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.
So far the discussion has been confined to the general principles of liability, and to the mode of ascertaining the point at which a man begins to act at his own peril. But it does not matter to a man whether he acts at his own peril or not, unless harm comes of it, and there must always be some one within reach of the consequences of the act before any harm can be done. Furthermore, and more to the point, there are certain forms of harm which are not likely to be suffered, and which can never be complained of by any one except a person who stands in a particular relation to the actor or to some other person or thing. Thus it is neither a harm nor a wrong to take fish from a pond unless the pond is possessed or owned by some one, and then only to the possessor or owner. It is neither a harm nor a wrong to abstain from delivering a bale of wool at a certain time and place, unless a binding promise has been made so to deliver it, and then it is a wrong only to the promisee.
The next thing to be done is to analyze those special relations out of which special rights and duties arise. The chief of them—and I mean by the word "relations" relations of fact simply—are possession and contract, and I shall take up those subjects successively.
The test of the theory of possession which prevails in any system of law is to be found in its mode of dealing [165] who have a thing within their power, but not own it, or assert the position of an owner for with regard to it, bailees, in a word. It is therefore, as a preliminary to understanding the common-law theory of possession, to study the common law with regard to bailees.
The state of things which prevailed on the border between England and Scotland within recent times, and which is brought back in the flesh by the ballad of the Fray O'Suport, is very like that which in an earlier century left its skeleton in the folk-laws of Germany and England. Cattle were the principal property known, and cattle-stealing the principal form of wrongful taking of property. Of law there was very little, and what there was depended almost wholly upon the party himself to enforce. The Salic Law of the fifth century and the Anglo-Saxon laws of Alfred are very full in their directions about following the trail. If the cattle were come up with before three days were gone, the pursuer had the fight to take and keep them, subject only to swearing that he lost them against his will. If more than three days went by before the cattle were found, the defendant might swear, if he could, to facts which would disprove the claimant's loss.
This procedure was in truth a legal procedure; but it depended for its beginning and for its execution on the party making the claim. From its "executive" nature, it could hardly have been started by any other than the person on the spot, in whose keeping the cattle were. The oath was to the effect that the party had lost possession against his will. But if all that a man had to swear was that he had lost possession against his will, it is a natural conclusion that the right to take the oath and make use of [166] the procedure depended on possession, and not on ownership. Possession was not merely sufficient, but it was essential. Only he who was in possession could say that he had lost the property against his will, just as only he who was on the spot could follow the cattle. /1/
This, so far as known, was the one means afforded by the early law of our race for the recovery of property lost against one's will. So that, in a word, this procedure, modelled on the self-redress natural to the case which gave rise to it, was the only remedy, was confined to the man in possession, and was not open to the owner unless he was that man.
To this primitive condition of society has been traced a rule which maintained itself to later times and a more civilized procedure, that, if chattels were intrusted by their owner to another person, the bailee, and not the bailor, was the proper party to sue for their wrongful appropriation by a third. It followed that if the bailee, or person [167] so intrusted, sold or gave the goods in his charge to another, the owner could only look to the bailee, and could not sue the stranger; not from any principle in favor of trade, intended to protect those who bought in good faith from parties in possession, but because there was no form of action known which was open to him. But as the remedies were all in the bailee's hands, it also followed that he was bound to hold his bailor harmless. If the goods were lost, it was no excuse that they were stolen without his fault. He alone could recover the lost property, and therefore he was bound to do so.
In the course of time this reason ceased to exist. An owner out of possession could sue the wrongful taker of his property, as well as one who had possession. But the strict liability of the bailee remained, as such rules do remain in the law, long after the causes which gave rise to it had disappeared, and at length we find cause and effect inverted. We read in Beaumanoir (A.D. 1283) that, if a hired thing is stolen, the suit belongs to the bailee, because he is answerable to the person from whom he hired. /1/ At first the bailee was answerable to the owner, because he was the only person who could sue. Now it was said he could sue because he was answerable to the owner.
All the above peculiarities reappear in the Anglo-Norman law, and from that day to this all kinds of bailees have been treated as having possession in a legal sense, as I shall presently show.
It is desirable to prove the native origin of our law of bailment, in order that, when theory comes to be considered, modern German opinion may not be valued at more than its true worth. The only existing theories on [168] the subject come from Germany. The German philosophers who have written upon law have known no other system than the Roman, and the German lawyers who have philosophized have been professors of Roman law. Some rules which we think clear are against what the German civilians would regard as first principles. To test the value of those principles, or at least to prevent the hasty assumption that they are universal, toward which there is a slight tendency among English writers, it is well to realize that we are dealing with a new system, of which philosophy has not yet taken account.
In the first place, we find an action to recover stolen property, which, like the Salic procedure, was based on possession, not on title. Bracton says that one may sue for his chattel as stolen, by the testimony of good men, and that it does not matter whether the thing thus taken was his own property or another's, provided it was in his custody. /1/
The point of especial importance, it will be remembered, was the oath. The oath of the probi homines would seem from the letter of Bracton to have been that the thing was lost (adirata), and this we are expressly told was the fact in a report of the year 1294. "Note that where a man's chattel is lost (ou la chosse de un home est endire), he may count that he [the finder] tortiously detains it, &c., and tortiously for this that whereas he lost the said thing on such a day, &c., he [the loser] came on such a day, &c. [169] (la vynt yl e en jour), and found it in the house of such an one, and told him, &c., and prayed him to restore the Sing, but that he would not restore it, &c., to his damage, &c.; and if he, &c. In this case, the demandant must prove (his own hand the twelfth) that he lost the thing." /1/
Assuming that as the first step we find a procedure kindred to that of the early German folk-laws, the more important question is whether we find any principles similar to those which have just been explained. One of these, it will be remembered, concerned wrongful transfer by the bailee. We find it laid down in the Year Books that, if I deliver goods to a bailee to keep for me, and he sells or gives them to a stranger, the property is vested in the stranger by the gift, and I cannot maintain trespass against him; but that I have a good remedy against the bailee by writ of detinue (for his failure to return the goods). /2/ These cases have been understood, and it would seem on the whole rightly, not merely to deny trespass to the bailor, but any action whatever. Modern writers have added, however, the characteristically modern qualification, that the purchase must be bona fide, and without notice. /3/ It may be answered, that the proposition extends to gifts as well as to sales by the bailee, that there is no such condition in the old books, and that it is contrary to the spirit of the strict doctrines of the common law to read it in. No lawyer needs to be told that, even so qualified, this is no [170] longer the law. /1/ The doctrine of the Year Books must be regarded as a survival from the primitive times when we have seen the same rule in force, unless we are prepared to believe that in the fifteenth century they had a nicer feeling for the rights of bona fide purchasers than at present.
The next point in logical order would be the degree of responsibility to which the bailee was held as towards his bailor who intrusted him. But for convenience I will consider first the explanation which was given of the bailee's right of action against third persons wrongfully taking the goods from his possession. The inverted explanation of Beaumanoir will be remembered, that the bailee could sue because he was answerable over, in place of the original rule, that he was answerable over so strictly because only he could sue. We find the same reasoning often repeated in the Year Books, and, indeed, from that day to this it has always been one of the commonplaces of the law. Thus Hankford, then a judge of the Common Bench, says (circa A.D. 1410), /2/ "If a stranger takes beasts in my custody, I shall have a writ of trespass against him, and shall recover the value of the beasts, because I am chargeable for the beasts to my bailor, who has the property." There are cases in which this reasoning was pushed to the conclusion, that if, by the terms of the trust, the bailee was not answerable for the goods if stolen, he would not have an action against the thief. /3/ The same explanation is repeated to this day. Thus we read in a well- known textbook, [171] "For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action," &c. /1/ In general, nowadays, a borrower or hirer of property is not answerable if it is taken from him against his will, and if the reason offered were a true one, it would follow that, as he was not answerable over, he could not sue the wrong-doer. It would only be necessary for the wrong-doer to commit a wrong so gross as to free the bailee from responsibility, in order to deprive him of his right of action. The truth is, that any person in possession, whether intrusted and answerable over or not, a finder of property as well as a bailee, can sue any one except the true owner for interfering with his possession, as will be shown more particularly at the end of the next Lecture.
The bailor also obtained a right of action against the wrong-doer at a pretty early date. It is laid down by counsel in 48 Edward III., /2/ in an action of trespass by an agister of cattle, that, "in this case, he who has the property may have a writ of trespass, and he who has the custody another writ of trespass. Persay: Sir, it is true. But [172] he who recovers first shall oust the other of the action, and so it shall be in many cases, as if tenant by elegit is ousted, each shall have the assize, and, if the one recover first, the writ of the other is abated, and so here."
It would seem from other books that this was spoken of bailments generally, and was not limited to those which are terminable at the pleasure of the bailor. Thus in 22 Edward IV., counsel say, "If I bail to you my goods, and another takes them out of your possession, I shall have good action of trespass quare vi et armis." /1/ And this seems to have been Rolle's understanding in the passage usually relied on by modern courts. /2/
It was to be expected that some action should be given to the bailor as soon as the law had got machinery which could be worked without help from the fresh pursuit and armed hands of the possessor and his friends. To allow the bailor to sue, and to give him trespass, were pretty nearly the same thing before the action on the case was heard of. Many early writs will be found which show that trespass had not always the clear outline which it developed later. The point which seems to be insisted on in the Year Books is, as Brooke sums it up in the margin of his Abridgment, that two shall have an action for a single act,—not that both shall have trespass rather than case. /3/ It should be added that the Year Books quoted do not go beyond the case of a wrongful taking out of the custody of the bailee, the old case of the folk-laws. /4/ Even thus [173] the right to maintain trespass is now denied where bailee has the exclusive right to the goods by lease or lien; /1/ although the doctrine has been repeated with reference to bailments terminable at the pleasure of the bailor. /2/ But the modified rule does not concern the present discussion, any more than the earlier form, because it still leaves open the possessory remedies to all bailees without exception. This appears from the relation of the modified rule to the ancient law; from the fact that Baron Parke, in the just cited case of Manders v. Williams, hints that he would have been prepared to apply the old rule to its full extent but for Gordon v. Harper, and still more obviously from the fact, that the bailee's right to trespass and trover is asserted in the same breath with that of the bailor, as well as proved by express decisions to be cited.
