lord Holt had in view, in the fifth Lecture. /1/ But whether that
which I have offered be true or not, a serious objection to the one which
is commonly accepted is that the declaration does not allege that the
delivery was the consideration.

The same caution should be observed in construing the terms of an
agreement. It is hard to see the propriety of erecting any detriment which
an instrument may disclose or provide for, into a consideration, unless
the parties have dealt with it on that footing. In many cases a promisee
may incur a detriment without thereby furnishing a consideration. The
detriment may be nothing but a condition precedent to performance of the
promise, as where a man promises another to pay him five hundred dollars
if he breaks his leg. /2/

The courts, however, have gone far towards obliterating this distinction.
Acts which by a fair interpretation of language would seem to have been
contemplated as only the compliance with a condition, have been treated as
the consideration of the promise. /3/ And so have counter promises in an
agreement which expressly stated other matters as the consideration. /4/
So it should be mentioned, subject [293] to the question
whether there may not be a special explanation for the doctrine, that it
is said that an assignment of a leasehold cannot be voluntary under the
statute of 27 Elizabeth, c. 4, because the assignee comes into the
obligations of the tenant. /1/ Yet the assignee’s incurring this detriment
may not be contemplated as the inducement of the assignment, and in many
cases only amounts to a deduction from the benefit conferred, as a right
of way would be, especially if the only obligation is to pay rent, which
issues out of the land in theory of law.

But although the courts may have sometimes gone a little far in their
anxiety to sustain agreements, there can be no doubt of the Principle
which I have laid down, that the same thing may be a consideration or not,
as it is dealt with by the parties. This raises the question how a thing
must be dealt with, in order to make it a consideration.

It is said that consideration must not be confounded with motive. It is
true that it must not be confounded with what may be the prevailing or
chief motive in actual fact. A man may promise to paint a picture for five
hundred dollars, while his chief motive may be a desire for fame. A
consideration may be given and accepted, in fact, solely for the purpose
of making a promise binding. But, nevertheless, it is the essence of a
consideration, that, by the terms of the agreement, it is given and
accepted as the motive or inducement of the promise. Conversely, the
promise must be made and accepted as the conventional motive or inducement
for furnishing the consideration. The root of the whole matter is the
relation of reciprocal [294] conventional inducement, each for the
other, between consideration and promise.

A good example of the former branch of the proposition is to be found in a
Massachusetts case. The plaintiff refused to let certain wood be removed
from his land by one who had made an oral bargain and given his note for
it, unless he received additional security. The purchaser and the
plaintiff accordingly went to the defendant, and the defendant put his
name upon the note. The plaintiff thereupon let the purchaser carry off
the wood. But, according to the testimony, the defendant signed without
knowing that the plaintiff was to alter his position in any way on the
faith of the signature, and it was held that, if that story was believed,
there was no consideration. /1/

An illustration of the other half of the rule is to be found in those
cases where a reward is offered for doing something, which is afterwards
done by a person acting in ignorance of the offer. In such a case the
reward cannot be claimed, because the alleged consideration has not been
furnished on the faith of the offer. The tendered promise has not induced
the furnishing of the consideration. The promise cannot be set up as a
conventional motive when it was not known until after the alleged
consideration was performed. /2/

Both sides of the relation between consideration and promise, and the
conventional nature of that relation, may be illustrated by the case of
the cask. Suppose that the [295] truckman is willing to carry the cask,
and the owner to let him carry it, without any bargain, and that each
knows the other’s state of mind; but that the truckman, seeing his own
advantage in the matter, says to the owner, “In consideration of your
delivering me the cask, and letting me carry it, I promise to carry it,”
and that the owner thereupon delivers it. I suppose that the promise would
be binding. The promise is offered in terms as the inducement for the
delivery, and the delivery is made in terms as the inducement for the
promise. It may be very probable that the delivery would have been made
without a promise, and that the promise would have been made in gratuitous
form if it had not been accepted upon consideration; but this is only a
guess after all. The delivery need not have been made unless the owner
chose, and having been made as the term of a bargain, the promisor cannot
set up what might have happened to destroy the effect of what did happen.
It would seem therefore that the same transaction in substance and spirit
might be voluntary or obligatory, according to the form of words which the
parties chose to employ for the purpose of affecting the legal
consequences.

If the foregoing principles be accepted, they will be seen to explain a
doctrine which has given the courts some trouble to establish. I mean the
doctrine that an executed consideration will not sustain a subsequent
promise. It has been said, to be sure, that such a consideration was
sufficient if preceded by a request. But the objections to the view are
plain. If the request was of such a nature, and so put, as reasonably to
imply that the other person was to have a reward, there was an express
promise, although not put in words, and that promise was made at [296]
the same time the consideration was given, and not afterwards. If, on the
other hand, the words did not warrant the understanding that the service
was to be paid for, the service was a gift, and a past gift can no more be
a consideration than any other act of the promisee not induced by the
promise.

The source of the error can be traced partially, at least, in history.
Some suggestions touching the matter were made in the last Lecture. A few
words should be added here. In the old cases of debt, where there was some
question whether the plaintiff had showed enough to maintain his action, a
“contract precedent” was spoken of several times as raising the duty.
Thus, where a man had granted that he would be bound in one hundred
shillings to pay his servant on a certain day for his services, and for
payments made by the servant on his account, it was argued that there was
no contract precedent, and that by parol the party is not obliged; and,
further, that, so far as appeared, the payments were made by the servant
out of his own head and at no request, from which no duty could commence.
/1/

So when debt was brought on a deed to pay the plaintiff ten marks, if he
would take the defendant’s daughter to wife, and it was objected that the
action should have been covenant, it was answered that the plaintiff had a
contract precedent which gave him debt. /2/

