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The Common Law by Oliver Wendell Holmes, Jr.

Part 4 out of 8

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give nor receive a reward. /1/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[247] LECTURE VII.

CONTRACT. -- I. HISTORY.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This decision distinctly separated from the mass of actions on
the case a special class arising out of a promise as the source
of the defendant's obligation, and it was only a matter of time

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