It is true that in Lotan v. Cross, /3/ Lord Ellenborough ruled at nisi prius that a lender could maintain trespass for damage done to a chattel in the hands of a borrower, and that the case is often cited as authority without remark. Indeed, it is sometimes laid down generally, in reputable text-books, that a gratuitous bailment does not change the possession, but leaves it in the bailor; /4/ that a gratuitous bailee is quasi a servant of the bailor, and the possession of one is the possession of the other; and that it is for this reason that, although the bailee may sue on [174] his possession, the bailor has the same actions. /1/ A part of this confusion has already been explained, and the rest will be when I come to speak of servants, between whom and all bailees there is a broad and well-known distinction. But on whatever ground Lotan v. Cross may stand, if on any, it cannot for a moment be admitted that borrowers in general have not trespass and trover. A gratuitous deposit for the sole benefit of the depositor is a much stronger case for the denial of these remedies to the depositary; yet we have a decision by the full court, in which Lord Ellenborough also took part, that a depositary has case, the reasoning implying that a fortiori a borrower would have trespass. And this has always been the law. /2/ It has been seen that a similar doctrine necessarily resulted from the nature of the early German procedure; and the cases cited in the note show that, in this as in other respects, the English followed the traditions of their race.
The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on the strength of his possession, just as a finder does, and as even a wrongful possessor may have full damages or a return of the specific thing from a stranger to the title. On the other hand, so far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but is probably by a survival, which [175] explained, and which in the modern form of the an anomaly. /1/ The reason usually given is, that a right of immediate possession is sufficient,—a reason which the notion that the bailor is actually possessed.
The point which is essential to understanding the common-law theory of possession is now established: that all bailees from time immemorial have been regarded by the English law as possessors, and entitled to the possessory remedies. It is not strictly necessary to go on and complete the proof that our law of bailment is of pure German descent. But, apart from curiosity, the doctrine remaining to be discussed has had such important influence upon the law of the present day, that I shall follow it out with some care. That doctrine was the absolute responsibility of the bailee to the bailor, if the goods were wrongfully taken from him. /2/
The early text-writers are not as instructive as might be hoped, owing to the influence of the Roman law. Glanvil, however, says in terms that, if a borrowed thing be destroyed or lost in any way while in the borrower's custody, he is absolutely bound to return a reasonable price. /3/ So does Bracton, who partially repeats but modifies the language of Justinian as to commodatum, depositum, and pignus; /4/ and as to the duty of the hirer to use the care of a diligentissimus paterfamilias. /5/
[176] The language and decisions of the courts are perfectly clear; and there we find the German tradition kept alive for several centuries. I begin with the time of Edward II., about 1315. In detinue the plea was that the plaintiff delivered the defendant a chest locked with his key, that the chattels were in the chest, and that they were taken from the defendant together with his own goods by robbery. The replication was that the goods were delivered to the defendant out of enclosure, and Fitzherbert says the party was driven to that issue; /1/ which implies that, if not in the chest, but in the defendant's custody, he was liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest would make any difference; but the old books agree that there is no delivery if the goods are under lock and key; and this is the origin of the distinction as to carriers breaking bulk in modern criminal law. /3/ In the reign of Edward III., /4/ the case of a pledge came up, which seems always to have been regarded as a special bailment to keep as one's own goods. The defence was, that the goods were stolen with the defendant's own. The plaintiff was driven to reply a tender before the theft, which would have put an end to the pledge, and left the defendant a general bailee. /5/ Issue was taken thereon, which confirms the other cases, by implying that in that event the defendant would be liable.
Next I take a case of the time of Henry VI., A.D. 1455. /6/ [177] was an action of debt against the Marshal of the Marshalsea, or jailer of the King's Bench prison, for an escape of a prisoner. Jailers in charge of prisoners were governed by the same law as bailees in charge of cattle. The body of the prisoner was delivered to the jailer to keep under the same liabilities that cows or goods might have been. /1/ He set up in defence that enemies of the king broke into the prison and carried off the prisoner, against the will of the defendant. The question was whether this was a good defence. The court said that, if alien enemies of the king, for instance the French, released the prisoner, or perhaps if the burning of the prison gave him a chance to escape, the excuse would be good, "because then [the defendant] has remedy against no one." But if subjects of the king broke the prison, the defendant would be liable, for they are not enemies, but traitors, and then, it is implied, the defendant would have a right of action against them, and therefore would himself be answerable. In this case the court got very near to the original ground of liability, and distinguished accordingly. The person intrusted was liable in those cases where he had a remedy over against the wrong-doer (and in which, originally, he was the only person who had such a remedy); and, on the other hand, his liability, being founded on that circumstance, ceased where the remedy ceased. The jailer could not sue the soldiers of an invading army of Frenchmen; but in theory he could sue any British subject who carried off the prisoner, however little it was likely that he would get much satisfaction in that way.
A few years later the law is stated the same way by the famous Littleton. He says that, if goods are delivered to [178] a man, he shall have an action of trespass if they are carried off, for he is chargeable over. /1/ That is, he is bound to make the loss good to the party who intrusted him.
In 9 Edward IV., /2/ Danby says if a bailee received goods to keep as his proper goods, then robbery shall excuse him, otherwise not. Again, in a later case /3/ robbery is said not to be an excuse. There may have been some hesitation as to robbery when the robber was unknown, and so the bailee had no remedy over, /4/ or even as to robbery generally, on the ground that by reason of the felony the bailee could not go against either the robber's body or his estate; for the one was hanged and the other forfeited. /5/ But there is not a shadow of doubt that the bailee was not excused by an ordinary wrongful taking. "If the goods are taken by a trespasser, of whom the bailee has conusance, he shall be chargeable to his bailor, and shall have his action over against his trespasser." /6/ The same point was touched in other passages of the Year Books, /7/ and the rule of law is clearly implied by the reason which was given for the bailee's right to sue in the cases cited above.
The principle was directly decided in accordance with the ancient law in the famous case of Southcote v. Bennet. /8/ This was detinue of goods delivered to the defendant to [179] keep safely. The defendant confessed the delivery, and set up he was robbed of the goods by J.S. "And, after argument at the bar, Gawdy and Clench, ceteris absentibus, held that the plaintiff ought to recover, because it was not a special bailment; that the defendant accepted them to keep as his proper goods, and not otherwise; but it is a delivery, which chargeth him to keep them at his peril. And it is not any plea in a detinue to say that he was robbed by one such; for he hath his remedy over by trespass, or appeal, to have them again." The above from Croke's report implies, what Lord Coke expressly says, that "to be kept, and to be kept safe, is all one," and both reports agree that the obligation was founded on the delivery alone. Croke's report confirms the caution which Lord Coke adds to his report: "Note, reader, it is good policy for him who takes any goods to keep, to take them in special manner, scil. to keep them as he keeps his own goods, … or if they happen to be stolen or purloined, that he shall not be answerable for them; for he who accepted them ought to take them in such or the like manner, or otherwise he may be charged by his general acceptance."
Down to this time, at least, it was clear law that, if a person accepted the possession of goods to keep for another even as a favor, and lost them by wrongful taking, wholly without his fault, he was bound to make good the loss, unless when he took possession he expressly stipulated against such a responsibility. The attempts of Lord Holt in Coggs v. Bernard, and of Sir William Jones in his book on Bailments, to show that Southcote v. Bennet was not sustained by authority, were futile, as any one who will Study the Year Books for himself may see. The same principle was laid down seven years before by Peryam, [180] C. B., in Drake v. Royman, /1/ and Southcote's Case was followed as a leading precedent without question for a hundred years.
Thus the circle of analogies between the English and the early German law is complete. There is the same procedure for lost property, turning on the single question whether the plaintiff had lost possession against his will; the same principle that, if the person intrusted with the property parted with it to another, the owner could not recover it, but must get his indemnity from his bailee; the same inverted explanation, that the bailee could sue because he was answerable over, but the substance of the true doctrine in the rule that when he had no remedy he was not answerable; and, finally, the same absolute responsibility for loss, even when happening without fault on the part of the person intrusted. The last and most important of these principles is seen in force as late as the reign of Queen Elizabeth. We have now to follow its later fortunes.
A common carrier is liable for goods which are stolen from him, or otherwise lost from his charge except by the act of God or the public enemy. Two notions have been entertained with regard to the source of this rule: one, that it was borrowed from the Roman law; /2/ the other, that it was introduced by custom, as an exception to the general law of bailment, in the reigns of Elizabeth and James I. /3/
I shall try to show that both these notions are wrong, that this strict responsibility is a fragmentary survival from the general law of bailment which I have just explained; [181] the modifications which the old law has undergone were due in part to a confusion of ideas which came the displacement of detinue by the action on the case, in part to conceptions of public policy which were read into the precedents by Lord Holt, and in part to still later conceptions of policy which have been read into the reasonings of Lord Holt by later judges.
Southcote's Case was decided in the forty-third year of Queen Elizabeth (A.D. 1601). I think the first mention of a carrier, pertinent to the question, occurs in Woodlife's Case, /1/ decided four or five years earlier (38 or 39 Eliz., A.D. 1596 or 1597). It was an action of account for merchandise delivered to the defendant, it would seem as a factor ("pur merchandizer")—clearly not as a carrier. Plea, robbery at sea with defendant's own goods. Gawdy, one of the judges who decided Southcote's Case, thought the plea bad; but Popham, C. J. said that, though it would not be a good plea for a carrier because he is paid for his carriage, there was a difference in this respect between carriers and other servants and factors.
This is repeated in Southcote's Case, and appears to involve a double distinction,—first between paid and unpaid bailees, next between bailees and servants. If the defendant was a servant not having control over the goods, he might not fall within the law of bailment, and factors are treated on the footing of servants in the early law.
The other diversity marked the entrance of the doctrine of consideration into the law of bailment. Consideration originally meant quid pro quo, as will be explained hereafter. It was thus dealt with in Doctor and Student /2/ when the principle was still young. Chief Justice [183] Popham probably borrowed his distinction between paid and unpaid bailees from that work, where common carriers are mentioned as an example of the former class. A little earlier, reward made no difference. /1/
But in Woodlife's Case, in reply to what the Chief Justice had said, Gawdy cited the case of the Marshal of the King's Bench, /2/ stated above, whereupon Popham fell back on the old distinction that the jailer had a remedy over against the rebels, but that there was no remedy over in the case at bar.