The first case in assumpsit /3/ only meant to adopt this long familiar
thought. A man went bail for his friend’s servant, who had been arrested.
Afterwards the master [297] promised to indemnify the bail, and on his
failure to do so was sued by him in assumpsit. It was held that there was
no consideration wherefore the defendant should be charged unless the
master had first promised to indemnify the plaintiff before the servant
was bailed; “for the master did never make request to the plaintiff for
his servant to do so much, but he did it of his own head.” This is
perfectly plain sailing, and means no more than the case in the Year
Books. The report, however, also states a case in which it was held that a
subsequent promise, in consideration that the plaintiff at the special
instance of the defendant had married the defendant’s cousin, was binding,
and that the marriage was “good cause… because [it] ensued the request
of the defendant.” Whether this was intended to establish a general
principle, or was decided with reference to the peculiar consideration of
marriage, /1/ it was soon interpreted in the broader sense, as was shown
in the last Lecture. It was several times adjudged that a past and
executed matter was a sufficient consideration for a promise at a later
day, if only the matter relied on had been done or furnished at the
request of the promisor. /2/

According to this definition the scope of promises is confined to conduct
on the part of the promisor. If this only meant that the promisor alone
must bear the legal burden which his promise may create, it would be true.
But this is not the meaning. For the definition is of a promise, not of a
legally binding promise. We are not seeking for the legal effects of a
contract, but for the possible contents of a promise which the law may or
may not enforce. We must therefore only consider the question what can
possibly be promised in a legal sense, not what will be the secondary
consequence of a promise binding, but not performed.

An assurance that it shall rain to-morrow, /1/ or that a third person
shall paint a picture, may as well be a promise as one that the promisee
shall receive from some source one hundred bales of cotton, or that the
promisor will pay the promisee one hundred dollars. What is the difference
in the cases? It is only in the degree of power possessed by the promisor
over the event. He has none in the first case. He has equally little legal
authority to make a man paint a picture, although he may have larger means
of persuasion. He probably will be able to make sure that the promisee has
the cotton. Being a rich man, he is certain [299] to be able to pay the
one hundred dollars, except in the event of some most improbable accident.

But the law does not inquire, as a general thing, how far the
accomplishment of an assurance touching the future is within the power of
the promisor. In the moral world it may be that the obligation of a
promise is confined to what lies within reach of the will of the promisor
(except so far as the limit is unknown on one side, and misrepresented on
the other). But unless some consideration of public policy intervenes, I
take it that a man may bind himself at law that any future event shall
happen. He can therefore promise it in a legal sense. It may be said that
when a man covenants that it shall rain to-morrow, or that A shall paint a
picture, he only says, in a short form, I will pay if it does not rain, or
if A does not paint a picture. But that is not necessarily so. A promise
could easily be framed which would be broken by the happening of fair
weather, or by A not painting. A promise, then, is simply an accepted
assurance that a certain event or state of things shall come to pass.

But if this be true, it has more important bearings than simply to enlarge
the definition of the word promise. It concerns the theory of contract.
The consequences of a binding promise at common law are not affected by
the degree of power which the promisor possesses over the promised event.
If the promised event does not come to pass, the plaintiff’s property is
sold to satisfy the damages, within certain limits, which the promisee has
suffered by the failure. The consequences are the same in kind whether the
promise is that it shall rain, or that another man shall paint a picture,
or that the promisor will deliver a bale of cotton.

[300] If the legal consequence is the same in all cases, it seems proper
that all contracts should be considered from the same legal point of view.
In the case of a binding promise that it shall rain to-morrow, the
immediate legal effect of what the promisor does is, that he takes the
risk of the event, within certain defined limits, as between himself and
the promisee. He does no more when he promises to deliver a bale of
cotton.

If it be proper to state the common-law meaning of promise and contract in
this way, it has the advantage of freeing the subject from the superfluous
theory that contract is a qualified subjection of one will to another, a
kind of limited slavery. It might be so regarded if the law compelled men
to perform their contracts, or if it allowed promisees to exercise such
compulsion. If, when a man promised to labor for another, the law made him
do it, his relation to his promisee might be called a servitude ad hoc
with some truth. But that is what the law never does. It never interferes
until a promise has been broken, and therefore cannot possibly be
performed according to its tenor. It is true that in some instances equity
does what is called compelling specific performance. But, in the first
place, I am speaking of the common law, and, in the next, this only means
that equity compels the performance of certain elements of the total
promise which are still capable of performance. For instance, take a
promise to convey land within a certain time, a court of equity is not in
the habit of interfering until the time has gone by, so that the promise
cannot be performed as made. But if the conveyance is more important than
the time, and the promisee prefers to have it late rather than never, the
law may compel the performance of [301] that. Not literally
compel even in that case, however, but put the promisor in prison unless
he will convey. This remedy is an exceptional one. The only universal
consequence of a legally binding promise is, that the law makes the
promisor pay damages if the promised event does not come to pass. In every
case it leaves him free from interference until the time for fulfilment
has gone by, and therefore free to break his contract if he chooses.

A more practical advantage in looking at a contract as the taking of a
risk is to be found in the light which it throws upon the measure of
damages. If a breach of contract were regarded in the same light as a
tort, it would seem that if, in the course of performance of the contract
the promisor should be notified of any particular consequence which would
result from its not being performed, he should be held liable for that
consequence in the event of non-performance. Such a suggestion has been
made. /1/ But it has not been accepted as the law. On the contrary,
according to the opinion of a very able judge, which seems to be generally
followed, notice, even at the time of making the contract, of special
circumstances out of which special damages would arise in case of breach,
is not sufficient unless the assumption of that risk is to be taken as
having fairly entered into the contract. /2/ If a carrier should undertake
to carry the machinery of a saw-mill from Liverpool to Vancouver’s Island,
and should fail [302] to do so, he probably would not be held
liable for the rate of hire of such machinery during the necessary delay,
although he might know that it could not be replaced without sending to
England, unless he was fairly understood to accept “the contract with the
special condition attached to it.” /1/

It is true that, when people make contracts, they usually contemplate the
performance rather than the breach. The express language used does not
generally go further than to define what will happen if the contract is
fulfilled. A statutory requirement of a memorandum in writing would be
satisfied by a written statement of the promise as made, because to
require more would be to run counter to the ordinary habits of mankind, as
well as because the statement that the effect of a contract is the
assumption of the risk of a future event does not mean that there is a
second subsidiary promise to assume that risk, but that the assumption
follows as a consequence directly enforced by the law, without the
promisor’s co-operation. So parol evidence would be admissible, no doubt,
to enlarge or diminish the extent of the liability assumed for
nonperformance, where it would be inadmissible to affect the scope of the
promise.

