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The Common Law by Oliver Wendell Holmes, Jr.

Part 3 out of 8

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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." /l / But this seems to be no more than a
faint shadow of the doctrine explained with regard to larceny,
and does not require any further or special discussion. Trover is
commonly understood to go, like larceny, on the plaintiff's being
deprived of his property, although in practice every possessor
has the action, and, generally speaking, the shortest wrongful
withholding of possession is a conversion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[164] LECTURE V.

THE BAILEE AT COMMON LAW.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The other diversity marked the entrance of the doctrine of
consideration into the law of bailment. Consideration originally
meant quid pro quo, as will be explained hereafter. It was thus
dealt with in Doctor and Student /2/ when the principle was still
young. Chief Justice [183] Popham probably borrowed his
distinction between paid and unpaid bailees from that work, where
common carriers are mentioned as an example of the former class.
A little earlier, reward made no difference. /1/

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

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

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

[183] But about this time important changes took place in the
procedure usually adopted, which must be explained. If the
chattel could be returned in specie, detinue afforded no
satisfaction for damage which it might have suffered through the
bailee's neglect. /1/ The natural remedy for such damage was the
action on the case. But before this could be made entirely
satisfactory, there were certain difficulties to be overcome. The
neglect which occasioned the damage might be a mere omission, and
what was there akin to trespass in a nonfeasance to sustain the
analogy upon which trespass on the case was founded? Moreover, to
charge a man for not acting, you must show that it was his duty
to act. As pleadings were formerly construed, it would not have
been enough to allege that the plaintiff's goods were damaged by
the defendant's negligence. /2/ These troubles had been got over
by the well-known words, super se assumpsit, which will be
explained later. Assumpsit did not for a long time become an
independent action of contract, and the allegation was simply the
inducement to an action of tort. The ground of liability was that
the defendant had started upon the undertaking, so that his
negligent omission, which let in the damage, could be connected
with his acts as a part of his dealing with the thing. /3/ We
shall find Lord Holt recognizing this original purport of
assumpsit when we come to Coggs v. Bernard. 0f 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. /l /
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 modem action of contract in that form [197]
it was required. Hence, it was inferred that, wherever an
assumpsit was laid, even in all action of tort for damage to
property, it was the allegation of a contract, and that a
consideration must be shown for the undertaking, although the
contrary had been decided in the reign of Queen Elizabeth. /1/
But the motion did not prevail, and judgment was given for the
plaintiff. Lord Holt was well aware that the use of an assumpsit
was not confined to contract. It is true that he said, "The
owner's trusting [the defendant] with the goods is a sufficient
consideration to oblige him to a careful management," or to
return them; but this means as distinguished from a consideration
sufficient to oblige him to carry them, which he thought the
defendant would not have been bound to do. He then expressly
says, "This is a different case, for assumpsit does not only
signify a future agreement, but, in such cases as this, it
signifies an actual entry upon the thing and taking the trust
upon himself"; following the earlier cases in the Year Books. /2/
This was enough for the decision, and the rule in Southcote's
Case had nothing to do with the matter. But as the duty of common
carriers by reason of their calling was now supposed to extend to
all kinds of losses, and the doctrine of Southcote's Case was
probably supposed to extend to many kinds of damage, it became
necessary, in a general discussion, to reconcile or elect between
the two principles.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[206] LECTURE VI.

POSSESSION.

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

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

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

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

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

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

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

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

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

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

In the next place, and this was the importance of the last
Lecture to this subject, the common law has always given the
possessory remedies to all bailees without exception. The right
to these remedies extends not only to pledgees, lessees, and
those having a lien, who exclude their bailor, but to simple
bailees, as they have been called, who have no interest in the
chattels, no right of detention as against the owner, and neither

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