The other cases relied on were some of those on general bailment collected above; the same authorities, in short, on which Southcote's Case was founded. The principle adopted was the same as in Southcote's Case, subject only to the question whether the defendant fell within it. Nothing was said of any custom of the realm, or ever had been in any reported case before this time; and I believe this to be the first instance in which carriers are in any way distinguished from any other class of persons intrusted with goods. There is no hint of any special obligation peculiar to them in the old books; and it certainly is not true, that this case introduced one. It will be noticed, with reference to what follows, that Popham does not speak of common carriers, but of carriers.
Next came Southcote's Case /3/ (43 Eliz., A.D. 1601), which presented the old law pure and simple, irrespective of reward or any modern innovation. In this and the earlier instances of loss by theft, the action was detinue, counting, we may presume, simply on a delivery and wrongful detainer.
[183] But about this time important changes took place in the procedure usually adopted, which must be explained. If the chattel could be returned in specie, detinue afforded no satisfaction for damage which it might have suffered through the bailee's neglect. /1/ The natural remedy for such damage was the action on the case. But before this could be made entirely satisfactory, there were certain difficulties to be overcome. The neglect which occasioned the damage might be a mere omission, and what was there akin to trespass in a nonfeasance to sustain the analogy upon which trespass on the case was founded? Moreover, to charge a man for not acting, you must show that it was his duty to act. As pleadings were formerly construed, it would not have been enough to allege that the plaintiff's goods were damaged by the defendant's negligence. /2/ These troubles had been got over by the well-known words, super se assumpsit, which will be explained later. Assumpsit did not for a long time become an independent action of contract, and the allegation was simply the inducement to an action of tort. The ground of liability was that the defendant had started upon the undertaking, so that his negligent omission, which let in the damage, could be connected with his acts as a part of his dealing with the thing. /3/ We shall find Lord Holt recognizing this original purport of assumpsit when we come to Coggs v. Bernard. Of course it was not confined to cases of bailment.
But there was another way besides this by which the defendant could be charged with a duty and made liable [184] in case, and which, although less familiar to lawyers, has a special bearing on the law of carriers in later times. If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a "common" farrier. /1/ The latter principle was also wholly independent of bailment. It expressed the general obligation of those exercising a public or "common" business to practise their art on demand, and show skill in it. "For," as Fitzherbert says, "it is the duty of every artificer to exercise his art rightly and truly as he ought." /2/
When it had thus been established that case would lie for damage when occasioned by the omission, as well as when caused by the act, of the defendant, there was no reason for denying it, even if the negligent custody had resulted in the destruction of the property. /3/ From this it was but a step to extend the same form of action to all cases of loss by a bailee, and so avoid the defendant's right to wage his law. Detinue, the primitive remedy, retained that mark of primitive procedure. The last extension was made about the time of Southcote's Case. /4/ But when the [185] same form of action thus came to be used alike for damage or destruction by the bailee's neglect and for loss by a wrong-doer against whom the bailee had a remedy over, a source was opened for confusion with regard to the foundation and nature of the defendant's duty.
In truth, there were two sets of duties,—one not peculiar to bailees, arising from the assumpsit or public calling of the defendant, as just explained; the other, the ancient obligation, peculiar to them as such, of which Southcote's Case was an example. But any obligation of a bailee might be conceived of as part of a contract of bailment, after assumpsit had become appropriated to contract, the doctrine of consideration had been developed, (both of which had happened in Lord Coke's time,) it seemed unnecessary to distinguish nicely between the two sets of duties just mentioned, provided a consideration and special promise could be alleged. Furthermore, as formerly the defendant's public calling had the same effect as an assumpsit for the purpose of charging him in tort, it seems now to have been thought an equally good substitute for a special promise, in order to charge him in assumpsit. In Rogers v. Head, /1/ the argument was, that to charge one in assumpsit you must show either his public calling at the time of the delivery, or a special promise on sufficient consideration. This argument assumes that a bailee who received goods in the course of a public employment, [186] for instance as a common carrier, could be charged in this form of action for a breach of either of the above sets of duties, by alleging either his public calling or his reward and a special promise. It seems to have been admitted, as was repeatedly decided before and since that case, that one who was not a common carrier could have been charged for non-delivery in a special action; that is, in case as distinguished from assumpsit.
Suppose, next, that the plaintiff sued in case for a tort. As before, the breach of duty complained of might be such damage to property as had always been sued for in that form of action, or it might be a loss by theft for which detinue would formerly have been brought, and which fell on the bailee only by reason of the bailment. If the goods had been stolen, the bailee's liability rested neither on his common calling nor on his assumpsit and his neglect, but arose from the naked facts that he had accepted a delivery and that the goods were gone, and in such cases it ought to have been enough to allege those facts in the declaration. /1/ But it was very natural that the time-honored foundations for the action on the case in its more limited application should still be laid in the pleadings, even after the scope of the action had been enlarged. We shall have to inquire, later, whether the principles of Southcote's Case were not also extended in the opposite direction to cases not falling within it. The reasons for the rule which it laid down had lost their meaning centuries before Gawdy and Clench were born, when owners had acquired the right to sue for the wrongful taking of property in the hands [187] and the rule itself was a dry precedent likely to be followed according to the letter because the spirit had departed. It had begun to totter when the reporter cautioned bailees to accept in such terms as to get rid of it. /1/
Accordingly, although that decision was the main authority relied on for the hundred years between it and Coggs v. Bernard whenever a peculiar responsibility was imposed upon bailees, we find that sometimes an assumpsit was laid as in the early precedents, /2/ or more frequently that the bailee was alleged to be a common bargeman, or common carrier, or the like, without much reference to the special nature of the tort in question; and that the true bearing of the allegation was sometimes lost sight of. At first, however, there were only some slight signs of confusion in the language of one or two cases, and if the duty was conceived to fall within the principle of Southcote's Case, pleaders did not always allege the common or public calling which was held unnecessary. /3/ But they also adopted other devices from the precedents in case, or to strengthen an obligation which they did not well understand. Chief Justice Popham had sanctioned a distinction between paid and unpaid bailees, hence it was deemed prudent to lay a reward. Negligence was of course averred; and finally it became frequent to allege an obligation by the law and custom of the realm. This last deserves a little further attention.
There is no writ in the Register alleging any special obligation of common carriers by the custom of the realm. But the writ against innkeepers did lay a duly "by the [188] law and custom of England," and it was easy to adopt the phrase. The allegation did not so much imply the existence of a special principle, as state a proposition of law in the form which was then usual. There are other writs of trespass which allege a common-law duty in the same way, and others again setting forth a statutory obligation. /1/ So "the judges were sworn to execute justice according to law and the custom of England." /2/
The duties of a common carrier, so far as the earlier evidence goes, were simply those of bailees in general, coupled with the liabilities generally attached to the exercise of a public calling. The word "common" addressed itself only to the latter point, as has been shown above. This is further illustrated by the fact that, when the duty was thus set forth, it was not alleged as an obligation peculiar to common carriers as such, but was laid as the custom of law of common hoymen, or lightermen, &c., according to the business of the party concerned. It will be noticed that Chief Justice Holt in Coggs v. Bernard states the liability as applicable to all bailees for reward, exercising a public employment, and mentions common hoymen and masters of ships alongside of, not as embraced under, common carriers. It will also be noticed in the cases before that time, that there is no settled formula for the obligation in question, but that it is set forth in each case that the defendant was answerable for what he was said to have done or omitted in the particular instance. /3/
[189] Returning now to the succession of the cases, Rich v. Kneeland is the next in order (11 Jac. I., A.D. 1613). It was an action on the case (tort), against a common hoyman. In Croke's report nothing is said of custom; but the declaration avers that the defendant was a common bargeman, that the plaintiff delivered him a portmanteau, &c. to carry, and paid him for it, and that the defendant tam negligenter custodivit, that it was taken from him by persons unknown,—like the second count in Morse v. Slue, below. The plea was demurred to, and adjudged for the plaintiff. A writ of error being brought, it was assigned that "this action lies not against a common bargeman without special promise. But all the Justices and Barons held, that it well lies as against a common carrier upon the land." If we follow this report, it seems at the first glance that importance was attributed to the common calling. But as the loss was clearly within the principle of Southcote's Case, which required neither special promise nor common calling for its application, and which remained unquestioned law for three quarters of a century later, the court must have referred to the form of action employed (case), and not to the liability of the defendant in some form of action (detinue). The objection was that "this action lies not," not that the defendant not liable, "without special promise." Even thus narrowed, it rather countenances the notion that allegations which were necessary to charge a man for damage happening through his neglect, in the more ancient and use of this action, were also necessary in this new [190] extension of it to a different class of wrongs. As it was now pretty clear that case would lie for a nonfeasance, the notion was mistaken, and we shall see that it was denied in subsequent decisions. /1/
According to Hobart's report, it was alleged that the defendant was a common hoyman, to carry goods by water, for hire, &c., that by the custom of England such carriers ought to keep the goods, &c., so as they should not be lost by the default of them or their servants, &c. "And it was resolved that, though it was laid as a custom of the realm, yet indeed it is common law." This last resolution may only mean that the custom of the realm and the common law are the same thing, as had been said concerning innkeepers long before. /2/ But the law as to innkeepers, which was called the custom of the realm in the writ, had somewhat the air of a special principle extending beyond the law of bailment, inasmuch as their liability extended to goods within the inn, of which they had not the custody, and the court may have meant to make an antithesis between such a special principle and the common law or general law of bailment governing the present case.
Whatever doubts some of Croke's language might raise, standing alone, the fact remains indisputable, that for nearly a century from Woodlife's Case the liability of carriers for loss of goods, whether the custom of the realm or the defendant's common calling was alleged or not, was placed upon the authority and was intended to be decided on the principle of Southcote's Case.
[191] Symons v. Darknell 1 (4 Car. I., A.D. 1628) is precisely in point. The declaration was, that, by the common law, every lighterman ought so to manage his lighter that the goods carried therein should not perish. "And although no promise laid, it seemed to the court that the plaintiff should recover; and not alleging that defendant was common lighterman was no harm. Hyde, C. J., delivery makes the contract." This did not mean that delivery was a good consideration for a promise; but, as was laid down in Southcote's Case, that delivery, without a special acceptance to keep only as one's own goods, bound the bailee to keep safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling. Whitlock, J. called attention to the fact that the action was tort, not contract. "Et en cest case … Southcote's Case fuit cite."