But these concessions do not affect the view here taken. As the relation
of contractor and contractee is voluntary, the consequences attaching to
the relation must be voluntary. What the event contemplated by the promise
is, or in other words what will amount to a breach of contract, is a
matter of interpretation and construction. What consequences of the breach
are assumed is more remotely, in like manner, a matter of construction,
having regard [303] to the circumstances under which the contract is made.
Knowledge of what is dependent upon performance is one of those
circumstances. It is not necessarily conclusive, but it may have the
effect of enlarging the risk assumed.

The very office of construction is to work out, from what is expressly
said and done, what would have been said with regard to events not
definitely before the minds of the parties, if those events had been
considered. The price paid in mercantile contracts generally excludes the
construction that exceptional risks were intended to be assumed. The
foregoing analysis is believed to show that the result which has been
reached by the courts on grounds of practical good sense, falls in with
the true theory of contract under the common law.

The discussion of the nature of a promise has led me to analyze contract
and the consequences of contract somewhat in advance of their place. I
must say a word more concerning the facts which constitute a promise. It
is laid down, with theoretical truth, that, besides the assurance or offer
on the one side, there must be an acceptance on the other. But I find it
hard to think of a case where a simple contract fails to be made, which
could not be accounted for on other grounds, generally by the want of
relation between assurance or offer and consideration as reciprocal
inducements each of the other. Acceptance of an offer usually follows by
mere implication from the furnishing of the consideration; and inasmuch as
by our law an accepted offer, or promise, until the consideration is
furnished, stands on no different footing from an offer not yet accepted,
each being subject to revocation until that time, and each continuing [304]
until then unless it has expired or has been revoked, the question of
acceptance is rarely of practical importance.

Assuming that the general nature of consideration and promise is
understood, some questions peculiar to bilateral contracts remain to be
considered. These concern the sufficiency of the consideration and the
moment when the contract is made.

A promise may be a consideration for a promise, although not every promise
for every other. It may be doubted whether a promise to make a gift of one
hundred dollars would be supported by a promise to accept it. But in a
case of mutual promises respectively to transfer and to accept unpaid
shares in a railway company, it has been held that a binding contract was
made. Here one party agrees to part with something which may prove
valuable, and the other to assume a liability which may prove onerous. /1/

But now suppose that there is no element of uncertainty except in the
minds of the parties. Take, for instance, a wager on a past horse-race. It
has been thought that this would amount to an absolute promise on one
side, and no promise at all on the other. /2/ But this does not seem to me
sound. Contracts are dealings between men, by which they make arrangements
for the future. In making such arrangements the important thing is, not
what is objectively true, but what the parties know. Any present fact
which is unknown to the parties is just as uncertain for the purposes of
making an arrangement at this moment, as any future fact. It is therefore
a detriment to undertake to be ready to pay if the event turns out not [305]
to have been as expected. This seems to be the true explanation why
forbearance to sue upon a claim believed the plaintiff to be good is a
sufficient consideration, although the claim was bad in fact, and known by
the defendant to be bad. /1/ Were this view unsound, it is hard to see how
wagers on any future event, except a miracle, could be sustained. For if
the happening or not happening of the event is subject to the law of
causation, the only uncertainty about it is in our foresight, not in its
happening.

The question when a contract is made arises for the most part with regard
to bilateral contracts by letter, the doubt being whether the contract is
complete at the moment when the return promise is put into the post, or at
the moment when it is received. If convenience preponderates in favor of
either view, that is a sufficient reason for its adoption. So far as
merely logical grounds go, the most ingenious argument in favor of the
later moment is Professor Langdell’s. According to him the conclusion
follows from the fact that the consideration which makes the offer binding
is itself a promise. Every promise, he says, is an offer before it is a
promise, and the essence of an offer is that it should be communicated.
/2/ But this reasoning seems unsound. When, as in the case supposed, the
consideration for the return promise has been put into the power of the
offeree and the return promise has been accepted in advance, there is not
an instant, either in time or logic, when the return promise is an offer.
It is a promise and a term of a binding contract as soon as it is
anything. An offer is a revocable and unaccepted communication of
willingness to promise. [306] When an offer of a certain bilateral
contract has been made, the same contract cannot be offered by the other
side. The so-called offer would neither be revocable nor unaccepted. It
would complete the contract as soon as made.

If it be said that it is of the essence of a promise to be communicated,
whether it goes through the stage of offer or not, meaning by communicated
brought to the actual knowledge of the promisee, the law is believed to be
otherwise. A covenant is binding when it is delivered and accepted,
whether it is read or not. On the same principle, it is believed that,
whenever the obligation is to be entered into by a tangible sign, as, in
the case supposed, by letter containing the return promise, and the
consideration for and assent to the promise are already given, the only
question is when the tangible sign is sufficiently put into the power of
the promisee. I cannot believe that, if the letter had been delivered to
the promisee and was then snatched from his hands before he had read it,
there would be no contract. /1/ If I am right, it appears of little
importance whether the post-office be regarded as agent or bailee for the
offerer, or as a mere box to which he has access. The offeree, when he
drops the letter containing the counter-promise into the letter-box, does
an overt act, which by general understanding renounces control over the
letter, and puts it into a third hand for the benefit of the offerer, with
liberty to the latter at any moment thereafter to take it.

The principles governing revocation are wholly different. One to whom an
offer is made has a right to assume that it remains open according to its
terms until he has actual [307] notice to the contrary. The effect of the
communication must be destroyed by a counter communication. But the making
of a contract does not depend on the state of the parties’ minds, it
depends on their overt acts. When the sign of the counter promise is a
tangible object, the contract is completed when the dominion over that
object changes.

[308]

LECTURE IX. — CONTRACT.—III. VOID AND VOIDABLE.

THE elements of fact necessary to call a contract into existence, and the
legal consequences of a contract when formed, have been discussed. It
remains to consider successively the cases in which a contract is said to
be void, and those in which it is said to be voidable,—in which,
that is, a contract fails to be made when it seems to have been, or,
having been made, can be rescinded by one side or the other, and treated
as if it had never been. I take up the former class of cases first.

When a contract fails to be made, although the usual forms have been gone
through with, the ground of failure is commonly said to be mistake,
misrepresentation, or fraud. But I shall try to show that these are merely
dramatic circumstances, and that the true ground is the absence of one or
more of the primary elements, which have been shown, or are seen at once,
to be necessary to the existence of a contract.

If a man goes through the form of making a contract with A through B as
A’s agent, and B is not in fact the agent of A, there is no contract,
because there is only one party. The promise offered to A has not been
accepted by him, and no consideration has moved from him. In such a case,
although there is generally mistake on one side and fraud on the other, it
is very clear that no special [309] doctrine need be
resorted to, because the primary elements of a contract explained in the
last Lecture are not yet present.

Take next a different case. The defendant agreed to buy, and the plaintiff
agreed to sell, a cargo of cotton, “to arrive ex Peerless from Bombay.”
There were two such vessels sailing from Bombay, one in October, the other
in December. The plaintiff meant the latter, the defendant the former. It
was held that the defendant was not bound to accept the cotton. /1/ It is
commonly said that such a contract is void, because of mutual mistake as
to the subject-matter, and because therefore the parties did not consent
to the same thing. But this way of putting it seems to me misleading. The
law has nothing to do with the actual state of the parties’ minds. In
contract, as elsewhere, it must go by externals, and judge parties by
their conduct. If there had been but one “Peerless,” and the defendant had
said “Peerless” by mistake, meaning “Peri,” he would have been bound. The
true ground of the decision was not that each party meant a different
thing from the other, as is implied by the explanation which has been
mentioned, but that each said a different thing. The plaintiff offered one
thing, the defendant expressed his assent to another.

A proper name, when used in business or in pleading, /2/ means one
individual thing, and no other, as every one knows, and therefore one to
whom such a name is used must find out at his peril what the object
designated is. If there are no circumstances which make the use deceptive
on either side, each is entitled to insist on the [310] meaning favorable to
him for the word as used by him, and neither is entitled to insist on that
meaning for the word as used by the other. So far from mistake having been
the ground of decision, as mistake, its only bearing, as it seems to me,
was to establish that neither party knew that he was understood by the
other to use the word “Peerless “in the sense which the latter gave to it.
In that event there would perhaps have been a binding contract, because,
if a man uses a word to which he knows the other party attaches, and
understands him to attach, a certain meaning, he may be held to that
meaning, and not be allowed to give it any other. /1/

Next, suppose a case in which the offer and acceptance do not differ, and
in which both parties have used the same words in the same sense. Suppose
that A agreed to buy, and B agreed to sell, “these barrels of mackerel,”
and that the barrels in question turn out to contain salt. There is mutual
mistake as to the contents of the barrels, and no fraud on either side. I
suppose the contract would be void. /2/

It is commonly said that the failure of the contract in such a case is due
to the fact of a difference in kind between the actual subject-matter and
that to which the intention of the parties was directed. It is perhaps
more instructive to say that the terms of the supposed contract, although
seemingly consistent, were contradictory, in matters that went to the root
of the bargain. For, by one of the essential terms, the subject-matter of
the agreement was the contents of certain barrels, and nothing else, and,
by another equally important, it was mackerel, and nothing else; [311]
while, as a matter of fact, it could not be both, because the contents of
the barrels were salt. As neither term could be left out without forcing
on the parties a contract which they did not make, it follows that A
cannot be required to accept, nor B to deliver either these barrels of
salt, or other barrels of mackerel; and without omitting one term, the
promise is meaningless.

If there had been fraud on the seller’s part, or if he had known what the
barrels really contained, the buyer might have had a right to insist on
delivery of the inferior article. Fraud would perhaps have made the
contract valid at his option. Because, when a man qualifies sensible words
with others which he knows, on secret grounds, are insensible when so
applied, he may fairly be taken to authorize his promisee to insist on the
possible part of his promise being performed, if the promisee is willing
to forego the rest.

Take one more illustration like the last case. A policy of insurance is
issued on a certain building described in the policy as a machine-shop. In
fact the building is not a machine-shop, but an organ factory, which is a
greater risk. The contract is void, not because of any misrepresentation,
but, as before, because two of its essential terms are repugnant, and
their union is insensible. /1/

Of course the principle of repugnancy last explained might be stretched to
apply to any inconsistency between the different terms of a contract. It
might be said, for instance, that if a piece of gold is sold as
eighteen-carat gold, and it is in fact not so pure, or if a cow is sold as
yielding an average of twelve quarts of milk a day, and in fact she yields
only six quarts, there is no logical difference, [312] according to the
explanation which has just been offered, between those cases and that of
the barrel of salt sold for mackerel. Yet those bargains would not be
void. At the most, they would only be voidable, if the buyer chose to
throw them up.

The distinctions of the law are founded on experience, not on logic. It
therefore does not make the dealings of men dependent on a mathematical
accuracy. Whatever is promised, a man has a right to be paid for, if it is
not given; but it does not follow that the absence of some insignificant
detail will authorize him to throw up the contract, still less that it
will prevent the formation of a contract, which is the matter now under
consideration. The repugnant terms must both be very important,—so
important that the court thinks that, if either is omitted, the contract
would be different in substance from that which the words of the parties
seemed to express.

A term which refers directly to an identification by the senses has always
this degree of importance. If a promise is made to sell this cow, or this
mackerel, to this man, whatever else may be stricken from the contract, it
can never be enforced except touching this object and by this man. If this
barrel of salt is fraudulently sold for a barrel of mackerel, the buyer
may perhaps elect to take this barrel of salt if he chooses, but he cannot
elect to take another barrel of mackerel. If the seller is introduced by
the name B, and the buyer supposes him to be another person of the same
name, and under that impression delivers his written promise to buy of B,
the B to whom the writing is delivered is the contractee, if any one is,
and, notwithstanding what has been said of the use of proper names, I
should suppose [313] a contract would be made. /1/ For it is
further to be said that, so far as by one of the terms of a contract the
thing promised or the promisee is identified by sight and hearing, that
term so far preponderates over all others that it is very rare for the
failure of any other element of description to prevent the making of a
contract. /2/ The most obvious of seeming exceptions is where the object
not in fact so identified, but only its covering or wrapper.