The same rule is stated as to bailments in general, the same year, by Sergeant Maynard arguendo in Williams v. Hide, /2/ again citing Southcote's Case.
In Kenrig v. Eggleston /3/ (24 Car. I., A.D. 1648), "case against a country carrier for not delivering a box," &c., of which he was robbed, nothing was said about custom, nor being a common carrier, unless the above words imply that he was; but it was laid down, as in Southcote's Case, that "it must come on the carrier's part acceptance" if he would lessen his liability as bailee.
Nichols v. Moore /4/ (13 Car. II., A.D. 1661) was case against a "water carrier," between Hull and London, laying a delivery to him at York. It was moved in arrest of [192] judgment, that the defendant did not undertake to carry the goods from York to Hull. "But notwithstanding this per totam curiam, the defendant shall be charged on his general receipt at York, according to Southcote's Case."
It is fair to mention that in Matthews v. Hopkins /1/ (17 Car. II.)the declaration was on the custom of the realm against a common carrier, and there was a motion in arrest of judgment, because there was a misrecital of the custom of the realm, and the defendant was not alleged to have been a carrier at the time of the receipt, and also because counts in trover, and in case on the custom, were joined. Judgment was arrested, it would seem on the latter ground, but the court continued: "And, although the declaration may be good without recital of the custom of the realm, as Hobart says, still it is the better way to recite it."
We now come to the great case of Morse v. Slue /2/ (23 & 24 Car. II., A.D. 1671, 1672). This was an action against the master of a ship lying in the river Thames, for the loss of goods intrusted to him. The goods in question were taken away by robbers, and it was found that the ship had the usual guard at the time. There seem to have been two counts, one on the law and custom of England (1 Vent. 190), for masters of ships "carefully to govern, preserve, and defend goods shipped, so long as said ship should remain in the river Thames" (2 Keb. 866); "to keep safely [goods shipped to be carried from London beyond sea] without loss or subtraction, ita quodpro defectu of them they may not come to any damage" (1 Vent. 190); "to keep safely goods delivered to them to carry, dangers [193] of the sea excepted" (2 Levinz, 69; the exception last was perhaps drawn by the reporter from the usual bills of lading referred to in argument). The second count, which is usually overlooked, was a special count "on delivery and being stolen by his neglect." /1/
The case was twice argued, and all the reports agree, as far as they go, in their statements of the points insisted on.
Holt, for the plaintiff, maintained: /2/ 1. That the master receives goods generally, citing Southcote's Case, and that in "only guardian in socage who hath the custody by law, who factor who is servant at the master's dispose, and so cannot take care, are exempt." 2. That the master has a reward for his keeping, and is therefore a proper person to be sued. 3. That the master has a remedy over, citing the case of the Marshal of the King's Bench. /3/ That the mischief would be great if the master were not liable, as merchants put their trust in him, and no particular default be shown, as appears by the bill of lading, and, finally, that neglect appeared.
On the other side, it was urged that no neglect was found, and that the master was only a servant; so that, if any one was liable, the owners were. /4/ It was also suggested that, as there would have been no liability if the goods had been taken at sea, when the case would have within the admiralty law, it was absurd that a different rule should govern the beginning of the voyage from would have governed the rest of it. /5/
[194] On the second argument, it was again maintained for the plaintiff that the defendant was liable "at the common law on the general bailment," citing Southcote's Case, and also that, by the Roman and maritime law, he was liable as a public carrier and master of a ship.
The opinion of the court was delivered by Chief Justice Hale. It was held that, the ship being within the body of the county, the admiralty law did not apply; or, according to 1 Mod. 85, note a, "the master could not avail himself of the rules of the civil law, by which masters are not chargeable pro damno fatali"; that the master was liable to an action because he took a reward; that "he might have made a caution for himself, which he omitting and taking in the goods generally, he shall answer for what happens." /1/ The case of Kenrig v. Eggleston /2/ seems also to have been referred to. It was further said that the master was rather an officer than a servant, and in effect received his wages from the merchant who paid freight. Finally, on the question of negligence, that it was not sufficient to have the usual number of men to guard the ship, but that it was neglect not to have enough to guard the goods, unless in case of the common enemies, citing the case of the Marshal, which it will be remembered was merely the principle of Southcote's Case and the common law of bailment in another form. /3/
It will be observed that this case did not go on any special custom, either as to common carriers or shipmasters, but that all the arguments and the opinion of the court assumed that, if the case was to be governed by the common law, and not by the milder provisions of the civil [195] law relied on for the defence, and if the defendant could be regarded as a bailee, and not merely a servant of the owners, then the general law of bailment would apply, and the defendant would be charged, as in Southcote's Case, "by his general acceptance."
It can hardly be supposed, however, that so enlightened a judge as Sir Matthew Hale would not have broken away the Year Books, if a case had arisen before him where property had been received as a pure favor to the plaintiff, without consideration or reward, and was taken from the defendant by robbery. Such a case was tried before Chief Justice Pemberton, and he very sensibly ruled that no action lay, declining to follow the law of Lord Coke's time to such extreme results /1/ (33 Car. II., A.D. 1681).
About the same time, the defendant's common calling began to assume a new importance. The more important alternative allegation, the assumpsit, had the effect in the end of introducing the not intrinsically objectionable doctrine that all duties arising from a bailment are founded on contract. /2/ But this allegation, having now a special action to which it had given rise, was not much used where the action was tort, while the other averment occurs with increasing frequency. The notion was evidently gaining ground that the liability of common carriers for loss of [196] goods, whatever the cause of the loss might be, arose from a special principle peculiar to them, and not applicable to bailees in general. The confusion of independent duties which has been explained, and of which the first trace was seen in Rich v. Kneeland, was soon to become complete. /1/ Holt became Chief Justice. Three of the cases in the last note were rulings of his. In Lane v. Cotton /2/ (13 Will. III., A.D. 1701), he showed his disapproval of Southcote's Case, and his impression that the common law of bailment was borrowed from Rome. The overthrow of Southcote's Case and the old common law may be said to date from Coggs v. Bernard /3/ (2 Anne, A.D. 1703). Lord Holt's famous opinion in the latter case quotes largely from the Roman law as it filtered to him through Bracton; but, whatever influence that may have had upon his general views, the point decided and the distinctions touching common carriers were of English growth.
The action did not sound in contract. The cause was for damage to the goods, and the plaintiff sued for a tort, laying an assumpsit by way of inducement to a charge of negligence, as in the days of Henry VI. The plea was not guilty. But after verdict for the plaintiff, there was a motion in arrest of judgment, "for that it was not alleged in the declaration that the defendant was a common porter, nor averred that he had anything for his pains." Consideration was never alleged or thought of in the primitive assumpsit, but in the modern action of contract in that form [197] it was required. Hence, it was inferred that, wherever an assumpsit was laid, even in all action of tort for damage to property, it was the allegation of a contract, and that a consideration must be shown for the undertaking, although the contrary had been decided in the reign of Queen Elizabeth. /1/ But the motion did not prevail, and judgment was given for the plaintiff. Lord Holt was well aware that the use of an assumpsit was not confined to contract. It is true that he said, "The owner's trusting [the defendant] with the goods is a sufficient consideration to oblige him to a careful management," or to return them; but this means as distinguished from a consideration sufficient to oblige him to carry them, which he thought the defendant would not have been bound to do. He then expressly says, "This is a different case, for assumpsit does not only signify a future agreement, but, in such cases as this, it signifies an actual entry upon the thing and taking the trust upon himself"; following the earlier cases in the Year Books. /2/ This was enough for the decision, and the rule in Southcote's Case had nothing to do with the matter. But as the duty of common carriers by reason of their calling was now supposed to extend to all kinds of losses, and the doctrine of Southcote's Case was probably supposed to extend to many kinds of damage, it became necessary, in a general discussion, to reconcile or elect between the two principles.
The Chief Justice therefore proceeded to distinguish between [198] bailees for reward exercising a public employment, such as common carriers, common hoymen, masters of ships, &c., and other bailees; denied the rule in Southcote's Case as to the latter; said that the principle of strict responsibility was confined to the former class, and was applied to them on grounds of public policy, and that factors were exonerated, not because they were mere servants, as had always been laid down (among others, by himself in arguing Morse v. Slue), but because they were not within the reason of the rule.
The reader who has followed the argument so far, will hardly need to be convinced that this did not mean the adoption of the Praetor's Edict. There is further evidence at hand if required.
In the first place, as we have seen, there was a century of precedents ending with Morse v. Slue, argued by Holt himself, in which the liability of masters of ships, hoymen, carriers, &c. had been adjudicated. Morse v. Slue is cited and relied on, and there is no hint of dissatisfaction with the other cases. On the contrary, they furnished the examples of bailees for reward exercising a public calling. The distinction between bailees for reward and others is Chief Justice Popham's; the latter qualification (exercising a public calling) was also English, as has partly appeared already, and as will be explained further on.
In the next place, the strict rule is not confined to nautae, caupones, and stabularii, nor even to common carriers; but is applied to all bailees for reward, exercising a public calling.
In the next place, the degree of responsibility is precisely that of bailees in general, as worked out by the previous decisions; but quite unlike and much more severe [199] than that imposed by the Roman law, as others have observed. /1/
And, finally, the exemption from liability for acts of God or the public enemy is characteristically English, as will be proved further on.
But it has been partially shown in this Lecture that the law of to-day has made the carrier's burden heavier than it was in the time of the Year Books. Southcote's Case, and the earlier authorities which have been cited, all refer to a loss by robbery, theft, or trespass, and hold the bailee liable, where, in theory at least, he has a remedy over. It was with reference to such cases, as has been seen, that the rule arose, although it is not improbable that it would have been applied to an unexplained loss; the writ against innkeepers reads absque subtractionie seu amissione custodire. In later times, the principle may have been extended from loss by theft to loss by destruction. In Symons v. Darknoll /2/ (4 Car. I.), already cited as decided on the authority of Southcote's Case, the goods were spoiled, not stolen, and probably had not even perished in specie. Before this time, the old rule had become an arbitrary precedent, followed according to its form with little thought of its true intent.
The language of Coggs v. Bernard is, that "the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king." This was adopted by solemn decision in Lord Mansfield's time, and it is now settled that the common carrier "is liable for all losses which do not fall within the excepted [200] cases." /1/ That is to say, he has become an insurer to that extent, not only against the disappearance or destruction, but against all forms of damage to the goods except as excepted above.