Of course the performance of a promise may be made conditional on all the
terms stipulated from the other side being complied with, but conditions
attaching to performance can never come into consideration until a
contract has been made, and so far the question has been touching the
existence of a contract in the first instance.

A different case may be suggested from any yet considered. Instead of a
repugnancy between offer and assent which prevents an agreement, or
between the terms of an agreement which makes it insensible on its fact,
there may be a like repugnancy between a term of the contract and a
previous representation of fact which is not expressly made a part of the
contract. The representation may have been the chief inducement and very
foundation of the bargain. It may be more important than any of the
expressed terms, and yet the contract may have [314] been reduced to
writing in words which cannot fairly be construed to include it. A vendor
may have stated that barrels filled with salt contain mackerel, but the
contract may be only for the barrels and their contents. An applicant for
insurance may have misstated facts essential to the risk, yet the policy
may simply insure a certain building or a certain life. It may be asked
whether these contracts are not void also.

There might conceivably be cases in which, taking into account the nature
of the contract, the words used could be said to embody the representation
as a term by construction. For instance, it might be said that the true
and well-understood purport of a contract of insurance is not, as the
words seem to say, to take the risk of any loss by fire or perils of the
sea, however great the risk may be, but to take a risk of a certain
magnitude, and no other, which risk has been calculated mathematically
from the statements of the party insured. The extent of the risk taken is
not specified in the policy, because the old forms and established usage
are otherwise, but the meaning is perfectly understood.

If this reasoning were adopted, there would be an equal repugnancy in the
terms of the contract, whether the nature of the risk were written in the
policy or fixed by previous description. But, subject to possible
exceptions of this kind, it would seem that a contract would be made, and
that the most that could be claimed would be a right to rescind. Where
parties having power to bind themselves do acts and use words which are
fit to create an obligation, I take it that an obligation arises. If there
is a mistake as to a fact not mentioned in the contract, it goes only to
the motives for making the contract. But a [315] contract is not prevented
from being made by the mere fact that one party would not have made it if
he had known the truth. In what cases a mistake affecting motives is a
ground for avoidance, does not concern this discussion, because the
subject now under consideration is when a contract is made, and the
question of avoiding or rescinding it presupposes that it has been made.

I think that it may now be assumed that, when fraud, misrepresentation, or
mistake is said to make a contract void, there is no new principle which
comes in to set aside an otherwise perfect obligation, but that in every
such case there is wanting one or more of the first elements which were
explained in the foregoing Lecture. Either there is no second party, or
the two parties say different things, or essential terms seemingly
consistent are really inconsistent as used.

When a contract is said to be voidable, it is assumed that a contract has
been made, but that it is subject to being unmade at the election of one
party. This must be because of the breach of some condition attached to
its existence either expressly or by implication.

If a condition is attached to the contract’s coming into being, there is
as yet no contract. Either party may withdraw, at will, until the
condition is determined. There is no obligation, although there may be an
offer or a promise, and hence there is no relation between the parties
which requires discussion here. But some conditions seemingly arising out
of a contract already made are conditions of this sort. Such is always the
case if the condition of a promise lies within the control of the
promisor’s own will. For instance, a promise to pay for clothes if made to
the customer’s satisfaction, has been held in Massachusetts to [316]
make the promisor his own final judge. /1/ So interpreted, it appears to
me to be no contract at all, until the promisor’s satisfaction is
expressed. His promise is only to pay if he sees fit, and such a promise
cannot be made a contract because it cannot impose any obligation. /2/ If
the promise were construed to mean that the clothes should be paid for
provided they were such as ought to satisfy the promisor, /3/ and thus to
make the jury the arbiter, there would be a contract, because the promisor
gives up control over the event, but it would be subject to a condition in
the sense of the present analysis.

The conditions which a contract may contain have been divided by theorists
into conditions precedent and conditions subsequent. The distinction has
even been pronounced of great importance. It must be admitted that, if the
course of pleading be taken as a test, it is so. In some cases, the
plaintiff has to state that a condition has been performed in order to put
the defendant to his answer; in others, it is left to the defendant to set
up that a condition has been broken.

In one sense, all conditions are subsequent; in another, all are
precedent. All are subsequent to the first stage of the obligation. /4/
Take, for instance, the case of a promise to pay for work if done to the
satisfaction of an architect. The condition is a clear case of what is
called a condition precedent. There can be no duty to pay until the
architect is satisfied. But there can be a [317] contract before that
moment, because the determination whether the promisor shall pay or not is
no longer within his control. Hence the condition is subsequent to the
existence of the obligation.

On the other hand, every condition subsequent is precedent to the
incidence of the burden of the law. If we look at the law as it would be
regarded by one who had no scruples against doing anything which he could
do without incurring legal consequences, it is obvious that the main
consequence attached by the law to a contract is a greater or less
possibility of having to pay money. The only question from the purely
legal point of view is whether the promisor will be compelled to pay. And
the important moment is that at which that point is settled. All
conditions are precedent to that.

But all conditions are precedent, not only in this extreme sense, but also
to the existence of the plaintiff’s cause of action. As strong a case as
can be put is that of a policy of insurance conditioned to be void if not
sued upon within one year from a failure to pay as agreed. The condition
does not come into play until a loss has occurred, the duty to pay has
been neglected, and a cause of action has arisen. Nevertheless, it is
precedent to the plaintiff’s cause of action. When a man sues, the
question is not whether he has had a cause of action in the past, but
whether he has one then. He has not one then, unless the year is still
running. If it were left for the defendant to set up the lapse of the
year, that would be due to the circumstance that the order of pleading
does not require a plaintiff to meet all possible defences, and to set out
a case unanswerable except by denial. The point at which the law calls on
the defendant for an answer varies [318] in different cases.
Sometimes it would seem to be governed simply by convenience of proof,
requiring the party who has the affirmative to plead and prove it.
Sometimes there seems to be a reference to the usual course of events, and
matters belong to the defence because they are only exceptionally true.

The most logical distinction would be between conditions which must be
satisfied before a promise can be broken, and those which, like the last,
discharge the liability after a breach has occurred. /1/ But this is of
the slightest possible importance, and it may be doubted whether another
case like the last could be found.

It is much more important to mark the distinction between a stipulation
which only has the effect of confining a promise to certain cases, and a
condition properly so called. Every condition, it is true, has this effect
upon the promise to which it is attached, so that, whatever the rule of
pleading may be, /2/ a promise is as truly kept and performed by doing
nothing where the condition of the stipulated act has been broken, as it
would have been by doing the act if the condition had been fulfilled. But
if this were all, every clause in a contract which showed what the
promisor did not promise would be a condition, and the word would be worse
than useless. The characteristic feature is quite different.

A condition properly so called is an event, the happening of which
authorizes the person in whose favor the condition is reserved to treat
the contract as if it had not been made,—to avoid it, as is commonly
said,—that is, to insist on both parties being restored to the
position in [319] which they stood before the contract was
made. When a condition operates as such, it lets in an outside force to
destroy the existing state of things. For although its existence is due to
consent of parties, its operation depends on the choice of one of them.
When a condition is broken, the person entitled to insist on it may do so
if he chooses; but he may, if he prefers, elect to keep the contract on
foot. He gets his right to avoid it from the agreement, but the avoidance
comes from him.

Hence it is important to distinguish those stipulations which have this
extreme effect from those which only interpret the extent of a promise, or
define the events to which it applies. And as it has just been shown that
a condition need not be insisted on as such, we must further distinguish
between its operation by way of avoidance, which is peculiar to it, and
its incidental working by way of interpretation and definition, in common
with other clauses not conditions.

This is best illustrated by taking a bilateral contract between A and B,
where A’s undertaking is conditional on B’s doing what he promises to do,
and where, after A has got a certain distance in his task, B breaks his
half of the bargain. For instance, A is employed as a clerk by B, and is
wrongfully dismissed in the middle of a quarter. In favor of A, the
contract is conditional on B’s keeping his agreement to employ him.
Whether A insists on the condition or not, he is not bound to do any more.
/1/ So far, the condition works simply by way of definition. It
establishes that A has not promised to act in the case which has happened.
But besides this, for which a condition [320] was not necessary, A
may take his choice between two courses. In the first place, he may elect
to avoid the contract. In that case the parties stand as if no contract
had been made, and A, having done work for B which was understood not to
be gratuitous, and for which no rate of compensation has been fixed, can
recover what the jury think his services were reasonably worth. The
contract no longer determines the quid pro quo. But as an alternative
course A may stand by the contract if he prefers to do so, and sue B for
breaking it. In that case he can recover as part of his damages pay at the
contract rate for what he had done, as well as compensation for his loss
of opportunity to finish it. But the points which are material for the
present discussion are, that these two remedies are mutually exclusive,
/1/ one supposing the contract to be relied on, the other that it is set
aside, but that A’s stopping work and doing no more after B’s breach is
equally consistent with either choice, and has in fact nothing to do with
the matter.

One word should be added to avoid misapprehension. When it is said that A
has done all that he promised to do in the case which has happened, it is
not meant that he is necessarily entitled to the same compensation as if
he had done the larger amount of work. B’s promise in the case supposed
was to pay so much a quarter for services; and although the consideration
of the promise was the promise by A to perform them, the scope of it was
limited to the case of their being performed in fact. Hence A could not
simply wait till the end of his term, and then recover the full amount
which he would have had if the employment had continued. Nor is he any
more entitled to do so from [321] the fact that it was B’s fault that the
services were not rendered. B’s answer to any such claim is perfect. He is
only liable upon a promise, and he in his turn only promised to pay in a
case which has not happened. He did promise to employ, however, and for
not doing that he is liable in damages.

One or two more illustrations will be useful. A promises to deliver, and B
promises to accept and pay for, certain goods at a certain time and place.
When the time comes, neither party is on hand. Neither would be liable to
an action, and, according to what has been said, each has done all that he
promised to do in the event which has happened, to wit, nothing. It might
be objected that, if A has done all that he is bound to do, he ought to be
able to sue B, since performance or readiness to perform was all that was
necessary to give him that right, and conversely the same might be said of
B. On the other hand, considering either B or A as defendant, the same
facts would be a complete defence. The puzzle is largely one of words.

A and B have, it is true, each performed all that they promised to do at
the present stage, because they each only promised to act in the event of
the other being ready and willing to act at the same time. But the
readiness and willingness, although not necessary to the performance of
either promise, and therefore not a duty, was necessary in order to
present a case to which the promise of action on the other side would
apply. Hence, although A and B have each performed their own promise, they
have not performed the condition to their right of demanding more from the
other side. The performance of that condition is purely optional until one
side has brought it within the [322] scope of the other’s undertaking by
performing it himself. But it is performance in the latter sense, that is,
the satisfying of all conditions, as well as the keeping of his own
promises, which is necessary to give A or B a right of action.

Conditions may be created by the very words of a contract. Of such cases
there is nothing to be said, for parties may agree to what they choose.
But they may also be held to arise by construction, where no provision is
made in terms for rescinding or avoiding the contract in any case. The
nature of the conditions which the law thus reads in needs explanation. It
may be said, in a general way, that they are directed to the existence of
the manifest grounds for making the bargain on the side of the rescinding
party, or the accomplishment of its manifest objects. But that is not
enough. Generally speaking, the disappointment must be caused by the
wrong-doing of the person on the other side; and the most obvious cases of
such wrong-doing are fraud and misrepresentation, or failure to perform
his own part of the contract.