The process by which this came to pass has been traced above, but a few words may be added here. The Year Books, even in dealing with the destruction (as distinguished from the conversion) of chattels in the hands of a bailee, always state his liability as based upon his fault, although it must be admitted that the language is used alio intuitu. /2/ A jettison, in tempest, seems to have been a good plea for a factor in the time of Edward III.; /3/ but that cannot be relied on for an analogy. The argument from the Marshal's case /4/ is stronger. There it appears to have been thought that burning of the prison was as good an excuse for an escape as a release by alien enemies. This must refer to an accidental fire, and would seem to imply that he was not liable in that event, if not in fault. The writs in the Register against bailees to keep or carry goods, all have the general allegation of negligence, and so do the older precedents of declarations, so far as I have observed, whether stating the custom of the realm or not. /5/ But a bailee was answerable for goods wrongfully taken from him, as an innkeeper was for goods stolen from his inn, irrespective of negligence. /6/
It is true that the Marshal's case speaks of his negligent [201] keeping when the prisoners were released by rebels, (although that was far less likely to result from negligence, one would think, than a fire in the prison,) and that after Lord Coke's time negligence was alleged, although the goods had been lost by wrongful taking. So the writ against innkeepers is pro defectu hujusmodi hospitatorum. In these instances, neglect only means a failure de facto to keep safely. As was said at a much later date, "everything is a negligence in a carrier or hoyman that the law does not excuse." /1/ The allegation is simply the usual allegation of actions on the case, and seems to have extended itself from the earlier declarations for damage, when case supplanted detinue and the use of the former action became universal. It can hardly have been immaterial to the case for which it was first introduced. But the short reason for disbelieving that there was any warrant in the old law for making the carrier an insurer against damage is, that there seem to be no early cases in which bailees were held to such a responsibility, and that it was not within the principle on which they were made answerable for a loss by theft.
Having traced the process by which a common carrier has been made an insurer, it only remains to say a word upon the origin of the admitted exceptions from the risk assumed. It has been seen already how loss by the public enemy came to be mentioned by Chief Justice Holt. It is the old distinction taken in the Marshal's case that there the bailee has no remedy over.
With regard to the act of God, it was a general principle, not peculiar to carriers nor to bailees, that a duty was [202] discharged if an act of God made it impossible of performance. Lord Coke mentions the case of jettison from a Gravesend barge, /1/ and another of a party bound to keep and maintain sea-walls from overflowing, as subject to the same limitation, /2/ and a similar statement as to contracts in general will be found in the Year Books. /3/ It is another form of the principle which has been laboriously reargued in our own day, that parties are excused from the performance of a contract which has become impossible before breach from the perishing of the thing, or from change of circumstances the continued existence of which was the foundation of the contract, provided there was no warranty and no fault on the part of the contractor. Whether the act of God has now acquired a special meaning with regard to common carriers may be left for others to consider.
It appears, from the foregoing evidence, that we cannot determine what classes of bailees are subject to the strict responsibility imposed on common carriers by referring to the Praetor's Edict and then consulting the lexicons under Nautoe, Caupones, or Stabularii. The question of precedent is simply to what extent the old common law of bailment still survives. We can only answer it by enumerating the decisions in which the old law is applied; and we shall find it hard to bring them together under a general principle. The rule in Southcote's Case has been done away with for bailees in general: that is clear. But it is equally clear that it has not maintained itself, even within the limits of the public policy invented by Chief Justice [203] Holt. It is not true to-day that all bailees for reward exercising a public calling are insurers. No such doctrine is applied to grain-elevators or deposit-vaults. /1/
How Lord Holt came to distinguish between bailees for reward and others has been shown above. It is more pertinent here to notice that his further qualification, exercising a public calling, was part of a protective system which has passed away. One adversely inclined might say that it was one of many signs that the law was administered in the interest of the upper classes. It has been shown above that if a man was a common farrier he could be charged for negligence without an assumpsit. The same judge who threw out that intimation established in another case that he could be sued if he refused to shoe a horse on reasonable request. /2/ Common carriers and common innkeepers were liable in like case, and Lord Holt stated the principle: "If a man takes upon him a public employment, he is bound to serve the public as far as the employment extends, and for refusal an action lies." /3/ An attempt to apply this doctrine generally at the present day would be thought monstrous. But it formed part of a consistent scheme for holding those who followed useful callings up to the mark. Another part was the liability of persons exercising a public employment for loss or damage, enhanced in cases of bailment by what remained of the rule in Southcote's Case. The scheme has given way to more liberal notions; but the disjecta membra still move.
Lord Mansfield stated his views of public policy in terms [204] not unlike those used by Chief Justice Holt in Coggs v. Bernard, but distinctly confines their application to common carriers. "But there is a further degree of responsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer …. To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless," &c. /1/
At the present day it is assumed that the principle is thus confined, and the discussion is transferred to the question who are common carriers. It is thus conceded, by implication, that Lord Holt's rule has been abandoned. But the trouble is, that with it disappear not only the general system which we have seen that Lord Holt entertained, but the special reasons repeated by Lord Mansfield. Those reasons apply to other bailees as well as to common carriers. Besides, hoymen and masters of ships were not originally held because they were common carriers, and they were all three treated as co-ordinate species, even in Coggs v. Bernard, where they were mentioned only as so many instances of bailees exercising a public calling. We do not get a new and single principle by simply giving a single name to all the cases to be accounted for. If there is a sound rule of public policy which ought to impose a special responsibility upon common carriers, as those words are now understood, and upon no others, it has never yet been stated. If, on the other hand, there are considerations which apply to a particular class among those so designated,—for instance, to railroads, who may have a private individual at their mercy, or exercise a power too vast for the common welfare,—we do not prove that the [205] reasoning extends to a general ship or a public cab by calling all three common carriers.
If there is no common rule of policy, and common carriers remain a merely empirical exception from general doctrine, courts may well hesitate to extend the significance of those words. Furthermore, notions of public policy which would not leave parties free to make their own bargains are somewhat discredited in most departments of the law. /1/ Hence it may perhaps be concluded that, if any new case should arise, the degree of responsibility, and the validity and interpretation of any contract of bailment that there may be, should stand open to argument on general principles, and that the matter has been set at large so far as early precedent is concerned.
I have treated of the law of carriers at greater length than is proportionate, because it seems to me an interesting example of the way in which the common law has grown up, and, especially, because it is an excellent illustration of the principles laid down at the end of the first Lecture. I now proceed to the discussion for the sake of which an account of the law of bailment was introduced, and to which an understanding of that part of the law is a necessary preliminary.
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.
The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less here than elsewhere for historical research. It has been so ably discussed that there is less room here elsewhere for essentially new analysis. But a short of the growth of modern doctrines, whether necessary or not, will at least be interesting, while an analysis of their main characteristics cannot be omitted, and may present some new features.
It is popularly supposed that the oldest forms of contract known to our law are covenant and debt, and they are of early date, no doubt. But there are other contracts still in use which, although they have in some degree put on modern forms, at least suggest the question whether they were not of equally early appearance.
One of these, the promissory oath, is no longer the foundation of any rights in private law. It is used, but as mainly as a solemnity connected with entering upon a public office. The judge swears that he will execute justice according to law, the juryman that he will find his verdict according to law and the evidence, the newly adopted citizen that he will bear true faith and allegiance to the government of his choice.
But there is another contract which plays a more important part. It may, perhaps, sound paradoxical to mention [248] the contract of suretyship. Suretyship, nowadays, is only an accessory obligation, which presupposes a principal undertaking, and which, so far as the nature of the contract goes, is just like any other. But, as has been pointed out by Laferriere, /1/ and very likely by earlier writers, the surety of ancient law was the hostage, and the giving of hostages was by no means confined to international dealings.
In the old metrical romance of Huon of Bordeaux, Huon, having killed the son of Charlemagne, is required by the Emperor to perform various seeming impossibilities as the price of forgiveness. Huon starts upon the task, leaving twelve of his knights as hostages. /2/ He returns successful, but at first the Emperor is made to believe that his orders have been disobeyed. Thereupon Charlemagne cries out, "I summon hither the pledges for Huon. I will hang them, and they shall have no ransom." /3/ So, when Huon is to fight a duel, by way of establishing the truth or falsehood of a charge against him, each party begins by producing some of his friends as hostages.
When hostages are given for a duel which is to determine the truth or falsehood of an accusation, the transaction is very near to the giving of similar security in the trial of a cause in court. This was in fact the usual course of the Germanic procedure. It will be remembered that the earliest appearance of law was as a substitute for the private feuds between families or clans. But while a defendant who did not peaceably submit to the jurisdiction of the court might be put outside the protection of the law, so that any man might kill him at sight, there was at first [249] no way of securing the indemnity to which the plaintiff was entitled unless the defendant chose to give such security. /1/
English customs which have been preserved to us are somewhat more advanced, but one of the noticeable features in their procedure is the giving of security at every step. All lawyers will remember a trace of this in the fiction of John Doe and Richard Roe, the plaintiff's pledges to prosecute his action. But a more significant example is found in the rule repeated in many of the early laws, that a defendant accused of a wrong must either find security or go to prison. /2/ This security was the hostage of earlier days, and later, when the actions for punishment and for redress were separated from each other, became the bail of the criminal law. The liability was still conceived in the same way as when the bail actually put his own body into the power of the party secured.
One of Charlemagne's additions to the Lex Salica speaks of a freeman who has committed himself to the power of another by way of surety. /3/ The very phrase is copied in the English laws of Henry I. /4/ We have seen what this meant in the story of Huon of Bordeaux. The Mirror of Justices /5/ says that King Canute used to judge the mainprisors according as the principals when their principals not in judgment, but that King Henry I. confined Canute's rule to mainprisors who were consenting to the fact.
As late as the reign of Edward III., Shard, an English judge, after stating the law as it still is, that bail are a prisoner's [250] keepers, and shall be charged if he escapes, observes, that some say that the bail shall be hanged in his place. /1/ This was the law in the analogous case of a jailer. /2/ The old notion is to be traced in the form still given by modern writers for the undertaking of bail for felony. They are bound "body for body," /3/ and modern law-books find it necessary to state that this does not make them liable to the punishment of the principal offender if he does not appear, but only to a fine. /4/ The contract also differed from our modern ideas in the mode of execution. It was simply a solemn admission of liability in the presence of the officer authorized to take it. The signature of the bail was not necessary, /5/ and it was not requisite that the person bailed should bind himself as a party. /6/
But these peculiarities have been modified or done away with by statute, and I have dwelt upon the case, not so much as a special form of contract differing from all others as because the history of its origin shows one of the first appearances of contract in our law. It is to be traced to the gradual increase of faith in the honor of a hostage if the case calling for his surrender should arrive, and to the consequent relaxation of actual imprisonment. An illustration may be found in the parallel mode of dealing with the prisoner himself. His bail, to whom his body is supposed to be delivered, have a right to seize him at any time and anywhere, but he is allowed to go at large until [251] surrendered. It will be noticed that this form of contract, like debt as dealt with by the Roman law of the Twelve Tables, and for the same motive, although by a different process, looked to the body of the contracting party as the satisfaction.
Debt is another and more popular candidate for the honors of priority. Since the time of Savigny, the first appearance of contract both in Roman and German law has often been attributed to the case of a sale by some accident remaining incomplete. The question does not seem to be of great philosophical significance. For to explain how mankind first learned to promise, we must go to metaphysics, and find out how it ever came to frame a future tense. The nature of the particular promise which was first enforced in a given system can hardly lead to any truth of general importance. But the history of the action of debt is instructive, although in a humbler way. It is necessary to know something about it in order to understand the enlightened rules which make up the law of contract at the present time.
In Glanvill's treatise the action of debt is found already to be one of the well-known remedies. But the law of those days was still in a somewhat primitive state, and it will easily be imagined that a form of action which goes back as far as that was not founded on any very delicate discriminations. It was, as I shall try to show directly, simply the general form in which any money claim was collected, except unliquidated claims for damages by force, for which there was established the equally general remedy of trespass.
It has been thought that the action was adopted from the then more civilized procedure of the Roman law. A [252] natural opinion, seeing that all the early English law-writers adopt their phraseology and classification from Rome. Still it seems much more probable that the action is of pure German descent. It has the features of the primitive procedure which is found upon the Continent, as described by Laband. /1/
The substance of the plaintiff's claim as set forth in the writ of debt is that the defendant owes him so much and wrongfully withholds it. It does not matter, for a claim framed like that, how the defendant's duty arises. It is not confined to contract. It is satisfied if there is a duty to pay on any ground. It states a mere conclusion of law, not the facts upon which that conclusion is based, and from which the liability arises. The old German complaint was, in like manner, "A owes me so much."
It was characteristic of the German procedure that the defendant could meet that complaint by answering, in an equally general form, that he did not owe the plaintiff. The plaintiff had to do more than simply allege a debt, if he would prevent the defendant from escaping in that way. In England, if the plaintiff had not something to show for his debt, the defendant's denial turned him out of court; and even if he had, he was liable to be defeated by the defendant's swearing with some of his friends to back him that he owed nothing. The chief reason why debt was supplanted for centuries by a later remedy, assumpsit, was the survival of this relic of early days.
Finally, in England as in Germany, debt for the detention of money was the twin brother of the action brought for wrongfully withholding any other kind of chattel. The gist of the complaint in either case was the same.
It seems strange that this crude product of the infancy of law should have any importance for us at the present time. Yet whenever we trace a leading doctrine of substantive law far enough back, we are very likely to find some forgotten circumstance of procedure at its source. Illustrations of this truth have been given already. The action of debt and the other actions of contract will furnish others. Debt throws most light upon the doctrine of consideration.
Our law does not enforce every promise which a man may make. Promises made as ninety-nine promises out of a hundred are, by word of mouth or simple writing, are not binding unless there is a consideration for them. That is, as it is commonly explained, unless the promisee has either conferred a benefit on the promisor, or incurred a detriment, as the inducement to the promise.
It has been thought that this rule was borrowed from Roman law by the Chancery, and, after undergoing some modification there, passed into the common law.
But this account of the matter is at least questionable. So far as the use of words goes, I am not aware that consideration is distinctly called cause before the reign of Elizabeth; in the earlier reports it always appears as quid pro quo. Its first appearance, so far as I know, is in Fleta's account of the action of debt, /1/ and although I am inclined to believe that Fleta's statement is not to be trusted, a careful consideration of the chronological order of the cases in the Year Books will show, I think, that the doctrine was fully developed in debt before any mention of it in equity can be found. One of the earliest [254] references to what a promisor was to have for his undertaking was in the action of assumpsit. /1/ But the doctrine certainly did not originate there. The first mention of consideration in connection with equity which I have seen is in the form of quid pro quo, /2/ and occurs after the requirement had been thoroughly established in debt. /3/
The single fact that a consideration was never required for contracts under seal, unless Fleta is to be trusted against the great weight of nearly contemporaneous evidence, goes far to show that the rule cannot have originated on grounds of policy as a rule of substantive law. And conversely, the coincidence of the doctrine with a peculiar mode of procedure points very strongly to the probability that the peculiar requirement and the peculiar procedure were connected. It will throw light on the question to put together a few undisputed facts, and to consider what consequences naturally followed. It will therefore be desirable to examine the action of debt a little further. But it is only fair to admit, at the outset, that I offer the explanation which follows with great hesitation, and, I think, with a full appreciation of the objections which might be urged.
It was observed a moment ago, that, in order to recover against a defendant who denied his debt, the plaintiff had to show something for it; otherwise he was turned over to the limited jurisdiction of the spiritual tribunals. /4/ This requirement did not mean evidence in the modern sense. It meant simply that he must maintain his cause in one of the ways then recognized by law. These were three, the [255] duel, a writing, and witnesses. The duel need not be discussed, as it soon ceased to be used in debt, and has no bearing on what I have to say. Trial by writing and by witnesses, on the other hand, must both be carefully studied. It will be convenient to consider the latter first and to find out what these witnesses were.
One thing we know at the start; they were not witnesses as we understand the term. They were not produced before a jury for examination and cross-examination, nor did their testimony depend for its effect on being believed by the court that heard it. Nowadays, a case is not decided by the evidence, but by a verdict, or a finding of facts, followed by a judgment. The oath of a witness has no effect unless it is believed. But in the time of Henry II. our trial by jury did not exist. When an oath was allowed to be sworn it had the same effect, whether it was believed or not. There was no provision for sifting it by a second body. In those cases where a trial by witnesses was possible, if the party called on to go forward could find a certain number of men who were willing to swear in a certain form, there was an end of the matter.
Now this seems like a more primitive way of establishing a debt than the production of the defendant's written acknowledgement, and it is material to discover its origin.
The cases in which this mode of trial was used appear from the early books and reports to have been almost wholly confined to claims arising out of a sale or loan. And the question at once occurs, whether we are not upon traces of an institution which was already ancient when Glanvill wrote. For centuries before the Conquest Anglo-Saxon law /1/ had required the election of a certain [256] number of official witnesses, two or three of whom were to be called in to every bargain of sale. The object for which these witnesses were established is not commonly supposed to have been the proof of debts. They go back to a time when theft and similar offences were the chief ground of litigation, and the purpose for which they were appointed was to afford a means of deciding whether a person charged with having stolen property had come by it rightfully or not. A defendant could clear himself of the felony by their oath that he had bought or received the thing openly in the way appointed by law.
Having been present at the bargain, the witnesses were able to swear to what they had seen and heard, if any question arose between the parties. Accordingly, their use was not confined to disposing of a charge of felony. But that particular service identifies the transaction witnesses of the Saxon period. Now we know that the use of these witnesses did not at once disappear under Norman influence. They are found with their old function in the laws of William the Conqueror. /1/ The language of Glanvill seems to prove that they were still known under Henry II. He says that, if a purchaser cannot summon in the man from whom he bought, to warrant the property to him and defend the suit, (for if he does, the peril is shifted to the seller,) then if the purchaser has sufficient proof of his having lawfully bought the thing, de legittimo marcatu suo, it will clear him of felony. But if he have not sufficient suit, he will be in danger. /2/ This is the law of William over again. It follows that purchasers still used the transaction witnesses.
But Glanvill also seems to admit the use of witness to establish debts. /1/ As the transaction witnesses were formerly available for this purpose, I see no reason to doubt that they still were, and that he is speaking of them here also. /2/ Moreover, for a long time after Henry II., whenever an action was brought for a debt of which there was no written evidence, the plaintiff, when asked what he had to show for it, always answered "good suit," and tendered his witnesses, who were sometimes examined by the court. /3/ I think it is not straining the evidence to infer that the "good suit" of the later reports was the descendant of the Saxon transaction witnesses, as it has been shown that Glanvill's secta was. /4/
Assuming this step in the argument to have been taken, it will be well to recall again for a moment the original nature of the witness oath. It was confined to facts within the witnesses' knowledge by sight and hearing. But as the purposes for which witnesses were provided only required their presence when property changed hands, the principal case in which they could be of service between the parties [258] to a bargain was when a debt was claimed by reason of the delivery of property. The purpose did not extend to agreements which were executory on both sides, because there no question of theft could arise. And Glanvill shows that in his time the King's Court did not enforce such agreements. /1/ Now, if the oath of the secta could only be used to establish a debt where the transaction witnesses could have sworn, it will be seen, readily enough, how an accident of procedure may have led to a most important rule of substantive law.
The rule that witnesses could only swear to facts within their knowledge, coupled with the accident that these witnesses were not used in transactions which might create a debt, except for a particular fact, namely, the delivery of property, together with the further accident that this delivery was quid pro quo, was equivalent to the rule that, when a debt was proved by witnesses there must be quid pro quo. But these debts proved by witnesses, instead of by deed are what we call simple contract debts, and thus beginning with debt, and subsequently extending itself to other contracts, is established our peculiar and most important doctrine that every simple contract must have a consideration. This was never the law as to debts or contracts proved in the usual way by the defendant's seal, and the fact that it applied only to obligations which were formerly established by a procedure of limited use, [259] goes far to show that the connection with procedure was not accidental.
The mode of proof soon changed, but as late as the reign of Queen Elizabeth we find a trace of this original connection. It is said, "But the common law requires that there should be a new cause (i. e. consideration), whereof the country may have intelligence or knowledge for the trial of it, if need be, so that it is necessary for the Public-weal." /1/ Lord Mansfield showed his intuition of the historical grounds of our law when he said, "I take it that the ancient notion about the want of consideration was for the sake of evidence only; for when it is reduced into writing, as in covenants, specialties, bonds, etc., there was no objection to the want of consideration." /2/
If it should be objected that the preceding argument is necessarily confined to debt, whereas the requirement of consideration applies equally to all simple contracts, the answer is, that in all probability the rule originated with debt, and spread from debt to other contracts.