Fraud and misrepresentation thus need to be considered once more in this
connection. I take the latter first. In dealing with it the first question
which arises is whether the representation is, or is not, part of the
contract. If the contract is in writing and the representation is set out
on the face of the paper, it may be material or immaterial, but the effect
of its untruth will be determined on much the same principles as govern
the failure to perform a promise on the same side. If the contract is made
by word of mouth, there may be a large latitude in connecting words of
representation with later words of promise; but when they are determined
to be a part of the contract, [323] the same principles apply as if the
whole were in writing.

The question now before us is the effect of a misrepresentation which
leads to, but is not a part of, the contract. Suppose that the contract is
in writing, but does not contain it, does such a previous
misrepresentation authorize rescission in any case? and if so, does it in
any case except where it goes to the height of fraud? The promisor might
say, It does not matter to me whether you knew that your representation
was false or not; the only thing I am concerned with is its truth. If it
is untrue, I suffer equally whether you knew it to be so or not. But it
has been shown, in an earlier Lecture, that the law does not go on the
principle that a man is answerable for all the consequences of all his
acts. An act is indifferent in itself. It receives its character from the
concomitant facts known to the actor at the time. If a man states a thing
reasonably believing that he is speaking from knowledge, it is contrary to
the analogies of the law to throw the peril of the truth upon him unless
he agrees to assume that peril, and he did not do so in the case supposed,
as the representation was not made part of the contract.

It is very different when there is fraud. Fraud may as well lead to the
making of a contract by a statement outside the contract as by one
contained in it. But the law would hold the contract not less conditional
on good faith in one case than in the other.

To illustrate, we may take a somewhat extreme case. A says to B, I have
not opened these barrels myself, but they contain No. 1 mackerel: I paid
so much for them to so and so, naming a well-known dealer. Afterwards A
writes B, I will sell the barrels which you saw, and their [324] contents,
for so much; and B accepts. The barrels turn out to contain salt. I
suppose the contract would be binding if the statements touching the
contents were honest, and voidable if they were fraudulent.

Fraudulent representations outside a contract can never, it would seem, go
to anything except the motives for making it. If outside the contract,
they cannot often affect its interpretation. A promise in certain words
has a definite meaning, which the promisor is presumed to understand. If A
says to B, I promise you to buy this barrel and its contents, his words
designate a person and thing identified by the senses, and they signify
nothing more. There is no repugnancy, and if that person is ready to
deliver that thing, the purchaser cannot say that any term in the contract
itself is not complied with. He may have been fraudulently induced to
believe that B was another B, and that the barrel contained mackerel; but
however much his belief on those points may have affected his willingness
to make the promise, it would be somewhat extravagant to give his words a
different meaning on that account. “You” means the person before the
speaker, whatever his name, and “contents” applies to salt, as well as to
mackerel.

It is no doubt only by reason of a condition construed into the contract
that fraud is a ground of rescission. Parties could agree, if they chose,
that a contract should be binding without regard to truth or falsehood
outside of it on either part.

But, as has been said before in these Lectures, although the law starts
from the distinctions and uses the language of morality, it necessarily
ends in external standards not dependent on the actual consciousness of
the individual. [325] So it has happened with fraud. If a man
makes a representation, knowing facts which by the average standard of the
community are sufficient to give him warning that it is probably untrue,
and it is untrue, he is guilty of fraud in theory of law whether he
believes his statement or not. The courts of Massachusetts, at least, go
much further. They seem to hold that any material statement made by a man
as of his own knowledge, or in such a way as fairly to be understood as
made of his own knowledge, is fraudulent if untrue, irrespective of the
reasons he may have had for believing it and for believing that he knew
it. /1/ It is clear, therefore, that a representation may be morally
innocent, and yet fraudulent in theory of law. Indeed, the Massachusetts
rule seems to stop little short of the principle laid down by the English
courts of equity, which has been criticised in an earlier Lecture, /2/
since most positive affirmations of facts would at least warrant a jury in
finding that they were reasonably understood to be made as of the party’s
own knowledge, and might therefore warrant a rescission if they turned out
to be untrue. The moral phraseology has ceased to be apposite, and an
external standard of responsibility has been reached. But the
starting-point is nevertheless fraud, and except on the ground of fraud,
as defined by law, I do not think that misrepresentations before the
contract affect its validity, although they lead directly to its making.
But neither the contract nor the implied condition calls for the existence
of the facts as to which the false representations were made. They call
only for the absence of certain false representations. The condition is
not that the promisee shall be a certain other B, or that the contents of
the barrel shall be mackerel, [326] but that the promisee has not lied to
him about material facts.

Then the question arises, How do you determine what facts are material? As
the facts are not required by the contract, the only way in which they can
be material is that a belief in their being true is likely to have led to
the making of the contract.

It is not then true, as it is sometimes said, that the law does not
concern itself with the motives for making contracts. On the contrary, the
whole scope of fraud outside the contract is the creation of false motives
and the removal of true ones. And this consideration will afford a
reasonable test of the cases in which fraud will warrant rescission. It is
said that a fraudulent representation must be material to have that
effect. But how are we to decide whether it is material or not? If the
above argument is correct, it must be by an appeal to ordinary experience
to decide whether a belief that the fact was as represented would
naturally have led to, or a contrary belief would naturally have
prevented, the making of the contract.

If the belief would not naturally have had such an effect, either in
general or under the known circumstances of the particular case, the fraud
is immaterial. If a man is induced to contract with another by a
fraudulent representation of the latter that he is a great-grandson of
Thomas Jefferson, I do not suppose that the contract would be voidable
unless the contractee knew that, for special reasons, his lie would tend
to bring the contract about.

The conditions or grounds for avoiding a contract which have been dealt
with thus far are conditions concerning the conduct of the parties outside
of the itself. [327] Still confining myself to conditions
arising by construction of law,—that is to say, not directly and in
terms attached to a promise by the literal meaning of the words in which
it is expressed,—I now come to those which concern facts to which
the contract does in some way refer.