But, again, it may be asked whether there were no other contracts proved by witness except those which have been mentioned. Were there no contracts proved in that way to which the accidental consideration was wanting? To this also there is an easy answer. The contracts enforced by the civil courts, even as late as Henry II., were few and simple. The witness procedure was no doubt broad enough for all the contracts which were made in early times. Besides those of sale, loan, and the like, which have been mentioned, I find but two contractual [260] obligations. These were the warranties accompanying a sale and suretyship which was referred to at the beginning of the Lecture. Of the former, warranty of title was rather regarded as an obligation raised by the law out of the relation of buyer and seller than as a contract. Other express warranties were matters within the knowledge of the transaction witnesses, and were sworn to by them in Saxon times. /1/
But in the Norman period warranty is very little heard of, except with regard to land, and then it was decided by the duel. It so wholly disappeared, except where it was embodied in a deed, that it can have had no influence upon the law of consideration. I shall therefore assume, without more detail, that it does not bear upon the case.
Then as to the pledge or surety. He no longer paid with his body, unless in very exceptional cases, but his liability was translated into money, and enforced in an action of debt. This time-honored contract, like the other debts of Glanvill's time, could be established by witness without a writing, /2/ and in this case there was not such a consideration, such a benefit to the promisor, as the law required when the doctrine was first enunciated. But this also is unimportant, because his liability on the oath of witness came to an end, as well as that of the warrantor, before the foundations were laid for the rule which I am seeking to explain. A writing soon came to be required, as will be seen in a moment.
The result so far is, that the only action of contract in Glanvill's time was debt, that the only debts recovered [261] without writing were those which have been described, and that the only one of these for which there was not quid pro quo ceased to be recoverable in that way by the reign of Edward III.
But great changes were beginning in the reign of Henry II. More various and complex contracts soon came to be enforced. It may be asked, Why was not the scope of the witness oath enlarged, or, if any better proof were forthcoming, why was not the secta done away with, and other oral testimony admitted? In any event, what can the law of Henry II.'s time have to do with consideration, which not heard of until centuries later?
It is manifest that a witness oath, which disposes of a case by the simple fact that it is sworn, is not a satisfactory mode of proof. A written admission of debt produced in court, and sufficiently identified as issuing from the defendant, is obviously much better. The only weak point about a writing is the means of identifying it as the defendant's, and this difficulty disappeared as soon as the use of seals became common. This had more or less taken place in Glanvill's time, and then all that a party had to do was to produce the writing and satisfy the court by inspection that the impression on the wax fitted his opponent's seal. /1/ The oath of the secta could always be successfully met by wager of law, /2/ that is, by a counter oath the part of the defendant, with the same or double the number of fellow-swearers produced by the plaintiff. But a writing proved to be the defendant's could not be contradicted. [262] /1/ For if a man said he was bound, he was bound. There was no question of consideration, because there was as yet no such doctrine. He was equally bound if he acknowledged all obligation in any place having a record, such as the superior courts, by which his acknowledgment could be proved. Indeed, to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers. The advantage of the writing was not only that it furnished better proof in the old cases, but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all.
What has been said sufficiently explains the preference of proof by writing to proof by the old-fashioned witness oath. But there were other equally good reasons why the latter should not be extended beyond its ancient limits. The transaction witnesses were losing their statutory and official character. Already in Glanvill's time the usual modes of proving a debt were by the duel or by writing. /2/ A hundred years later Bracton shows that the secta had degenerated to the retainers and household of the party, and he says that their oath raises but a slight presumption. /3/
Moreover, a new mode of trial was growing up, which, although it was not made use of in these cases /4/ for a good while, must have tended to diminish the estimate set on the witness oath by contrast. This was the beginning of our trial by jury. It was at first an inquest of the neighbors [263] most likely to know about a disputed matter of fact. They spoke from their own knowledge, but they were selected by an officer of the court instead of by the interested party, and were intended to be impartial. /1/ Soon witnesses were summoned before them, not, as of old, to the case by their oath, but to aid the inquest to find a verdict by their testimony. With the advent of this enlightened procedure, the secta soon ceased to decide the case, and it may well be asked why it did not disappear and leave no traces.
Taking into account the conservatism of the English law, and the fact that, before deeds came in, the only debts for which there had been a remedy were debts proved by the transaction witnesses, it would not have been a surprise to find the tender of suit persisting in those cases. But there was another reason still more imperative. The defence in debt where there was no deed was by wager of law. /2/ A section of Magna Charta was interpreted to prohibit a man's being put to his law on the plaintiff's own statement without good witness. /3/ Hence, the statute required witness—that is, the secta—in every case of debt where the plaintiff did not rely upon a writing. Thus it happened that suit continued to be tendered in those cases where it had been of old, /4/ and as the defendant, if he did not admit the debt in such cases, always waged his law, it was long before the inquest got much foothold.
To establish a debt which arose merely by way of promise or acknowledgment, and for which there had formerly [264] been no mode of trial provided, you must have a writing, the new form of proof which introduced it into the law. The rule was laid down, "by parol the party is not obliged." /1/ But the old debts were not conceived of as raised by a promise. /2/ They were a "duty" springing from the plaintiff's receipt of property, a fact which could be seen and sworn to. In these cases the old law maintained and even extended itself a little by strict analogy.
But the undertaking of a surety, in whatever form it was clothed, did not really arise out of any such fact. It had become of the same nature as other promises, and it was soon doubted whether it should not be proved by the same evidence. /3/ By the reign of Edward III., it was settled that a deed was necessary, /4/ except where the customs of particular cities had kept the old law in force. /5/
This reign may be taken as representing the time when the divisions and rules of procedure were established which have lasted until the present day. It is therefore worth while to repeat and sum up the condition of the law at that time.
It was still necessary that the secta should be tendered in every action of debt for which no writing was produced. For this, as well as for the other reasons which have been mentioned, the sphere of such actions was not materially enlarged beyond those cases which had formerly been established by the witness-oath. As suretyship was no [265] longer one of these, they became strictly limited to cases in which the debt arose from the receipt of a quid pro quo. Moreover there was no other action of contract which could be maintained without a writing. New species of contracts were now enforced by an action of covenant, but there a deed was always necessary. At the same time the secta had shrunk to a form, although it was still argued that its function was more important in contract than elsewhere. It could no longer be examined before the court. /1/ It was a mere survival, and the transaction witness had ceased to be an institution. Hence, the necessity of tendering the witness oath did not fix the limit of debt upon simple contract except by tradition, and it is not surprising to find that the action was slightly extended by analogy from its scope in Glanvill's time.
But debt remained substantially at the point which I have indicated, and no new action available for simple contracts was introduced for a century. In the mean time the inversion which I have explained took place, and what was an accident of procedure had become a doctrine of substantive law. The change was easy when the debts which could be enforced without deed all sprung from a benefit to the debtor.
The influence of the Roman law, no doubt, aided in bringing about this result. It will be remembered that in the reign of Henry II. most simple contracts and debts for which there was not the evidence of deed or witness were left to be enforced by the ecclesiastical courts, so far as their jurisdiction extended. /2/ Perhaps it was this circumstance [266] which led Glanvill and his successors to apply the terminology of the civilians to common-law debts. But whether he borrowed it from the ecclesiastical courts, or went directly to the fountain-head, certain it is that Glanvill makes use of the classification and technical language of the Corpus Juris throughout his tenth book.
There were certain special contracts in the Roman system called real, which bound the contractor either to return a certain thing put into his hands by the contractee, as in a case of lease or loan, or to deliver other articles of the same kind, as when grain, oil, or money was lent. This class did not correspond, except in the most superficial way, with the common-law debts. But Glanvill adopted the nomenclature, and later writers began to draw conclusions from it. The author of Fleta, a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law, /1/ says that to raise a debt there must be not only a certain thing promised, but a certain thing promised in return. /2/
If Fleta had confined his statement to debts by simple contract, it might well have been suggested by the existing state of the law. But as he also required a writing and a seal, in addition to the matter given or promised in return, the doctrine laid down by him can hardly have prevailed at any time. It was probably nothing more than a slight vagary of reasoning based upon the Roman elements which he borrowed from Bracton.
[267] It only remains to trace the gradual appearance of consideration in the decisions. A case of the reign of Edward III. /1/ seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor's request. It also speaks of the debt or "duty" in that case as arising by cause of payments. Somewhat similar language is used in the next reign. /2/ So, in the twelfth year of Henry IV., /3/ there is an approach to the thought: "If money is promised to a man for making a release, and he makes the release, he will have a good action of debt in the matter." In the next reign /4/ it was decided that, in such a case, the plaintiff could not recover without having executed the release, which is explained by the editor on the ground that ex nudo pacto non oritur actio. But the most important fact is, that from Edward I. to Henry VI. we find no case where a debt was recovered, unless a consideration had in fact been received.
Another fact to be noticed is, that since Edward III. debts arising from a transaction without writing are said to arise from contract, as distinguished from debts arising from an obligation. /5/ Hence, when consideration was required as such, it was required in contracts not under seal, whether debts or not. Under Henry VI. quid pro quo became a necessity in all such contracts. In the third year of that reign /6/ it was objected to au action upon an [268] assumpsit for not building a mill, that it was not shown what the defendant was to have for doing it. In the thirty-sixth year of the same reign (A.D. 1459), the doctrine appears full grown, and is assumed to be familiar. /1/
The case turned upon a question which was debated for centuries before it was settled, whether debt would lie for a sum of money promised by the defendant to the plaintiff if he would marry the defendant's daughter. But whereas formerly the debate had been whether the promise was not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts, it now touched the purely mundane doubt whether the defendant had had quid pro quo.