Such conditions may be found in contracts where the promise is only on one
side. It has been said that where the contract is unilateral, and its
language therefore is all that of the promisor, clauses in his favor will
be construed as conditions more readily than the same words in a bilateral
contract; indeed, that they must be so construed, because, if they do not
create a condition, they do him no good, since ex hypothesi they are not
promises by the other party. /1/ How far this ingenious suggestion has had
a practical effect on doctrine may perhaps be doubted.

But it will be enough for the purposes of this general survey to deal with
bilateral contracts, where there are undertakings on both sides, and where
the condition implied in favor of one party is that the other shall make
good what he on his part has undertaken.

The undertakings of a contract may be for the existence of a fact in the
present or in the future. They can be promises only in the latter case;
but in the former, they be equally essential terms in the bargain.

Here again we come on the law of representations, but in a new phase.
Being a part of the contract, it is always possible that their truth
should make a condition of the contract wholly irrespective of any
question of fraud. And it often is so in fact. It is not, however, every
representation embodied in the words used on one side which will [328]
make a condition in favor of the other party. Suppose A agrees to sell,
and B agrees to buy, “A’s seven-year-old sorrel horse Eclipse, now in the
possession of B on trial,” and in fact the horse is chestnut-colored, not
sorrel. I do not suppose that B could refuse to pay for the horse on that
ground. If the law were so foolish as to aim at merely formal consistency,
it might indeed be said that there was as absolute a repugnancy between
the different terms of this contract as in the ease of an agreement to
sell certain barrels of mackerel, where the barrels turned out to contain
salt. If this view were adopted, there would not be a contract subject to
a condition, there would be no contract at all. But in truth there is a
contract, and there is not even a condition. As has been said already, it
is not every repugnancy that makes a contract void, and it is not every
failure in the terms of the counter undertaking that makes it voidable.
Here it plainly appears that the buyer knows exactly what he is going to
get, and therefore that the mistake of color has no bearing on the
bargain. /1/

If, on the other hand, a contract contained a representation which was
fraudulent, and which misled the party to whom it was made, the contract
would be voidable on the same principles as if the representation had been
made beforehand. But words of description in a contract are very
frequently held to amount to what is sometimes called a warranty,
irrespective of fraud. Whether they do so or not is a question to be
determined by the court on grounds of common sense, looking to the meaning
of the words, the importance in the transaction of the facts [329]
which the words convey, and so forth. But when words of description are
determined to be a warranty, the meaning of the decision is not merely
that the party using them binds himself to answer for their truth, but
that their truth is a condition of the contract.

For instance, in a leading case /1/ the agreement was that the plaintiff’s
ship, then in the port of Amsterdam, should, with all possible despatch,
proceed direct to Newport, England, and there load a cargo of coals for
Hong Kong. At the date of the charter-party the vessel was not in
Amsterdam, but she arrived there four days later. The plaintiff had notice
that the defendant considered time important. It was held that the
presence of the vessel in the port of Amsterdam at the date of the
contract was a condition, the breach of which entitled the defendant to
refuse to load, and to rescind the contract. If the view were adopted that
a condition must be a future event, and that a promise purporting to be
conditional on a past or present event is either absolute or no promise at
all, it would follow that in this case the defendant had never made a
promise. /2/ He had only promised if circumstances existed which did not
exist. I have already stated my objections to this way of looking at such
cases, /2/ and will only add that the courts, so far as I am aware, do not
sanction it, and certainly did not in this instance.

There is another ground for holding the charter-party void and no
contract, instead of regarding it as only voidable, which is equally
against authority, which nevertheless I have never been able to answer
wholly to my satisfaction. In the case put, the representation of the
lessor of the vessel [330] concerned the vessel itself, and therefore
entered into the description of the thing the lessee agreed to take. I do
not quite see why there is not as fatal a repugnancy between the different
terms of this contract as was found in that for the sale of the barrels of
salt described as containing mackerel. Why is the repugnancy between the
two terms,—first, that the thing sold is the contents of these
barrels, and, second, that it is mackerel—fatal to the existence of
a contract? It is because each of those terms goes to the very root and
essence of the contract, /1/—because to compel the buyer to take
something answering to one, but not to the other requirement, would be
holding him to do a substantially different thing from what he promised,
and because a promise to take one and the same thing answering to both
requirements is therefore contradictory in a substantial matter. It has
been seen that the law does not go on any merely logical ground, and does
not hold that every slight repugnancy will make a contract even voidable.
But, on the other hand, when the repugnancy is between terms which are
both essential, it is fatal to the very existence of the contract. How
then do we decide whether a given term is essential? Surely the best way
of finding out is by seeing how the parties have dealt with it. For want
of any expression on their part we may refer to the speech and dealings of
every day, /2/ and say that, if its absence would make the subject-matter
a different thing, its presence is essential to the existence of the
agreement. But the parties may agree that anything, however trifling,
shall be essential, as well [331] as that anything, however important, shall
not be; and if that essential is part of the contract description of a
specific thing which is also identified by reference to the senses, how
can there be a contract in its absence any more than if the thing is in
popular speech different in kind from its description? The qualities that
make sameness or difference of kind for the purposes of a contract are not
determined by Agassiz or Darwin, or by the public at large, but by the
will of the parties, which decides that for their purposes the
characteristics insisted on are such and such. /1/1 Now, if this be true,
what evidence can there be that a certain requirement is essential, that
without it the subject-matter will be different in kind from the
description, better than that one party has required and the other given a
warranty of its presence? Yet the contract description of the specific
vessel as now in the port of Amsterdam, although held to be an implied
warranty, does not seem to have been regarded as making the contract
repugnant and void, but only as giving the defendant the option of
avoiding it. /2/ Even an express warranty of quality in sales does not
have this effect, and in England, indeed, it does not allow the purchaser
to rescind in case of breach. On this last point the law of Massachusetts
is different.

The explanation has been offered of the English doctrine with regard to
sales, that, when the title has passed, the purchaser has already had some
benefit from the contract, and therefore cannot wholly replace the seller
in statu quo, as must be done when a contract is rescinded. /3/ This
reasoning [332] seems doubtful, even to show that the contract is not
voidable, but has no bearing on the argument that it is void. For if the
contract is void, the title does not pass.