It will be remembered that the fact formerly sworn to by the transaction witnesses was a benefit to the defendant, namely, a delivery of the things sold or the money lent to him. Such cases, also, offer the most obvious form of consideration. The natural question is, what the promisor was to have for his promise. /2/ It is only by analysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee. It therefore not unnaturally happened that the judges, when they first laid down the law that there must be quid pro quo, were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down. In the case which I have mentioned some of the judges were inclined to hold that getting rid of his daughter was a sufficient benefit to the defendant to make him a debtor for the money which he promised; and there was even some hint of the opinion, that marrying the lady was a [269] consideration, because it was a detriment to the promisee. /1/ But the other opinion prevailed, at least for a time, because the defendant had had nothing from the plaintiff to raise a debt. /2/
So it was held that a service rendered to a third person upon the defendant's request and promise of a reward would not be enough, /3/ although not without strong opinions to the contrary, and for a time the precedents were settled. It became established law that an action of debt would only lie upon a consideration actually received by and enuring to the benefit of the debtor.
It was, however, no peculiarity of either the action or contract of debt which led to this view, but the imperfectly developed theory of consideration prevailing between the reigns of Henry VI. and Elizabeth. The theory the same in assumpsit, /4/ and in equity. /5/ Wherever consideration was mentioned, it was always as quid pro quo, as what the contractor was to have for his contract.
Moreover, before consideration was ever heard of, debt was the time-honored remedy on every obligation to pay money enforced by law, except the liability to damages for a wrong. /6/ It has been shown already that a surety could be sued in debt until the time of Edward III. without a writing, yet a surety receives no benefit from the dealing with his principal. For instance, if a man sells corn to A, [270] and B says, "I will pay if A does not," the sale does B no good so far as appears by the terms of the bargain. For this reason, debt cannot now be maintained against a surety in such a case.
It was not always so. It is not so to this day if there is an obligation under seal. In that case, it does not matter how the obligation arose, or whether there was any consideration for it or not. But a writing was a more general way of establishing a debt in Glanvill's time than witness, and it is absurd to determine the scope of the action by considering only a single class of debts enforced by it. Moreover, a writing for a long time was only another, although more conclusive, mode of proof. The foundation of the action was the same, however it was proved. This was a duty or "duity" /1/ to the plaintiff, in other words, that money was due him, no matter how, as any one may see by reading the earlier Year Books. Hence it was, that debt lay equally upon a judgment, /2/ which established such a duty by matter of record, or upon the defendant's admission recorded in like manner. /3/
To sum up, the action of debt has passed through three stages. At first, it was the only remedy to recover money due, except when the liability was simply to pay damages for a wrongful act. It was closely akin to—indeed it was but a branch of—the action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff. /4/ If there was a contract to pay money, the only question was how you [271] could prove it. Any such contract, which could be proved by any of the means known to early law, constituted a debt. There was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the consideration received.
The second stage was when the doctrine of consideration was introduced in its earlier form of a benefit to the promisor. This applied to all contracts not under seal while it prevailed, but it was established while debt was the only action for money payable by such contracts. The precedents are, for the most part, precedents in debt.
The third stage was reached when a larger view was taken of consideration, and it was expressed in terms of detriment to the promisee. This change was a change in substantive law, and logically it should have been applied throughout. But it arose in another and later form of action, under circumstances peculiarly connected with that action, as will be explained hereafter. The result was that the new doctrine prevailed in the new action, and the old in the old, and that what was really the anomaly of inconsistent theories carried out side by side disguised itself in the form of a limitation upon the action of debt. That action did not remain, as formerly, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a benefit actually received by the promisor. With regard to obligations arising in any other way, it has remained unchanged.
I must now devote a few words to the effect upon our law of the other mode of proof which I have mentioned. I mean charters. A charter was simply a writing. As few could write, most people had to authenticate a document [272] in some other way, for instance, by making their mark. This was, in fact, the universal practice in England until the introduction of Norman customs. /1/ With them seals came in. But as late as Henry II. they were said by the Chief Justice of England to belong properly only to kings and to very great men. /2/ I know no ground for thinking that an authentic charter had any less effect at that time when not under seal than when it was sealed. /3/ It was only evidence either way, and is called so in many of the early cases. /4/ It could be waived, and suit tendered in its place. /5/ Its conclusive effect was due to the satisfactory nature of the evidence, not to the seal. /6/
But when seals came into use they obviously made the evidence of the charter better, in so far as the seal was more difficult to forge than a stroke of the pen. Seals acquired such importance, that, for a time, a man was bound by his seal, although it was affixed without his consent. /7/ At last a seal came to be required, in order that a charter should have its ancient effect. /8/
A covenant or contract under seal was no longer a promise well proved; it was a promise of a distinct nature, for which a distinct form of action came to be provided. [273] /1/ I have shown how the requirement of consideration became a rule of substantive law, and also why it never had any foothold in the domain of covenants. The exception of covenants from the requirement became a rule of substantive law also. The man who had set his hand to a charter, from being bound because he had consented to be, and because there was a writing to prove it, /2/ was now held by force of the seal and by deed alone as distinguished from all other writings. And to maintain the integrity of an inadequate theory, a seal was said to a consideration.
Nowadays, it is sometimes thought more philosophical to say that a covenant is a formal contract, which survives alongside of the ordinary consensual contract, just as happened in the Roman law. But this is not a very instructive way of putting it either. In one sense, everything is form which the law requires in order to make a promise binding over and above the mere expression of the promisor's will. Consideration is a form as much as a seal. The only difference is, that one form is of modern introduction, and has a foundation in good sense, or at least in with our common habits of thought, so that we do not notice it, whereas the other is a survival from an older condition of the law, and is less manifestly sensible, or less familiar. I may add, that, under the influence of the latter consideration, the law of covenants is breaking down. In many States it is held that a mere scroll or flourish of the pen is a sufficient seal. From this it is a short step to abolish the distinction between sealed and unsealed instruments altogether, and this has been done in some of the Western States.
[274] While covenants survive in a somewhat weak old age, and debt has disappeared, leaving a vaguely disturbing influence behind it, the whole modern law of contract has grown up through the medium of the action of Assumpsit, which must now be explained.
After the Norman conquest all ordinary actions were begun by a writ issuing from the king, and ordering the defendant to be summoned before the court to answer the plaintiff. These writs were issued as a matter of course, in the various well-known actions from which they took their names. There were writs of debt and of covenant; there were writs of trespass for forcible injuries to the plaintiff's person, or to property in his possession, and so on. But these writs were only issued for the actions which were known to the law, and without a writ the court had no authority to try a case. In the time of Edward I. there were but few of such actions. The cases in which you could recover money of another fell into a small number of groups, for each of which there was a particular form of suing and stating your claim.
These forms had ceased to be adequate. Thus there were many cases which did not exactly fall within the definition of a trespass, but for which it was proper that a remedy should be furnished. In order to furnish a remedy, the first thing to be done was to furnish a writ. Accordingly, the famous statute of 13 Edward I., c. 24, authorized the office from which the old writs issued to frame new ones in cases similar in principle to those for which writs were found, and requiring like remedy, but not exactly falling within the scope of the writs already in use.
Thus writs of trespass on the case began to make their appearance; that is, writs stating a ground of complaint [275] to a trespass, but not quite amounting to a trespass as it had been sued for in the older precedents. To take an instance which is substantially one of the earliest cases, suppose that a man left a horse with a blacksmith to be shod, and he negligently drove a nail into the horse's foot. It might be that the owner of the horse could not have one of the old writs, because the horse was not in his possession when the damage was done. A strict trespass property could only be committed against the person in possession of it. It could not be committed by one who was in possession himself. /1/ But as laming the horse was equally a wrong, whether the owner held the horse by the bridle or left it with the smith, and as the wrong was closely analogous to a trespass, although not one, the law gave the owner a writ of trespass on the case. /2/
An example like this raises no difficulty; it is as much an action of tort for a wrong as trespass itself. No contract was stated, and none was necessary on principle. But this does not belong to the class of cases to be considered, for the problem before us is to trace the origin of assumpsit, which is an action of contract. Assumpsit, however, began as an action of trespass on the case, and the thing to be discovered is how trespass on the case ever became available for a mere breach of agreement.
It will be well to examine some of the earliest cases in which an undertaking (assumpsit) was alleged. The first reported in the books is of the reign of Edward III. /3/ The plaintiff alleged that the defendant undertook to carry the plaintiff's horse safely across the Humber, but surcharged [276] the boat, by reason of which the horse perished. It was objected that the action should have been either covenant for breach of the agreement, or else trespass. But it was answered that the defendant committed a wrongful act when he surcharged the boat, and the objection was overruled. This case again, although an undertaking was stated, hardly introduced a new principle. The force did not proceed directly from the defendant, to be sure, but it was brought to bear by the combination of his overloading and then pushing into the stream.
The next case is of the same reign, and goes further. /1/ The writ set forth that the defendant undertook to cure the plaintiff's horse of sickness (manucepit equum praedicti W. de infirmirate), and did his work so negligently that the horse died. This differs from the case of laming the horse with a nail in two respects. It does not charge any forcible act, nor indeed any act at all, but a mere omission. On the other hand, it states an undertaking, which the other did not. The defendant at once objected that this was an action for a breach of an undertaking, and that the plaintiff should have brought covenant. The plaintiff replied, that he could not do that without a deed, and that the action was for negligently causing the death of the horse; that is, for a tort, not for a breach of contract. Then, said the defendant, you might have had trespass. But the plaintiff answered that by saying that the horse was not killed by force, but died per def. de sa cure; and upon this argument the writ was adjudged good, Thorpe, J. saying that he had seen a man indicted for killing a patient by want of care (default in curing), whom he had undertaken to cure.
[277] Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespass. In the case last stated, especially, the destroying force did not proceed from the defendant in any sense. And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all?
I attempt to answer it, let me illustrate a little further by examples of somewhat later date. Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage. The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant. Yet in this instance also the judges thought that trespass on the case would lie. /2/ In the time of Henry IV. the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise." /3/
[278] I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned damage to the one or the other. In view of this fact, Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant. The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject.
The meaning of that analogy is plain. Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will. To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death. It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord. It would not matter whether the wickedness began with the act, or with the subsequent omission.
The same reasoning applies to civil liability. A carpenter need not go to work upon another man's house at all, but if he accepts the other's confidence and intermeddles, he cannot stop at will and leave the roof open to the weather. So in the case of the farrier, when he had taken charge of the horse, he could not stop at the critical moment [279] and leave the consequences to fortune. So, still more clearly, when the ferryman undertook to carry a horse across the Humber, although the water drowned the horse, his remote acts of overloading his boat and pushing it into the stream in that condition occasioned the loss, and he was answerable for it.